[Federal Register Volume 81, Number 236 (Thursday, December 8, 2016)]
[Rules and Regulations]
[Pages 88940-88972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29126]



[[Page 88939]]

Vol. 81

Thursday,

No. 236

December 8, 2016

Part VII





 Department of Education





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 34 CFR Part 200





 Every Student Succeeds--Innovative Assessment Demonstration Authority; 
Final Rule

  Federal Register / Vol. 81 , No. 236 / Thursday, December 8, 2016 / 
Rules and Regulations  

[[Page 88940]]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

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


Every Student Succeeds--Innovative Assessment Demonstration 
Authority

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

ACTION: Final regulations.

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SUMMARY: The Secretary issues final 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: These regulations are effective January 9, 2017.

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 system, including for use in the statewide 
accountability system, with the goal of using the innovative assessment 
system after the demonstration authority ends to meet the academic 
assessment and statewide accountability system requirements under title 
I, part A of the ESEA. Aligned with President Obama's Testing Action 
Plan, released in October 2015, the demonstration authority seeks to 
help States interested in fostering and scaling high-quality, 
innovative assessments.\1\ An SEA would require this demonstration 
authority under title I, part B, if the SEA is proposing to develop an 
innovative assessment in any required grade or subject and administer 
the assessment, initially, to students in only a subset of its local 
educational agencies (LEAs) or schools without also continuing 
administration of its current statewide assessment in that grade or 
subject to all students in those LEAs or schools, including for school 
accountability and reporting purposes under title I, part A, as it 
scales the innovative assessment statewide. Unless otherwise noted, 
references in this document to the ESEA refer to the ESEA as amended by 
the ESSA.
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    \1\ For more information regarding President Obama's Testing 
Action Plan, please see: http://www2.ed.gov/admins/lead/account/saa.html; see also: www.ed.gov/news/press-releases/fact-sheet-testing-action-plan.
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    On July 11, 2016, the Secretary published a notice of proposed 
rulemaking (NPRM) for the title I, part B regulations pertaining to the 
innovative assessment demonstration authority in the Federal Register 
(81 FR 44958). We issue 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 
following is a summary of the major substantive changes in these final 
regulations from the regulations proposed in the NPRM. (The rationale 
for each of these changes is discussed in the Analysis of Comments and 
Changes section elsewhere in this preamble.)
     The Department has renumbered the proposed regulatory 
sections, as follows, in the final regulations:

--New section 200.104 (proposed Sec.  200.76) entitled ``Innovative 
assessment demonstration authority.''
--New section 200.105 (proposed Sec.  200.77) entitled ``Demonstration 
authority application requirements.''
--New section 200.106 (proposed Sec.  200.78) entitled ``Innovative 
assessment selection criteria.''
--New section 200.107 (proposed Sec.  200.79) entitled ``Transition to 
statewide use.''
--New section 200.108 (proposed Sec.  200.80) entitled ``Extensions, 
waivers, and withdrawal of authority.''

     The Department has made a number of changes to new Sec.  
200.104 (proposed Sec.  200.76), which provides definitions and 
describes general requirements for SEAs and consortia of SEAs applying 
for and implementing the innovative assessment demonstration authority:

--Section 200.104(b)(1) has been added to define an ``affiliate member 
of a consortium'' to be an SEA that is formally associated with a 
consortium of SEAs that is implementing the innovative assessment 
demonstration authority, but is not yet a full member of the consortium 
because it is not proposing to use the consortium's innovative 
assessment system under the demonstration authority.
--Section 200.104(b)(3) has been revised to clarify the definition of 
``innovative assessment system'' to indicate that an innovative 
assessment system:

     Produces an annual summative determination of each 
student's mastery of grade-level content standards aligned to the 
challenging State academic standards under section 1111(b)(1) of the 
ESEA.
     In the case of a student with the most significant 
cognitive disabilities assessed with an alternate assessment aligned 
with alternate academic achievement standards (AA-AAAS) under section 
1111(b)(1)(E) of the ESEA and aligned with the State's academic content 
standards for the grade in which the student is enrolled, produces an 
annual summative determination relative to such alternate academic 
achievement standards for each such student;
     May include any combination of general assessments or AA-
AAAS in reading/language arts, mathematics, or science; and
     May, in any required grade or subject, include one or more 
types of assessments listed in Sec.  200.104(b)(3)(ii).

--Section 200.104(b)(4) has been added to define a ``participating 
LEA'' as an LEA in the State with at least one

[[Page 88941]]

school participating in the innovative demonstration authority.
--Section 200.104(b)(5) has been added to define ``participating 
school'' as a public school in the State in which the innovative 
assessment system is administered under the innovative assessment 
demonstration authority instead of the statewide assessment and where 
the results of the school's students on the innovative assessment 
system are used by its State and LEA for purposes of accountability and 
reporting.

     The Department made a number of changes to Sec.  200.105 
(proposed Sec.  200.77), which sets forth the application requirements 
that an SEA or consortium of SEAs must meet in order to receive 
approval to implement demonstration authority:

--Section 200.105(a) has been revised to require collaboration with 
representatives of Indian tribes located in the State and to clarify 
that in consulting parents, States must consult parents of children 
with disabilities, English learners and other subgroups under section 
1111(c)(2) of the ESEA.
--Section 200.105(b) has been revised to clarify that the innovative 
assessment system may be administered to a subset of LEAs or schools 
within an LEA, and must be administered to all students within the 
participating LEA or schools within the LEA, except that an LEA may 
continue to administer an AA-AAAS that is not part of the innovative 
assessment system to students with the most significant cognitive 
disabilities, consistent with section 1111(b)(1)(E) of the ESEA.
--Section 200.105(b)(2) has been revised to clarify that the innovative 
assessment must align with the challenging State academic content 
standards for the grade in which the student is enrolled. In addition, 
Sec.  200.105(b)(2)(ii) clarifies that the innovative assessment may 
include items above or below a student's grade level so long as the 
State measures each student's academic proficiency based on the 
challenging State academic standards for the grade in which the student 
is enrolled.
--Section 200.105(b)(4) has been revised to clarify that determinations 
of the comparability between the innovative and statewide assessment 
system must be based on results, including annual summative 
determinations, as defined in Sec.  200.105(b)(7), that are generated 
for all students and for each subgroup of students.
--Section 200.105(b)(4)(i)(C) has been revised to clarify that States 
may include, as a significant portion of the innovative assessment 
system in each required grade and subject in which both an innovative 
and statewide assessment is administered, items or performance tasks 
from the statewide assessment system that, at a minimum, have been 
previously pilot tested or field tested for use in the statewide 
assessment system.
--Section Sec.  200.105(b)(4)(i)(D) has been added to clarify that 
States may include, as a significant portion of the statewide 
assessment system in each required grade and subject in which both an 
innovative and statewide assessment is administered, items or 
performance tasks from the innovative assessment system that, at a 
minimum, have been previously pilot tested or field tested for use in 
the innovative assessment system.
--Section Sec.  200.105(b)(4)(ii) has been added to require that 
States' innovative assessment systems generate results, including 
annual summative determinations, that are valid, reliable, and 
comparable for all students and for each subgroup of students among 
participating schools and LEAs, which an SEA must annually determine as 
part of its evaluation plan described in Sec.  200.106(e) (proposed 
Sec.  200.78(e)).
--Section 200.105(b)(7) has been revised to require that the innovative 
assessment produce an annual summative determination of achievement for 
each student that describes--

     The student's mastery of the challenging State academic 
standards (i.e., both the State's academic content and achievement 
standards) for the grade in which the student is enrolled; and
     In the case of a student with the most significant 
cognitive disabilities assessed with an AA-AAAS under section 
1111(b)(1)(E) of the ESEA, the student's mastery of those alternate 
academic achievement standards.
--Section 200.105(d)(4) has been revised to require that each 
participating LEA inform parents of all students in participating 
schools about the innovative assessment and that information shared 
with parents include the grades and subjects in which the innovative 
assessment will be administered.
--Section 200.105(f)(2) has been added to clarify that a consortium 
must submit a revised application to the Secretary in order for an 
affiliate member to become a full member of the consortium and use the 
consortium's innovative assessment system under the demonstration 
authority.

     The Department made a number of changes to Sec.  200.106 
(proposed Sec.  200.78), which describes the selection criteria the 
Secretary will use to evaluate an application for demonstration 
authority:

--Section 200.106(a)(3)(iii) has been revised to clarify that the 
baseline for setting annual benchmarks toward high-quality and 
consistent implementation across schools that are demographically 
similar to the State as a whole is the demographics of participating 
schools, not participating LEAs.
--Section 200.106(d) has been revised to clarify that each SEA or 
consortium's application must include a plan for delivering supports to 
educators that can be consistently provided at scale; will be evaluated 
on the extent to which training for LEA and school staff will develop 
teacher capacity to provide instruction that is informed by the 
innovative assessment system results; and should describe strategies 
and safeguards to support educators and staff in developing and scoring 
the innovative assessment, including how the strategies and safeguards 
are sufficient to ensure objective and unbiased scoring of innovative 
assessments. Section 200.106(d) has also been revised to provide for 
the SEA or consortium to include supports for parents, in addition to 
educators and students, and require States to describe their strategies 
to familiarize parents as well as students with the innovative 
assessment system.

     The Department has revised Sec.  200.107 (proposed Sec.  
200.79) to clarify that the baseline year used for purposes of 
evaluating the innovative assessment to determine if a State may 
administer the assessment statewide is the first year the innovative 
assessment is administered by a participating LEA under the 
demonstration authority.
    Costs and Benefits: The Department believes 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 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. Please refer to the 
Regulatory Impact Analysis section of this document for a more detailed

[[Page 88942]]

discussion of costs and benefits. Consistent with Executive Order 
12866, the Office of Management and Budget (OMB) has determined that 
this action is significant and, thus, is subject to review by OMB under 
the Executive order.
    Public Comment: In response to our invitation to comment in the 
NPRM, 89 parties submitted comments on the proposed regulations.
    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain, except for a number of cross-cutting 
issues, which are discussed together under the heading ``Cross-cutting 
issues.'' Generally, we do not address technical and other minor 
changes, or suggested changes the law does not authorize us to make 
under the applicable statutory authority. In addition, we do not 
address general comments that raised concerns not directly related to 
the proposed regulations or that were otherwise outside the scope of 
the regulations, including comments that raised concerns pertaining to 
instructional curriculum, particular sets of academic standards or 
assessments or the Department's authority to require a State to adopt a 
particular set of academic standards or assessments, as well as 
comments pertaining to the Department's regulations on statewide 
accountability systems, data reporting, and State plans.
    Tribal Consultation: The Department held four tribal consultation 
sessions on April 24, April 28, May 12, and June 27, 2016, pursuant to 
Executive Order 13175 (``Consultation and Coordination with Indian 
Tribal Governments''). The purpose of these tribal consultation 
sessions was to solicit tribal input on the ESEA, including input on 
several changes that the ESSA made to the ESEA that directly affect 
Indian students and tribal communities. The Department specifically 
sought input on: The new grant program for Native language Immersion 
schools and projects; the report on Native American language medium 
education; and the report on responses to Indian student suicides. The 
Department announced the tribal consultation sessions via listserv 
emails and Web site postings on http://www.edtribalconsultations.org/. 
The Department considered the input provided during the consultation 
sessions in developing the proposed requirements.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the regulations since publication of the NPRM 
follows.

Cross-Cutting Issues

Reorganization and Renumbering of the Proposed Regulations
    Comments: None.
    Discussion: The NPRM included proposed regulatory sections to 
implement the innovative assessment demonstration authority in 
Sec. Sec.  200.75 through 200.80. However, some of these sections 
contain existing regulations that have not yet been removed and 
reserved. Accordingly, we are revising the final regulations by 
renumbering the proposed sections, as follows:
     New Sec.  200.104 (proposed Sec.  200.76) entitled 
``Innovative assessment demonstration authority.''
     New Sec.  200.105 (proposed Sec.  200.77) entitled 
``Demonstration authority application requirements.''
     New Sec.  200.106 (proposed Sec.  200.78) entitled 
``Innovative assessment selection criteria.''
     New Sec.  200.107 (proposed Sec.  200.79) entitled 
``Transition to statewide use.''
     New Sec.  200.108 (proposed Sec.  200.80) entitled 
``Extensions, waivers, and withdrawal of authority.''
    Changes: We have revised the final regulations by renumbering the 
regulatory sections, as proposed. As a result, we have added Sec. Sec.  
200.104 through 200.108 in the final regulations, which describe the 
demonstration authority, in general; application requirements; 
selection criteria; transition to statewide use; and extensions, 
waivers, and withdrawal of authority.
Overtesting
    Comments: A few commenters raised concerns that the proposed 
requirements impose new testing requirements. Of these commenters, a 
few expressed concern that the assessments would serve to punish 
teachers who work with children who are struggling academically. Others 
were concerned that the assessments would be inappropriately used for 
high stakes decisions.
    Discussion: Neither section 1204 of the ESEA nor the proposed 
regulations impose new assessment requirements beyond those required by 
title I, part A of the ESEA. Accurate and reliable measurement of 
student achievement based on annual State assessments in reading/
language arts and mathematics remains a core component of State 
assessment and accountability systems under the ESSA. In support of 
these goals, section 1111(b)(2)(B)(v)(I) of the ESEA requires annual 
assessments in reading/language arts and mathematics to be administered 
to all students in each of grades 3 through 8, and at least once 
between grades 9 and 12. Section 1204 allows a State to pilot new 
innovative assessments under a demonstration authority, but requires 
that each State assess all students on the applicable assessments, 
using either the innovative assessment in participating LEAs and 
schools or the statewide assessment in non-participating LEAs and 
schools. No State is required to participate in the innovative 
assessment demonstration authority. Finally, while States are required 
to use the results of State assessments in statewide accountability 
systems, consistent with sections 1111(c) and 1111(d) of the ESEA, 
there are no further requirements for how assessment results are used, 
including for teacher evaluation or student advancement and promotion 
decisions. Decisions about the use of test results for those purposes 
remain a State and local decision.
    Changes: None.
    Comments: One commenter commended the Department for allowing 
States the option to pilot a new assessment in a subset of schools 
rather than the entire State, but stressed that true innovation is 
needed to reduce the unnecessary and high stakes associated with 
assessments in the United States. The commenter encouraged the 
Department to look for opportunities to reduce testing, particularly 
for high stakes purposes. Another commenter noted that districts are 
already required to track student growth through Response to 
Intervention in kindergarten through grade 5 (K-5), so having State 
assessments in grades 3-5 is duplicative testing.
    Discussion: Section 1111(b)(2)(B)(v)(I) of the ESEA requires that 
each State administer reading/language arts and mathematics assessments 
in each of grades 3 through 8 and at least once in grades 9 through 12; 
while some schools may be required by their LEA or State to use 
Response to Intervention in grades K-5, there is no Federal requirement 
to do so. We believe that while the ESEA maintains this core 
requirement for annual assessment, it also presents States with 
opportunities to streamline low-quality or duplicative testing. Each 
State, in coordination with its LEAs, should continue to consider 
additional action it may take to reduce burdensome and unnecessary 
testing. We know that annual assessments, as required by the ESSA, are 
tools for learning and promoting equity when they are done well and 
thoughtfully. When assessments are done poorly, in excess, or without a 
clear purpose, they take time away from teaching and learning. The 
President's Testing Action Plan provides a set of principles and

[[Page 88943]]

actions that the Department put forward to help protect the vital role 
that good assessments play in guiding progress for students, advancing 
equity for all, and evaluating schools, while providing help in 
reducing practices that have burdened classroom time or not served 
students or educators well. We plan to issue further non-regulatory 
guidance to help States and LEAs use the provisions of the ESEA to take 
actions aligned with the Testing Action Plan to improve assessment 
quality and reduce the burden of unnecessary and duplicative testing.
    Changes: None.
Parental Rights
    Comments: One commenter noted the importance of parental 
involvement in issues pertaining to State assessments under the ESEA, 
including test design, reporting, and use of test results, and voiced 
support for parents' rights to make decisions around their child's 
participation in assessments. Another commenter was supportive of 
expecting students to take assessments, but concerned--given the 
decisions some parents make to opt their children out of taking 
assessments--about requiring that a 95 percent participation rate among 
students and subgroups of students be a factor for school 
accountability purposes. The commenter suggested that the final 
regulations make 95 percent participation a goal, rather than a 
requirement, and expect States to review participation rates in schools 
that fail to assess at least 95 percent of their students.
    Discussion: We agree with commenters that it is important to seek 
and consider input from parents when designing and implementing State 
assessment systems and policies. Accurate and reliable measurement of 
student achievement based on annual State assessments in reading/
language arts and mathematics remains a core component of State 
assessment and accountability systems under the ESEA. In support of 
these goals, section 1111(b)(2)(B)(i) and (v)(I) of the ESEA requires 
annual assessments in reading/language arts and mathematics to be 
administered to all students in each of grades 3 through 8, and at 
least once between grades 9 and 12. Section 1111(c)(4)(E) of the ESEA 
also requires that States hold schools accountable for assessing at 
least 95 percent of their students. The statute reiterates these 
critical requirements for holding participating schools in the 
innovative assessment demonstration authority accountable, as described 
in sections 1204(e)(2)(ix) and 1204(j)(1)(B)(v)(II), which both 
reference the requirements in section 1111(c) in the application 
requirements and requirements for transitioning to using the innovative 
assessment system statewide. All States, regardless of their 
participation in innovative assessment demonstration authority, are 
responsible for ensuring that all students participate in the State's 
annual assessments and that all schools meet the statutory and 
applicable regulatory requirements to hold schools accountable for the 
95 percent participation rate requirement. The final regulations for 
the innovative assessment demonstration authority, like the proposed 
regulations, are designed to assist States in fulfilling this 
responsibility.
    Changes: None.
    Comments: A few commenters raised concerns that the proposed 
regulations will impose new data collection requirements that might 
lead to data mining. These commenters were particularly concerned about 
student privacy and the right of parents to protect their students' 
data from being collected.
    Discussion: We agree with the commenters' concern that it is 
paramount to protect student privacy. New Sec.  200.105(b)(8) (proposed 
Sec.  200.77(b)(8)) requires that each State and LEA report student 
results on the innovative assessment, consistent with sections 
1111(b)(2)(B) and 1111(h) of the ESEA, including section 
1111(b)(2)(B)(xi), which provides that in reporting disaggregated 
results, the State, LEA, and school may not reveal personally 
identifiable information about an individual student. Further, new 
Sec.  200.105(d)(3)(ii) (proposed Sec.  200.77(d)(3)(ii)) requires that 
any data submitted to the Secretary regarding the State's 
implementation of the innovative assessment demonstration authority may 
not reveal any personally identifiable information. We disagree with 
the commenters that this regulation requires new student-level data to 
be publicly reported beyond those requirements in the statute; rather, 
it requires that any State choosing to participate in the innovative 
assessment demonstration authority continue to meet the reporting 
requirements of sections 1111(b)(2)(B) and 1111(h) of the ESEA.
    Changes: None.
Stakeholder Engagement
    Comments: Multiple commenters supported the proposed regulations 
for prioritizing meaningful consultation with stakeholders in various 
phases of the innovative assessment demonstration authority, such as in 
developing States' applications and plans for innovative assessment 
demonstration authority in proposed Sec.  200.77(a)(2) and in requiring 
ongoing feedback from stakeholders on implementation in proposed Sec.  
200.77(d)(3)(iv). These commenters appreciated that the proposed 
regulations emphasized a meaningful role for assessment experts; 
parents and parent organizations; teachers, principals and other school 
leaders, and local teacher organizations (including labor 
organizations); local school boards; groups representing the interests 
of particular subgroups of students, including English learners, 
children with disabilities, and other subgroups included under section 
1111(c)(2) of the ESEA; and community organizations and intermediaries.
    Discussion: We appreciate the support for these provisions and 
agree that meaningful, timely, and ongoing consultation with a diverse 
group of stakeholders at all phases of the innovative assessment 
demonstration authority is essential to ensure effective implementation 
and development of a high-quality innovative assessment system. We 
strongly encourage States to engage in substantial outreach with 
stakeholders in developing and implementing an innovative assessment 
system under the ESSA.\2\
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    \2\ The Department has issued non-regulatory guidance on 
consultation under the ESEA, including suggestions and examples of 
best practices for meaningful stakeholder engagement. See: http://www2.ed.gov/policy/elsec/guid/secletter/160622.html.
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    Changes: None.
    Comments: Several commenters suggested that evidence of 
consultation with stakeholders at the time a State is seeking 
demonstration authority in proposed Sec.  200.77(a) be submitted 
directly from stakeholders, rather than from the State.
    Discussion: We believe the commenters' concern that evidence of 
meaningful consultation under new Sec.  200.105(a) (proposed Sec.  
200.77(a)) is submitted from the State, rather than from required 
groups, is mitigated by the selection criterion under new Sec.  
200.106(b)(3) (proposed Sec.  200.78(b)(3)), which requires a State to 
submit signatures directly from groups and individuals supporting the 
application, many of whom overlap with those who must be consulted 
under new Sec.  200.105(a). As a result, we believe that adding to the 
provisions for consultation by requiring States to gather and submit 
further information from organizations and individuals directly would 
add burden to the application process without providing

[[Page 88944]]

substantially new information that would aid in the external peer 
review of a State's application.
    Changes: None.
    Comments: A few commenters requested that the Department add 
specific groups of stakeholders to the list of those with which the 
State must consult in developing its innovative assessment system and 
application under proposed Sec.  200.77(a)(2). Commenters suggested 
adding groups such as specialized instructional support personnel, 
representatives of community-based organizations, and organizations and 
parents who advocate for the interests of particular subgroups of 
children or are experts in working with these subgroups. In addition, 
one commenter representing tribal organizations suggested that tribal 
leaders be included as a required group for consultation under proposed 
Sec.  200.77(a)(2). Stakeholders supported including these groups under 
proposed Sec.  200.77(a)(2) because States would then be required to 
regularly solicit ongoing feedback from these additional groups under 
proposed Sec.  200.77(d)(3)(iv) and during the transition to statewide 
use of the innovative assessment system under proposed Sec.  
200.79(b)(3).
    Discussion: The list of stakeholders that are part of required 
consultation under new Sec.  200.105(a)(2) (proposed Sec.  
200.77(a)(2)) comes directly from section 1204(e)(2)(A)(v)(I) of the 
ESEA. The Department added students to the list of required 
stakeholders, given the substantial and direct impact of implementing a 
new innovative assessment on the teaching and instruction students will 
receive and to reinforce related statutory requirements for ensuring 
students are acclimated to the innovative assessments, as described in 
section 1204(e)(2)(B)(vi) of the ESEA. While we recognize that the 
additional groups suggested by commenters for inclusion in the 
regulations may also provide valuable input in developing the 
innovative assessment, we believe that the current list, as proposed, 
already includes broad categories to ensure diverse input, such as 
``educators'' and those ``representing the interests of children with 
disabilities, English learners, and other subgroups.''
    We note that a State may always consult with additional groups 
beyond those required in the regulations in developing its innovative 
assessment system, and we strongly encourage States to ensure 
meaningful and ongoing engagement with a diverse group of stakeholders. 
The Department has issued non-regulatory guidance, generally, on 
conducting effective outreach with stakeholders in implementing the 
ESSA, with suggestions and examples of best practices for meaningful 
stakeholder engagement.\3\
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    \3\ For more information regarding stakeholder engagement, 
please see: http://www2.ed.gov/policy/elsec/guid/secletter/160622.html.
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    We agree that it would be helpful to emphasize that parents of 
particular subgroups of students, as well as organizations representing 
these students, must be consulted, and are revising the final 
regulations accordingly. The State must consider the appropriate 
services to ensure meaningful communication for parents with limited 
English proficiency and parents with disabilities.
    In addition, we agree that it would be beneficial to add 
representatives of Indian tribes to the list of required stakeholders, 
as some LEAs have a high percentage of their student population who are 
American Indian or Alaska Native, and these LEAs will be expected to 
implement the innovative assessment by the time the State transitions 
to statewide use of the innovative assessment system. This requirement 
is consistent with the new requirement in title I, part A for States to 
consult with representatives of Tribes prior to submitting a State plan 
(section 1111(a)(1) of the ESEA), and the new requirement that certain 
LEAs consult with Tribes prior to submitting a plan or application for 
covered programs (section 8538 of the ESEA).
    Changes: We have added new Sec.  200.105(a)(2)(iv) to require State 
collaboration with representatives of Indian tribes and Sec.  
200.105(a)(2)(v) to specify that parents who are consulted must include 
parents of children in subgroups described in Sec.  200.105(a)(2)(i) 
(proposed Sec.  200.77(a)(2)(i)).
    Comments: Several commenters suggested that particular groups or 
individuals be added to the list of entities for which a State submits 
signatures under the selection criterion demonstrating stakeholder 
support for innovative assessment demonstration authority in proposed 
Sec.  200.78(b)(3)(iv). Commenters suggested that disability rights 
organizations, community-based organizations, and statewide 
organizations representing superintendents or school board members also 
be added. Some of these commenters felt that signatures from other 
stakeholders listed in proposed Sec.  200.78(b)(3)(iv) should be 
required, believing these organizations' views were considered as less 
important than groups representing local leaders, administrators, and 
teachers. Another commenter recommended that we require teacher 
signatures where local teacher organizations do not exist to ensure 
that States have support from teachers in the development and 
implementation of the innovative assessment system.
    Discussion: In proposed Sec.  200.78(b)(3), the Department 
prioritized requiring signatures from those individuals and 
organizations that are most directly involved in the implementation of 
innovative assessments at the local level, such as superintendents, 
school boards, and teacher organizations, as these are the individuals 
who will be charged (depending on the State's innovative assessment 
system design) with developing, administering, or scoring the 
assessments; thus, their input and support are essential to the 
successful implementation of the innovative assessment system. We agree 
with commenters that signatures of support from other individuals, 
however, can be beneficial and note that while the selection criterion 
in new Sec.  200.106(b)(3)(i)-(ii) (proposed Sec.  200.78(b)(3)(i)-
(ii)) specifically references signatures from superintendents and 
school boards in participating districts, this does not preclude a 
State from requesting and including signatures and letters of support 
from State organizations representing superintendents and school 
boards, as such groups may be included under ``other affected 
stakeholders'' as described in new Sec.  200.106(b)(3)(iv) (proposed 
Sec.  200.77(b)(3)(iv)). Signatures from disability and community-based 
organizations may also be included under new Sec.  200.106(b)(3)(iv). 
Moreover, because these signatures are part of the selection criteria, 
if a State were to include signatures from a wide range of 
individuals--including those that are not required, but may be 
included, as described in new Sec.  200.106(b)(3)(iv)--it would 
strengthen this component of the State's application. In this way, we 
believe the requirements, as proposed, provide a strong incentive for a 
State to seek input and support from a diverse group of stakeholders, 
and organizations representing those stakeholders in developing its 
application, without adding burden to the process for States by 
including additional required signatures from groups who may not be 
directly involved in implementation of the innovative assessment 
system. Similarly, while signatures from individual teachers in 
participating districts could be a powerful demonstration of support 
from

[[Page 88945]]

educators in participating districts, we believe such a requirement 
would add a significant burden for LEAs and SEAs. A State may choose to 
collect teacher signatures, but we also recognize it may be more 
efficient and feasible for SEAs and LEAs to collect signatures from 
organizations that represent teachers.
    Changes: None.
    Comments: One commenter recommended that the final regulations 
require ongoing collaboration with stakeholders, including parents and 
organizations that advocate on behalf of students, in addition to 
consultation on the development of the innovative assessment system at 
the time of the State's application as described in proposed Sec.  
200.77(a).
    Discussion: New Sec.  200.105(d)(3)(iv) (proposed Sec.  
200.77(d)(3)(iv)) requires each State to submit an assurance in its 
application that it will annually report to the Secretary on 
implementation of its innovative assessment system, including ongoing 
feedback from teachers, principals, other school leaders, students and 
parents, and other stakeholders consulted under new Sec.  200.105(a)(2) 
(proposed Sec.  200.77(a)(2)) from participating schools and LEAs. As 
States must collect and report on this stakeholder feedback each year, 
and the Department will use it to inform ongoing technical assistance 
and monitoring of participating States, we believe no further 
requirements related to ongoing consultation are necessary.
    Changes: None.
    Comments: One commenter supported the provisions for States to 
include the prior experience of external partners as part of the 
selection criterion in proposed Sec.  200.78(b), but suggested that we 
revise the final regulations in proposed Sec.  200.78(d) to include 
community-based organizations so as to emphasize the need for States to 
partner with external organizations to provide training to staff and to 
familiarize parents and students with the innovative assessment.
    Discussion: SEAs and consortia of SEAs must submit evidence under 
new Sec.  200.105(a)(1) (proposed Sec.  200.77(a)(1)) of collaboration 
in developing the innovative assessment system, including experts in 
the planning, development, implementation, and evaluation of innovative 
assessment systems, many of whom could be part of external partnerships 
the SEA or consortium has established. We are revising the regulations 
in new Sec.  200.105(a)(1) to more clearly describe that external 
partners may be included as collaborators. The commenter is correct 
that the selection criterion in new Sec.  200.106(b) (proposed Sec.  
200.78(b)) provides for States to describe the prior experience of 
their external partners, if any. Further, we presume the role of 
external partners in executing a State's plan for demonstration 
authority will be fully described, if applicable, in each relevant 
selection criterion, and do not feel it is necessary to explicitly note 
that a State may work with external partners in each and every area, as 
we believe States are best positioned to determine the areas in which 
their work could benefit from external partnerships, based on their 
innovative assessment system design. A high-quality plan for supporting 
educators and students, for example, would include sufficient detail on 
any external partnerships and resources to accomplish this work, if the 
State has determined such partnerships are necessary.
    Changes: We have added new Sec.  200.105(a)(1) (proposed Sec.  
200.77(a)(1)) to clarify that experts in the planning, development, 
implementation, and evaluation of innovative assessment systems with 
whom SEAs collaborate to develop the innovative assessment system may 
include external partners.
    Comments: One commenter encouraged the Department and States to 
engage local school boards in the process to identify participating 
districts and schools for the innovative assessment pilot.
    Discussion: SEAs and consortia of SEAs must consult with school 
leaders during the application process under new Sec.  
200.105(a)(2)(ii) (proposed Sec.  200.77(a)(2)(ii)). The selection 
criterion provides for SEAs to submit signatures from LEA 
superintendents and local school boards participating in the 
demonstration authority, consistent with new Sec.  200.106(b)(3)(i)-
(ii) (proposed Sec.  200.78(b)(3)(i)-(ii)), as a showing of support for 
the innovative assessment demonstration authority. We believe that 
these requirements and selection criterion provide opportunities for 
SEAs to speak with local school leaders, including local school boards, 
about their plans for and support of innovative assessments. These 
conversations will also be the time for SEAs to discuss district or 
school participation with local leaders, including school boards. Given 
these provisions, we do not think further changes to the regulations 
are necessary.
    Changes: None.

200.104 Innovative Assessment Demonstration Authority

General
    Comments: Many of the commenters supported the innovative 
assessment demonstration authority as an opportunity to move toward 
more innovative and meaningful systems for assessing student learning, 
beyond traditional multiple choice exams. In particular, some 
commenters supported the inclusion of performance- and competency-based 
assessments. One commenter advocated for a regulation that encourages 
new ways to assess under an existing system (e.g., embedding 
technology-enhanced items), different strategies to do what current 
assessments intend to do but fail to do (e.g., assessing higher-order 
thinking skills), or new ways to assess student competencies beyond 
what current assessments can do (e.g., assessing in individualized or 
real world settings).
    One commenter appreciated the opportunity to use the advances in 
assessment to better measure student learning, but asked the Department 
to ensure that this focus on innovation does not jeopardize assessment 
rigor and comparability. Multiple commenters felt that the regulations 
provided appropriate flexibility with protections to ensure that 
assessments are high-quality, valid, and reliable measurements 
consistent with the provisions of ESEA.
    Discussion: We appreciate commenters' support of the innovative 
assessment demonstration authority and believe that this authority can 
enhance State efforts to measure student mastery of challenging State 
academic standards and will lead to improved academic outcomes for all 
students. We also agree that it is essential, even as States are 
piloting more innovative assessments, that all students, including 
students with the most significant cognitive disabilities, be held to 
challenging content standards, and that all assessments be of high 
quality, producing valid, reliable, and comparable determinations of 
student achievement, except for alternate assessments for students with 
the most significant cognitive disabilities, as defined by a State 
under Sec.  200.6(d)(1) and section 1111(b)(2)(D) of the ESEA, who may 
be assessed with alternate assessments aligned with alternate academic 
achievement standards consistent with section 1111(b)(1)(E) of the 
ESEA.
    In developing these regulations, we worked carefully to balance the 
flexibility offered to States under this authority and the need to 
provide room for innovation with the responsibility to ensure that 
States continue to meet the requirements of title I of the ESEA. As 
long as States meet the requirements of title I of the ESEA, they may 
explore new ways to assess students beyond

[[Page 88946]]

what is possible with the current assessments.
    Changes: None.
    Comments: Several commenters expressed general disagreement with 
providing States innovative assessment demonstration authority, 
claiming that the authority would not support students or their 
learning. Other commenters expressed concern that the regulations, as 
proposed, require too many assurances and documentation, create too 
many prescriptive requirements, and impede States' ability to create 
truly innovative assessment systems.
    Discussion: The innovative assessment demonstration authority 
provides flexibility to States to develop and administer a new system 
of assessments that may include different types of assessments, such as 
instructionally embedded assessments or performance-based tasks, that 
provide useful and timely information for educators to guide 
instruction and identify appropriate instructional supports. Under the 
demonstration authority, States may develop new innovative assessments 
that meet the needs of their teachers and that provide better measures 
for learning. However, section 1204(e)(2)(A)(vi) of the ESEA requires 
that assessments be developed so that they are accessible to all 
students, including English learners and students with disabilities; 
are fair, valid, and reliable; and hold all students to the same high 
standards.
    We disagree that the requirements are unnecessarily burdensome or 
too prescriptive. Under section 1204 of the ESEA, the demonstration 
authority is for those States interested in piloting new innovative 
assessments and administering the innovative assessments in a subset of 
schools for the purposes of accountability and reporting instead of the 
statewide assessment, until a State fully scales use of the innovative 
assessment among all LEAs and schools. If a State wants to create an 
innovative assessment outside of the demonstration authority while 
continuing to use the statewide assessment in all schools and LEAs, the 
State may do so. Section 1204 of the ESEA further establishes the 
application requirements for States seeking innovative assessment 
demonstration authority. The regulations clarify and organize those 
statutory requirements in new Sec. Sec.  200.105 and 200.106 (proposed 
Sec. Sec.  200.77 and 200.78). Given that the demonstration authority 
is initially limited to seven States, we particularly believe the 
selection criteria outlined in new Sec.  200.106 will provide the 
chance for peer reviewers to distinguish high-quality applications 
consistent with the requirements of the statute. Moreover, section 
1601(a) of the ESEA provides that the Secretary ``may issue . . . such 
regulations as are necessary to reasonably ensure that there is 
compliance'' with the law. The Department also has rulemaking authority 
under section 410 of the General Education Provisions Act (GEPA), 20 
U.S.C. 1221e-3, and section 414 of the Department of Education 
Organization Act (DEOA), 20 U.S.C. 3474. These regulations are 
necessary and appropriate to assist States in developing new, 
innovative assessments while maintaining high expectations, validity, 
and rigor; further, they are consistent and specifically intended to 
ensure compliance with section 1204 of the ESEA.
    Changes: None.
    Comments: One commenter suggested the Department ask States to 
indicate their interest in the innovative assessment demonstration 
authority when they submit their consolidated State plan. The commenter 
noted that under this recommendation a State would share its vision for 
an innovative assessment without submitting a binding application, 
allowing the Department to provide targeted technical assistance to 
interested States.
    Discussion: Title I, part B is not one of the programs included in 
the definition of ``covered program'' in section 8101(11) of the ESEA 
as it applies to the consolidated State plan. Accordingly, we do not 
believe it is necessary to include a requirement for States to indicate 
their interest in the demonstration authority in the consolidated State 
plan.
    Changes: None.
    Comments: None.
    Discussion: In reviewing the proposed regulations, the Department 
believes it would be helpful to establish definitions of 
``participating LEA'' and ``participating school.'' At some points 
during implementation, States may have both participating and non-
participating LEAs and schools, and this change provides clarity about 
what it means for an LEA or school to be participating in the 
demonstration authority.
    Changes: We have added Sec.  200.104(b)(4) to define a 
``participating LEA'' as an LEA in the State with at least one school 
participating in the innovative demonstration authority. We also have 
added Sec.  200.104(b)(5) to define ``participating school'' as a 
public school in the State where the innovative assessment system is 
administered under the innovative assessment demonstration authority 
instead of the statewide assessment under section 1111(b)(2) of the 
ESEA and where the results of the school's students on the innovative 
assessment system are used by its State and LEA for purposes of 
accountability and reporting under section 1111(c) and 1111(h) of the 
ESEA. We have made conforming edits in new Sec. Sec.  200.105 and 
200.106.
Defining Innovative Assessment
    Comments: Many commenters requested clarity concerning which parts 
of the innovative assessment system need to meet the requirements of 
section 1111(b)(2) of the ESEA. Specifically, commenters asked the 
Department to be clear that it is the innovative assessment system that 
must meet the requirements, not each individual innovative assessment. 
The commenters noted that a grade-level innovative assessment may be 
comprised of multiple parts, each of which may be a stand-alone 
assessment (e.g., an interim assessment, a performance-based 
assessment, or a competency-based assessment), which sum to an annual, 
summative grade-level determination of how a student performed against 
the challenging State academic standards. Commenters suggested that 
individual assessments should not be required to meet the requirements 
of peer review or section 1111(b)(2) individually.
    Discussion: The Department believes there may have been some 
confusion about the meaning of innovative assessments in the context of 
an innovative assessment ``system.'' The Department considers an 
assessment system to be inclusive of all required assessments under the 
ESEA, such as the general assessments in all grade levels in reading/
language arts, mathematics, and science, and the AA-AAAS. A grade-level 
innovative assessment, on the other hand, refers to the full suite of 
items, performance tasks, or other parts that sum to the annual, 
summative determination.
    The Department, through its peer review process, will review the 
innovative assessment system overall, including a review of 
documentation and evidence provided for the innovative assessment at 
each grade level that comprises the innovative assessment system. The 
provision in new Sec.  200.107(b) (proposed Sec.  200.79(b)), which 
requires an innovative assessment to meet all of the requirements of 
section 1111(b)(2) of the ESEA, does not mean that each part of a 
grade-level innovative assessment (e.g., an interim assessment, a 
performance-based assessment, a competency-based assessment) must meet 
those requirements. Accordingly,

[[Page 88947]]

the Department will not review each part of the grade-level innovative 
assessment (e.g., a single performance task that makes up part of the 
State's innovative 4th-grade mathematics test) to ensure that it meets 
the requirements in Sec.  200.2(b) and, therefore, the peer review will 
not result in a determination that a single grade-level assessment does 
or does not meet the requirements of peer review. We do note, however, 
that, as a component of the peer review, a State must submit grade-
specific documentation, such as alignment evidence, test blueprints, or 
documentation outlining the development of performance tasks or other 
components, and documentation about the validity of the inferences 
about the student.
    To provide further clarity, we are revising the definition of 
``innovative assessment system'' in new Sec.  200.104(b)(3) (proposed 
Sec.  200.76(b)(2)) to specify that an ``innovative assessment system'' 
produces an annual summative determination of each student's mastery of 
grade-level content standards aligned to the challenging State academic 
standards under section 1111(b)(1) of the ESEA, or, in the case of a 
student with the most significant cognitive disabilities assessed with 
an AA-AAAS under section 1111(b)(1)(E) of the ESEA and aligned with the 
State's academic content standards for the grade in which the student 
is enrolled, an annual summative determination relative to such 
alternate academic achievement standards for each such student. We also 
are revising the definition of ``innovative assessment system'' to 
specify that an innovative assessment may include, in any required 
grade or subject, one or more types of assessments, such as cumulative 
year-end assessments, competency-based assessments, instructionally 
embedded assessments, interim assessments, or performance-based 
assessments.
    Changes: We have added a revised definition of ``innovative 
assessment system'' in new Sec.  200.104(b)(3) (proposed Sec.  
200.76(b)(2)) to clarify the definition of ``innovative assessment 
system'' to indicate that an innovative assessment system:
     Produces an annual summative determination of each 
student's mastery of grade-level content standards aligned to the 
challenging State academic standards under section 1111(b)(1) of the 
ESEA, or, in the case of a student with the most significant cognitive 
disabilities assessed with an alternate assessment aligned with 
alternate academic achievement standards under section 1111(b)(1)(E) of 
the ESEA and aligned with the State's academic content standards for 
the grade in which the student is enrolled, an annual summative 
determination relative to such alternate academic achievement standards 
for each such student;
     May include any combination of general assessments or 
alternate assessments aligned to alternate academic achievement 
standards (AA-AAAS) in reading/language arts, mathematics, or science; 
and
     May, in any required grade or subject, include one or more 
types of assessments listed in new Sec.  200.104(b)(3)(ii).
    Comments: Two commenters asked the Department to be more explicit 
in the regulations that the innovative assessment could be an 
innovative general assessment, an innovative AA-AAAS, or both.
    Discussion: As we stated in the preamble of the NPRM, an SEA or 
consortium of SEAs may propose an innovative general assessment in 
reading/language arts, mathematics, or science; an innovative AA-AAAS 
for students with the most significant cognitive disabilities, as 
defined by a State under section 1111(b)(2)(D) of the ESEA and Sec.  
200.6; or both. The definition of ``innovative assessment system'' in 
new Sec.  200.104(b)(3) (proposed Sec.  200.76(b)(2)) also specifies 
that a State's innovative assessment system may include assessments 
that produce an annual summative determination aligned with alternate 
academic achievement standards for students with the most significant 
cognitive disabilities. In such cases, a State's application would 
demonstrate that an innovative AA-AAAS has or will meet all 
requirements, including for technical quality, validity, and 
reliability, that are included under section 1111(b)(2)(B) of the ESEA. 
We are further revising new Sec.  200.104(b)(3) to clarify that the 
innovative assessment system may include any combination of general 
assessments or AA-AAAS in any required grade or subject.
    Changes: We have added new Sec.  200.104(b)(3) (proposed Sec.  
200.76(b)(2)) to specify that the innovative assessment system may 
include any combination of general assessments or AA-AAAS in reading/
language arts, mathematics, or science that are administered in at 
least one required grade under section 1111(b)(2)(B)(v) of the ESEA.
Defining Types of Innovative Assessments
    Comments: Multiple commenters asserted that the terms used in 
proposed Sec.  200.76(b)(2) to define an innovative assessment, such as 
competency-based assessments, instructionally embedded assessments, and 
performance-based assessments, are too open to interpretation and may, 
in fact, limit assessment options. Commenters recommended that proposed 
Sec.  200.76(b)(2) provide more specific examples, such as essays, 
research papers, science experiments, and high-level mathematical 
problems.
    Discussion: The definition of ``innovative assessment system'' in 
new Sec.  200.104(b)(3) (proposed Sec.  200.76(b)(2)) is consistent 
with the definition in section 1204(a)(1) of the ESEA. We note that 
essays, research papers, science experiments, and high-level 
mathematical problems may be examples of performance-based assessments, 
competency-based assessments, or instructionally embedded assessments. 
However, we do not believe it is necessary to provide that level of 
specificity in the regulations. We think that this kind of detailed 
clarification can be more effectively provided in non-regulatory 
guidance.
    Changes: None.
Demonstration Authority Period
    Comments: Multiple commenters agreed with the proposed regulation 
as written and believe that a requirement for immediate implementation 
of the innovative assessment system will ensure that States receiving 
authority commit time and resources to develop a successful innovative 
assessment system.
    Discussion: We appreciate the support of commenters for innovative 
assessments and for the timeline for implementation. States only need 
demonstration authority when they are ready to use the innovative 
assessment, including for accountability and reporting purposes, in at 
least one school and at least one required grade or subject instead of 
the statewide assessment; prior to that, States have discretion to 
consider and test different innovative models to subsequently propose 
under this authority.
    Changes: None.
    Comments: Numerous commenters expressed concern about the 
requirement that States be ready, upon receiving demonstration 
authority, to immediately implement a new innovative assessment in at 
least one school. Commenters believe States may be unwilling or unable 
to commit time and resources to the development of an innovative 
assessment system without an assurance that the Department would 
consider their approach to an innovative assessment system. These 
commenters

[[Page 88948]]

suggested the Department consider a two-stage application process in 
which applicants may receive conditional approval that would allow time 
for planning prior to administration of the innovative assessment 
system in at least one school. One commenter noted that this would be 
an opportunity for States to work directly with the Department and 
receive feedback and technical assistance.
    One commenter stated that, were the Department to consider a 
conditional approval process, it might risk exceeding the seven-State 
limitation during the initial demonstration authority period if the 
Department receives more than seven high-quality applications that meet 
all of the application requirements and selection criteria. The 
commenter proposes a contingency plan to rank the applications in the 
event that the number of applications exceeds the cap.
    Several commenters suggested that this requirement means the 
Department drafted the proposed rule to accommodate specific States or 
may favor the participation of specific States. One of these commenters 
recommended the Department commit to granting demonstration authority 
so that States may pursue assessment innovation without the burden of 
sanctions or the threat of losing funds.
    Discussion: We recognize that many States need time to develop and 
implement an innovative assessment system. However, a State does not 
need demonstration authority to plan for, develop, or pilot an 
innovative assessment system. The authority is only needed once the 
State is ready to administer an innovative assessment in at least one 
school and will administer the innovative assessment in place of the 
statewide assessment, including for purposes of accountability and 
reporting under title I, part A.
    If the Department grants demonstration authority, even on a 
conditional basis, to seven States in the first year, there would be no 
additional opportunities for other States to pursue authority until the 
initial demonstration period ends. The Department is concerned that 
providing conditional approval to States that are not ready to 
implement an innovative assessment system in at least one school may, 
as a result, take an opportunity away from a State that is close to 
being ready but waits to submit an application to the Department, even 
though that second State may ultimately be ready to begin implementing 
its innovative assessment system sooner than the first State. In 
addition, because we know there is a tremendous amount of work involved 
in developing an innovative assessment system, we think that it is 
possible that a State with conditional approval may subsequently 
encounter unanticipated delays, challenges, or the need for substantial 
redesign. If this were to happen, it could negatively affect the 
Department's ability to evaluate the initial demonstration authority 
before determining to expand the innovative demonstration authority, as 
required by section 1204(c)(3) of the ESEA.
    We encourage States to consider several options for how they may 
develop, implement, and scale an innovative assessment. If a State 
plans to pursue demonstration authority immediately, a State might 
choose to partner with an LEA or a school that already has an 
innovative assessment model in place at the local level. The State 
could choose to partner with that LEA or school using an innovative 
assessment model to begin piloting this model and using it for 
accountability and reporting purposes under the ESEA in that LEA or 
school, with the intention of moving statewide, once the State is 
granted innovative assessment demonstration authority. Alternatively, a 
State may choose to start small with a focus on a single grade and 
content area, like 8th-grade science. If the Department does not 
receive and grant demonstration authority to seven States in the first 
year, we anticipate that there will be additional opportunities for 
States to apply for demonstration authority until seven States have 
been approved.
    Finally, the regulations are not designed to favor the 
participation of certain States. We will hold all applicants to the 
same high expectations, outlined in new Sec. Sec.  200.105 and 200.106 
(proposed Sec. Sec.  200.77 and 200.78), based on external peer review 
of applications, before granting innovative assessment demonstration 
authority.
    Changes: None.
    Comments: Several commenters objected to proposed Sec.  
200.76(b)(1), which would require States to use the innovative 
assessment system for purposes of accountability during the 
demonstration authority period. These commenters cited section 1204(h) 
of the ESEA which provides that States may use the innovative 
assessment system for accountability during the demonstration 
authority. The commenters believe that requiring immediate use for 
accountability will limit innovation and may discourage States from 
applying until they are ready.
    Discussion: Schools and LEAs in a State that are participating in 
an innovative assessment must continue to be included in the State's 
accountability system to ensure transparency to educators, parents, and 
the public about school performance. Section 1204(e)(2)(C)(iii) 
requires an SEA's plan for innovative assessment demonstration 
authority to include a description of how the SEA will hold all 
participating schools accountable for meeting the State's expectations 
for student achievement. The manner in which an SEA holds schools 
accountable for meeting the State's expectations for student 
achievement is through the statewide accountability system under 
section 1111(c) of the ESEA. A State may elect, pursuant to section 
1204(e)(2)(B)(i) of the ESEA, to use the statewide academic assessments 
required under section 1111(b)(2) of the ESEA in the participating 
schools and participating LEAs for accountability purposes while 
piloting the innovative assessment system. In the alternative, the 
State may use its innovative assessments, instead of the statewide 
academic assessments, in reading/language arts, mathematics, or science 
for accountability purposes under the demonstration authority if the 
innovative assessment meets all of the statutory requirements.
    If a State does not wish to use an innovative assessment for 
accountability and reporting purposes, it does not need demonstration 
authority to pilot its innovative assessments. Only those States that 
wish to use the innovative assessment in place of the statewide 
assessment, including for the purposes of accountability and reporting 
under title I, part A, in at least one school, require innovative 
assessment demonstration authority.
    Changes: None.
    Comments: Several commenters strongly supported the option in 
proposed Sec.  200.77(b)(1) for SEAs to use the statewide academic 
assessments for accountability should they choose not to use the 
innovative assessments for such purposes.
    Discussion: We appreciate the commenters' support.
    Changes: None.
Community of Practice
    Comments: Multiple commenters expressed support for a process that 
encourages States to undergo careful planning, gather technical 
expertise, and engage stakeholders before piloting an innovative 
assessment. One commenter supported the idea of having a community of 
practice to provide feedback and support to States in their planning 
for an innovative assessment system. However, the commenter noted

[[Page 88949]]

that the lack of funding for the community of practice does not 
indicate a high level of support for States in the development of an 
innovative assessment system.
    Discussion: We appreciate the support of commenters for planning 
time and a community of practice that provides technical assistance in 
the planning and development of an innovative assessment system. We 
agree that a community of practice would provide an opportunity for 
States that are not yet ready to apply for demonstration authority an 
opportunity to work together and with the Department and experts in 
assessment and accountability, to share information on challenges 
faced, lessons learned, and promising and best practices to support 
continuous learning in ways to strengthen student assessments. The 
Department will strive to work collaboratively with States and other 
interested parties to provide technical assistance and support to all 
interested States.
    Changes: None.
Peer Review of Applications
    Comments: Commenters recommended that teachers be included in the 
list of peer reviewers on the basis that teachers have experience 
developing and implementing innovative item types and may be 
implementing the innovative assessment systems that will be under 
consideration in peer review. In addition, commenters suggested that 
principals and parents also be considered as peer reviewers.
    Discussion: We agree with commenters that educators, including 
teachers and principals, should be considered as external peer 
reviewers. The experience of principals and teachers, especially of 
those already implementing innovative assessments in their schools and 
classrooms, is valuable in the peer review process to evaluate the 
strength of the application and its supporting evidence. In new Sec.  
200.104(c)(2) (proposed Sec.  200.76(c)(2)), the Department specifies 
that peer review teams will consist of individuals with expertise in 
developing and implementing innovative assessments, such as 
psychometricians, researchers, State and local assessment directors, 
and educators--which includes teachers and principals. Therefore, this 
is already addressed in the regulations.
    We do not agree that parents in general should be added to the list 
of peer reviewers in new Sec.  200.104(c)(2). The very technical nature 
of these reviews requires that peer reviewers have the experience and 
expertise to evaluate an SEA's application, with an emphasis on 
knowledge of and experience with the development and implementation of 
innovative assessments and assessment technical requirements such as 
test design, comparability, and accessibility. Certainly, if a parent 
meets these requirements, including the level of expertise expected in 
the development and implementation of innovative assessments, that 
person would be considered to serve as a peer reviewer for the 
innovative assessment demonstration authority.
    Changes: None.
    Comments: One commenter recommended that tribal representatives be 
included in the list of peer reviewers of State applications for 
demonstration authority.
    Discussion: As stated above, peer reviewers will be selected based 
on the individual's experience and expertise, with an emphasis on 
knowledge of and experience with the development and implementation of 
innovative assessments. Peer reviewers may also be individuals with 
past experience developing innovative assessment systems that support 
all students, including English learners, children with disabilities, 
and disadvantaged students (ESEA section 1204(f)(2)). Prior to 
selecting peer reviewers, the Department will publish a notice seeking 
peer reviewers and will reach out to a wide variety of stakeholders 
with such experience. We encourage tribal representatives with the 
experience and expertise in the development and implementation of 
innovative assessments to apply to be a peer reviewer.
    Changes: None.
Granting Demonstration Authority
    Comments: Commenters expressed concern that proposed Sec.  
200.76(d), which stated that the Secretary may award demonstration 
authority to ``at least one'' State, suggests that the Secretary might 
reject eligible applicants or limit the pilot to fewer States than the 
seven-State limit set forth in the statute during the initial 
demonstration period. Commenters asked that Sec.  200.76(d), and other 
sections of the regulations, as appropriate, be changed to clarify that 
any State that meets the eligibility criteria will receive 
demonstration authority, not to exceed the seven-State limit.
    Discussion: We intended new Sec.  200.104(d) (proposed Sec.  
200.76(d)) to provide that the initial demonstration period is the 
three years beginning with the first year in which the Secretary awards 
at least one State or consortium demonstration authority under section 
1204 of the ESEA. This is important to clarify because, during the 
initial demonstration authority period, the Secretary may not grant 
demonstration authority to more than seven States, including States 
participating in a consortium. We do not believe additional 
clarification is needed in the regulation as the Department references 
``at least one State'' to indicate when the initial demonstration 
authority period begins (i.e., it is when at least one State is granted 
the authority and begins implementing in at least one school; not when 
a full cadre of seven States have been granted the authority).
    Each State that applies for the demonstration authority will 
undergo peer review, as identified in the statute and regulations. The 
peers will review the strength of the State's application and evidence 
against the application requirements and selection criteria before 
providing recommendations to the Secretary.
    Changes: None.
Developing Innovative Assessments
    Comments: One commenter recommended that the Department include a 
requirement that SEAs or consortia of SEAs use competitive bidding to 
identify and select developers for innovative assessments under the 
innovative assessment demonstration authority. The commenter asserted 
that such a requirement would ensure that SEAs or consortia of SEAs 
consider the expertise of a wide range of entities experienced in the 
design and development of assessments, including the types of 
assessments likely to be included as part of an innovative assessment 
system. Finally, the commenter noted that this requirement would not be 
burdensome as many State procurement laws specifically require this 
type of process.
    Discussion: We believe it is important that each SEA or consortia 
of SEAs consider the expertise and experience of both LEAs within the 
State and any external entities that will be supporting the development 
and implementation of innovative assessments. As noted by the 
commenter, many State procurement laws already govern the process that 
States must use to identify and select external partners. We do not 
believe it is necessary or within the scope of these regulations for 
the Department to require specific procurement processes. Therefore, 
the Department declines to include additional requirements.
    Changes: None.

[[Page 88950]]

Consortia

    Comments: One commenter recommended that tribes be allowed to apply 
for innovative assessment demonstration authority, and that tribes be 
allowed to participate in a consortium of SEAs without counting against 
the four-State limitation on consortium membership. The commenter also 
requested that tribes be considered and included in State innovative 
assessment pilots.
    Discussion: Under section 1204 of the ESEA, the Secretary may 
provide an SEA, or a consortium of SEAs, innovative assessment 
demonstration authority. An SEA is defined as ``the agency primarily 
responsible for the State supervision of public elementary schools and 
secondary schools'' (section 8101(49) of the ESEA), and ``State'' is 
defined for purposes of title I, part B as the 50 States, the District 
of Columbia, and the Commonwealth of Puerto Rico (section 1203(c) of 
the ESEA). The law does not provide for separate eligibility for tribes 
so we are unable to make that change in these regulations. We note that 
these regulations only govern States and their school districts, and 
not schools funded by the Bureau of Indian Education (BIE) or by 
tribes. We also note, however, that title I, part B does provide a 
specific set-aside of funds for the BIE for assessments (section 
1203(a)(1) of the ESEA), and nothing in the law prohibits those funds 
from being distributed to tribes for the development of assessments.
    For the many State-funded public school districts serving 
substantial populations of American Indian/Alaska Native students, and 
for individual State-funded public schools operated by a tribe (as in 
the case of some charter schools), such public schools in a State 
granted the demonstration authority would be eligible to participate in 
the innovative assessment system. We agree that, in such States, 
collaboration with tribal communities is essential. Therefore, we 
strongly encourage interested States to work closely with any tribes 
located in their State when developing and administering innovative 
assessments. To prioritize this collaboration, and as previously 
described, we are requiring, in new Sec.  200.105(a)(2) (proposed Sec.  
200.77(a)(2)), State collaboration with representatives of Indian 
tribes located in the State in the development of the innovative 
assessment.
    Changes: None.
    Comments: One commenter appreciated the allowance in proposed Sec.  
200.76(d)(2), which provides that an SEA that is affiliated with a 
consortium but not planning on using its innovative assessment under 
the demonstration authority would not count toward the four-State limit 
on consortium size. The commenter believed that this would create an 
opportunity for some States to receive technical assistance and 
additional time for planning prior to implementation of an innovative 
assessment system. The commenter suggested the final regulations 
include information about how affiliate members transition to become 
full, participating members in a consortium, including requiring these 
members to receive approval through the Department's peer review 
process before implementing innovative assessment systems for 
accountability purposes.
    Discussion: An SEA may be affiliated with a consortium in order to 
participate in the planning and development of the innovative 
assessment, but is not considered a full member of the consortium 
unless the SEA is using the innovative assessment system in at least 
one LEA for the purposes of accountability and reporting under title I, 
part A of the ESEA instead of the statewide assessment. Affiliate 
members do not need to be included in the application for demonstration 
authority, nor do they count toward the four-State limitation on 
consortium size. The Department believes that it is the responsibility 
of the consortium of States and the affiliate State to determine when 
the affiliate State is ready to transition to full membership in the 
consortium and begin using the innovative assessment system, consistent 
with the innovative assessment demonstration authority requirements. At 
that point, the consortium, in partnership with the State seeking to 
transition from affiliated to full-member status, must apply for and 
receive authority from the Secretary to use the innovative assessment 
system for accountability and reporting purposes in place of the 
statewide assessment system in participating LEAs.
    The Department believes it would be helpful to establish a 
definition of ``affiliate member of a consortium.'' A consortium of 
States may have both full members and affiliate members, and we believe 
it is necessary to clarify that a State is not a full member of a 
consortium unless it is proposing to use the consortium's innovative 
assessment system. In addition, we agree with commenters that it is 
necessary to provide detail on how an affiliate member of a consortium 
becomes a full member with authority to administer the consortium's 
innovative assessment system under demonstration authority.
    Changes: We have added Sec.  200.104(b)(1) to include a definition 
of ``affiliate member of a consortium'' to be an SEA that is formally 
associated with a consortium of SEAs that is implementing the 
innovative assessment demonstration authority, but is not yet a full 
member of the consortium because it is not proposing to use the 
consortium's innovative assessment system under the demonstration 
authority. We have made corresponding edits to new Sec.  
200.105(f)(1)(i) (proposed Sec.  200.77(f)(1)(i)). We also have added 
Sec.  200.105(f)(2) to clarify that the consortium must submit a 
revised application to the Secretary in order for an affiliate member 
to become a full member of the consortium and use the consortium's 
innovative assessment system under the demonstration authority.

200.105 Demonstration Authority Application Requirements

General
    Comments: One commenter suggested that the innovative assessment 
system incorporate expanded learning time or other strategies that 
emphasize out-of-school time as part of a coordinated effort to provide 
students the opportunity to demonstrate mastery anytime, anywhere, 
including new requirements for SEAs and consortium of SEAs throughout 
proposed Sec. Sec.  200.77(b) and 200.78(a) to incorporate after school 
and expanded learning time programs.
    Discussion: This regulation is intended to support States as they 
apply for and implement innovative assessment demonstration authority 
under section 1204 of the ESEA, which includes the development and 
expansion of an innovative assessment system that can, at the 
conclusion of the demonstration authority period, meet requirements for 
statewide assessment and accountability systems under title I, part A. 
As there are no requirements regarding instructional programming or 
learning opportunities for students outside of the school day related 
to assessments and accountability systems under title I, part A, nor in 
section 1204 of the ESEA, we believe that decisions related to how 
extended learning time may support implementation of the innovative 
assessment system are best left to SEAs and LEAs.
    Changes: None.
    Comments: None.
    Discussion: The Department believes it would be helpful for States 
interested in innovative assessment demonstration authority to 
reiterate in the regulations

[[Page 88951]]

the statutory requirement in section 1204(e) of the ESEA that an SEA or 
consortium's application for demonstration authority must be submitted 
to the Secretary ``at such time'' and ``in such manner'' as the 
Secretary reasonably requires. Given that the innovative assessment 
demonstration authority is a new flexibility permitted under the ESEA, 
and that commenters, as previously described, and stakeholders have 
asked questions and requested greater specificity on the application 
process, we believe this revision would better align the final 
regulations to the statute and provide further clarity for States, 
LEAs, and interested stakeholders.
    Changes: We have added to the introductory paragraph of new Sec.  
200.105 (proposed Sec.  200.77) to clarify that applications for 
innovative assessment demonstration authority must be submitted to the 
Secretary at such time and in such manner as the Secretary may 
reasonably require.
    Comments: None.
    Discussion: In reviewing the proposed regulations, the Department 
believes it will improve consistency with the application requirements 
in new Sec.  200.105(b) (proposed Sec.  200.77(b)), which requires that 
each application demonstrate how the innovative assessment system does 
or will meet certain requirements for alignment, validity, reliability, 
and quality, to add to new Sec.  200.104(c)(2) (proposed Sec.  
200.76(c)(2)) to state that the external peer review process will 
evaluate how the SEA's application ``meets or will meet'' each of these 
requirements in new Sec.  200.105.
    Changes: We have added Sec.  200.104(c)(2) (proposed Sec.  
200.76(c)(2)) to specify that the peer review of SEA applications will 
be used to determine if an application ``meets or will meet'' each of 
the requirements in Sec.  200.105.
    Comments: None.
    Discussion: We further believe it is necessary to clarify certain 
application requirements pertaining to the assurances a State must 
include relating to annual reporting of information on the 
demonstration authority. First, we believe it would be helpful to 
clarify in new Sec.  200.105(d)(3) (proposed Sec.  200.77(d)(3)) that 
States must provide this information in a time and manner as reasonably 
required by the Secretary--which is consistent with the requirement in 
new Sec.  200.104(c) for the submission of applications. Second, 
because new schools within participating LEAs and new LEAs may join the 
demonstration authority annually, we believe it would be helpful to 
clarify in new Sec.  200.105(e)(2) (proposed Sec.  200.77(e)(2)) that 
LEAs must annually assure they will follow all requirements in Sec.  
200.105 and add to new Sec.  200.105(d)(3)(i)(B) (proposed Sec.  
200.77(d)(3)(i)(B)) that the State must include these updated 
assurances in its annual reporting to the Secretary. Finally, in order 
to ensure consistent reporting between participating and non-
participating schools, we believe States should annually report data on 
student achievement on the innovative assessment system to the 
Secretary in a way that is consistent with requirements for State and 
LEA report cards required under section 1111(h) of the ESEA, which 
includes reporting on student achievement and progress toward meeting 
long-term goals. We are revising Sec.  200.105(d)(3)(ii) accordingly.
    Changes: We have added to new Sec.  200.105(d)(3) (proposed Sec.  
200.77(d)(3)) to specify that annual reporting is required at such time 
and in such manner as the Secretary may reasonably require. We have 
further added to new Sec. Sec.  200.105(d)(3)(i)(B) and 200.105(e)(2) 
(proposed Sec.  200.77(e)(2)) to require States to include updated 
assurances from each participating LEA annually that the participating 
LEA will meet all requirements in new Sec.  200.105. Finally, we have 
added to new Sec.  200.105(d)(3)(ii) to specify that reporting on the 
performance of all students in participating schools must be consistent 
with reporting student achievement and participation data on State and 
LEA report cards under section 1111(h) of the ESEA.
Innovative Assessment Design and Alignment
    Comments: One commenter expressed support for proposed Sec.  
200.77(b)(1), which would allow States flexibility in selecting 
specific grades or subject areas to administer innovative assessments, 
rather than assessments in all required grades or subject areas.
    Discussion: We appreciate the support for providing flexibility for 
States to propose an innovative assessment system in any, or all, 
required grades and subjects under section 1111(b)(2)(B)(v) of the ESEA 
as it enables States to develop the innovative demonstration authority 
at a scope to meet their needs and priorities.
    Changes: None.
    Comments: A few commenters encouraged the Department to clarify in 
proposed Sec.  200.77(b)(1) that the innovative assessment must be 
administered to all students and all student subgroups within 
participating schools, believing that it is critical to emphasize that 
all students in each school are expected to participate in the 
innovative assessment.
    Discussion: We agree with commenters that it is important for all 
students, including all students within particular subgroups, to be 
administered the innovative assessment in each participating school, 
and the intent of proposed Sec.  200.77(b)(1) was to require all 
students in each participating school to take the innovative 
assessment, if an innovative assessment was developed for a subject or 
grade in which they were enrolled under the demonstration authority. 
Given the concerns of the commenters, we are revising the regulations 
to more clearly state that all students in each participating school 
must take the innovative assessment in each grade and subject in which 
an innovative assessment is being piloted. However, we note that, taken 
together, final Sec.  200.105(b)(1)(i) and (ii) (proposed Sec.  
200.77(b)(1)(i) and (ii)) do not require States to develop an 
innovative AA-AAAS for students with the most significant cognitive 
disabilities for each innovative general assessment; a State only 
developing an innovative general assessment would be required to 
continue administering its statewide AA-AAAS to students with the most 
significant cognitive disabilities, consistent with applicable 
statutory and regulatory requirements under title I, part A. All 
children with disabilities ineligible for the AA-AAAS in the 
participating school in the grade and subject for which the State has 
an innovative assessment should participate in the innovative 
assessment.
    Changes: We have added to new Sec.  200.105(b)(1)(i) (proposed 
Sec.  200.77(b)(1)(i)) to clarify that the innovative assessment must 
be administered to all students in a subset of participating LEAs or a 
subset of participating schools within a participating LEA.
    Comments: One commenter recommended that proposed Sec.  
200.77(b)(1)(i), which exempts States from administering the same 
assessment to all elementary and secondary students in the State once 
it has been granted demonstration authority, be clarified, as it 
suggests States may simultaneously pilot multiple innovative 
assessments even within the same grade or content area. If that was the 
Department's intent, the commenter suggested that multiple innovative 
assessments should each meet all applicable regulatory requirements.
    Discussion: We appreciate the commenter's suggestion for 
clarification in this area. The Department intends for the 
demonstration authority to be used

[[Page 88952]]

to pilot a single innovative assessment system, which--if successful--
will replace the current statewide assessment. It was not meant to 
allow for a State to try out multiple different innovative assessment 
systems simultaneously; accordingly, we are adding to new Sec.  
200.105(b)(1)(i) (proposed Sec.  200.77(b)(1)(i)) to clarify that a 
State with demonstration authority may implement a single innovative 
assessment system, rather than ``innovative assessments,'' and that the 
requirement to administer the same assessment to all public school 
students in the State does not apply during the demonstration authority 
period, extension period, or waiver period, but does apply once the 
innovative assessment system is used statewide consistent with new 
Sec.  200.107 (proposed Sec.  200.79).
    Changes: We have added to new Sec.  200.105(b)(1)(i) (proposed 
Sec.  200.77(b)(1)(i)) to specify that a State with demonstration 
authority may implement an ``innovative assessment system'' initially 
in a subset of LEAs, or a subset of schools within an LEA, during the 
demonstration authority period, extension period, or waiver period, but 
must administer the same assessment to all public school students upon 
transition to statewide use consistent with new Sec.  200.107 (proposed 
Sec.  200.79).
    Comments: One commenter suggested that proposed Sec.  200.77(b)(2) 
be modified to more clearly specify that all innovative assessments, 
including an innovative AA-AAAS for students with the most significant 
cognitive disabilities, align with challenging academic content 
standards for the grade in which the student is enrolled, similar to 
proposed requirements for statewide assessments under part A of title I 
of the ESEA.
    Discussion: The regulations in new Sec.  200.105(b)(1) (proposed 
Sec.  200.77(b)(1)) require that the innovative assessment system meet 
the requirements of section 1111(b)(2)(B) of the ESEA, including 
demonstrating that it is aligned with the challenging State academic 
standards and provides information about student attainment of such 
standards and whether the student is performing at the student's grade 
level. The requirement in new Sec.  200.105(b)(2)(i) (proposed Sec.  
200.77(b)(2)) applies to any innovative assessment developed under the 
demonstration authority, including an innovative AA-AAAS for students 
with the most significant cognitive disabilities.
    We agree with the commenter that it is critical for requirements 
related to alignment of assessments with academic content standards to 
be the same for the innovative assessment demonstration authority under 
part B of title I as they are for statewide assessments under part A of 
title I; like statewide assessments, all innovative assessments must be 
aligned with the breadth and depth of the challenging State academic 
content standards. To improve consistency between these regulations and 
requirements for State assessment systems under title I, part A and to 
reiterate uniform expectations for alignment, we are revising these 
regulations by adding ``challenging'' to the reference to the State's 
academic content standards and removing ``full'' modifying depth and 
breadth of State academic content standards. We also agree with 
commenters that it would be helpful to clarify that these standards 
apply to the grade in which a student is enrolled, which also improves 
alignment of these requirements with those in section 1111(b)(2)(B) of 
the ESEA.
    Changes: We have added Sec.  200.105(b)(2)(i) to clarify that the 
innovative assessment must align to the challenging State academic 
content standards under section 1111(b)(1) of the ESEA, including their 
depth and breadth, for the grade in which a student is enrolled.
    Comments: One commenter appreciated the clarification and the 
flexibility in the proposed regulations to allow implementation of the 
innovative assessment pilot in a subset of LEAs or schools in one or 
more LEAs. Another commenter, however, objected to this flexibility, 
believing that participating LEAs should be required to administer the 
same assessment in all schools in the LEA each year. The commenter was 
concerned the requirement would set a precedent for incomparable 
assessment results and different expectations among schools in a single 
school district.
    Discussion: We appreciate commenters' feedback, but continue to 
believe that it is helpful to provide States and LEAs with flexibility 
to determine whether it is best to pilot the innovative assessment 
system in all schools within an LEA in the same year, or whether an LEA 
would be able to better support high-quality implementation if it has 
multiple years to expand the pilot within the LEA to all schools. In 
particular, we believe this flexibility will benefit especially large 
LEAs that will need to support hundreds of schools in implementing a 
new--and potentially quite different--system, which will require shifts 
in instruction, new professional development, and other significant 
investments of time and resources.
    Further, we believe that the statutory and regulatory requirements 
that ensure valid, reliable, and comparable annual summative 
determinations, based on the State's academic standards, between the 
innovative assessment system and the statewide assessment, particularly 
in new Sec.  200.105(b)(2)-(4), allay the commenter's concern that this 
flexibility will result in incomparable data and disparate expectations 
for students in participating and non-participating schools. To that 
end, we are adding to new Sec.  200.105(b)(3) (proposed Sec.  
200.77(b)(3)) to clarify that the innovative assessment system must 
express student results ``consistent with'' the ``challenging'' State 
academic achievement standards; we are making these changes given that, 
as proposed, the provision to express results ``in terms consistent 
with'' the State's academic achievement standards could have been 
misinterpreted to only require that the same labels be used to describe 
student achievement on the innovative assessment as are used to 
describe student achievement on the statewide assessment--even if those 
labels carried very different meaning in terms of students' mastery of 
the challenging State academic achievement standards. We believe that 
removing ``in terms'' and adding ``challenging'' to new Sec.  
200.105(b)(3) helps clarify that the academic achievement standards 
must be consistent and comparable between the innovative and statewide 
assessment systems. This requirement is also reiterated in new Sec.  
200.105(b)(4)(ii), as discussed in response to comments on 
comparability of the two assessment systems.
    Changes: We have added Sec.  200.105(b)(3) (proposed Sec.  
200.77(b)(3)) to clarify that the innovative assessment system must 
express student results or competencies ``consistent with'' the 
``challenging'' State academic achievement standards.
    Comments: One commenter suggested the Department require SEAs to 
include demographically diverse LEAs or schools in the innovative 
assessment pilot from the very beginning of the demonstration authority 
period, as opposed to the requirement in the proposed regulations under 
which SEAs must ensure they are moving toward including demographically 
diverse LEAs over the course of the demonstration authority. The 
commenter pointed out that the inclusion of different types of LEAs 
from the outset, such as urban, suburban, and rural LEAs, will ensure 
that SEAs understand the needs of different types of districts and 
schools as they implement an innovative

[[Page 88953]]

assessment system. Another commenter supported the intent of proposed 
Sec. Sec.  200.77(d)(3)(ii) and 200.78(a)(3)(iii), but suggested the 
final rule strengthen the selection criterion so that a State must use 
the demographic composition of its public school students, rather than 
its initially participating LEAs, as the baseline to measure progress 
toward a more demographically representative subset of schools 
participating in the innovative assessment system.
    Discussion: The Department shares a commitment to ensuring that 
SEAs include demographically diverse LEAs and schools in their 
innovative assessment systems over time, but we continue to believe 
that it is necessary to provide States with reasonable flexibility in 
how they scale their innovative assessment system statewide during the 
demonstration authority period. While it is critically important for 
States to implement and pilot their new assessment systems in 
demographically diverse LEAs and schools as soon as possible in order 
to make sure the assessment system is viable and effective in a wide 
range of contexts, requiring implementation in demographically 
representative LEAs and schools in the first year could result in 
rushed implementation in LEAs and schools that are not fully prepared 
for the significant changes an innovative assessment system may 
require. With gradual implementation, SEAs may be better able to 
recruit districts and schools that are willing and prepared to try the 
innovative assessment system first, which can serve as proof points for 
other districts and help set the entire State and its schools up for 
success. Nonetheless, all participating States must demonstrate in 
their application under new Sec.  200.105(b)(5) (proposed Sec.  
200.77(b)(5)) that the innovative assessment system will provide for 
the participation of, and be accessible to, all students, including 
children with disabilities and English learners, and provide 
appropriate accommodations consistent with section 1111(b)(2) of the 
ESEA.
    Further, we believe that States will be most likely to succeed in 
scaling their innovative assessment if they can develop rigorous 
criteria for determining when to add new LEAs or schools, with a plan 
that includes annual benchmarks, as described in new Sec.  
200.106(a)(3)(iii) (proposed Sec.  200.78(a)(3)(iii)), to achieve 
implementation in demographically diverse settings over time. We are, 
however, revising new Sec.  200.106(a)(3)(iii) to clarify that the 
benchmarks are intended to achieve high-quality and consistent 
implementation across all participating schools that are similar 
demographically to the State as a whole during the demonstration 
authority period, using the demographics of participating schools as 
the baseline. Our intent in specifying that the demographics of 
initially participating schools must serve as the baseline in setting 
these benchmarks is to signal that the demographics of initial 
participants, which may be a subset of schools with an LEA, are the 
starting point--while the demographics of all students and schools in 
the State serve as the end point for these benchmarks.
    Changes: We have added to new Sec.  200.106(a)(3)(iii) (proposed 
Sec.  200.78(a)(3)(iii)) to clarify that the baseline for setting 
annual benchmarks toward high-quality and consistent implementation 
across schools that are demographically similar to the State as a whole 
is the demographics of participating schools, not LEAs.
    Comments: One commenter requested that the Department require 
innovative assessments to include items and tasks that are the same 
across all participating LEAs and schools. The commenter argued that 
administering identical assessments is a critical equity lever to 
ensure that all students are receiving rigorous instruction, and that 
schools are being held accountable for the performance of all students 
on high-quality assessments.
    Discussion: Under new Sec.  200.105(b)(1) (proposed Sec.  
200.77(b)(1)), the innovative assessments included within a State's 
innovative assessment system under the demonstration authority must 
meet the requirements of section 1111(b)(2)(B) of the ESEA. As section 
1111(b)(2)(B) and corresponding regulations do not require a State to 
use the same items or tasks on an assessment administered statewide 
under part A of title I and allow for multiple forms of the statewide 
assessment, we believe it would be inappropriate, and counter to the 
purpose of encouraging assessment innovation and flexibility, to 
include such a requirement for assessments developed under the 
innovative assessment demonstration authority. In addition, we note 
that the requirements for valid, reliable, and comparable annual 
summative determinations, based on the State's academic standards, 
between the innovative assessment system and the statewide assessment, 
particularly as set forth in new Sec.  200.105(b)(2)-(4), (proposed 
Sec.  200.77(b)(2)-(4)) help ensure that accountability and data 
reporting will be consistent between participating and non-
participating schools and help to protect equitable expectations for 
all students.
    Changes: None.
    Comments: A few commenters recommended that the regulations 
explicitly require that a State be able to calculate student growth 
from its innovative assessment system. Another commenter suggested that 
the peer review process should be used to make a determination on 
whether the innovative assessment system may be used to calculate 
student growth.
    Discussion: The Department appreciates the commenters' views on the 
use of innovative assessments to estimate student growth, and 
encourages States to strongly consider if it will be beneficial for the 
innovative assessment to measure student growth when designing the 
system. However, the Department believes it is more consistent with 
both the requirements for State assessments under section 
1111(b)(2)(B)(vi) of the ESEA, and the prohibition in section 
1111(e)(1)(B)(iii)(III) of the ESEA, for the innovative assessment 
demonstration authority to not include a requirement for innovative 
assessments to measure student growth or for peer reviewers to make a 
determination of whether the innovative assessment system may be used 
to measure student growth.
    Changes: None.
Comparability
    Comments: Several commenters supported the requirement in proposed 
Sec.  200.77(b)(4) that States demonstrate comparability of the 
innovative assessment results to the statewide academic assessment. One 
commenter, while providing general support for the requirement, also 
encouraged the Department to avoid adding burden with overly 
prescriptive requirements for comparability and for the design and 
implementation of an innovative assessment system. Another commenter 
did not agree with the requirement that the innovative assessment must 
provide comparable, valid, and reliable results to the statewide 
assessment.
    Discussion: The Department agrees that comparability is key to the 
development of a valid and reliable innovative assessment system that 
meets the statutory requirements for innovative assessment 
demonstration authority. Additionally, the Department solicited 
feedback from the public during the notice and comment period of the 
NPRM to gather additional ideas on how the Department can ensure 
comparability between existing statewide assessments and innovative 
assessments a State may pilot. Section 1204(e)(2)(A)(iv) of the ESEA 
requires

[[Page 88954]]

that a State's innovative assessment system generate ``results that are 
valid and reliable, and comparable, for all students and for each 
subgroup of students'' compared to the results for those students on 
the statewide assessment under title I, part A. Section 1601(a) of the 
ESEA provides that the Secretary ``may issue . . . such regulations as 
are necessary to reasonably ensure that there is compliance'' with the 
law. The Department also has rulemaking authority under section 410 of 
the GEPA, 20 U.S.C. 1221e-3, and section 414 of the DEOA, 20 U.S.C. 
3474.
    We firmly believe that the requirements for comparability are 
necessary to reasonably ensure that States meet the requirement in 
section 1204(e)(2)(A)(iv) as well as other statutory requirements under 
section 1204(e)(2)(A)(xi) of the ESEA, such as the requirement ``to 
validly and reliably aggregate data from the innovative assessment 
system'' for purposes of school accountability and data reporting under 
title I, part A. Thus, these regulations are consistent and 
specifically intended to ensure compliance with section 1204 of the 
ESEA.
    The Department acknowledges that the requirements for comparability 
for innovative assessment systems are rigorous in these regulations, 
but believes they are reasonable because setting clear expectations for 
comparability will lead to stronger evidence of validity and 
reliability from States. While the Department appreciates the need to 
allow States flexibility in designing innovative assessments, this 
flexibility must be balanced with the imperative that States meet all 
of the statutory provisions and ensure their innovative assessment 
systems are valid, reliable, fair, and of high-quality. In addition, by 
providing multiple paths to demonstrating comparability, including a 
State-determined method, we believe we are providing sufficient 
flexibility to States in how they may demonstrate comparability.
    Changes: None.
    Comments: One commenter urged the Department to ensure that the 
comparability requirements in proposed Sec.  200.77(b)(4) provide for 
the evaluation of new innovative assessments in terms of their ability 
to allow for the comparison of student performance against the 
challenging State academic standards across districts and among 
subgroups of students.
    Discussion: The Department agrees that it is important to establish 
comparability of student performance on the innovative assessment 
systems with statewide assessments, and believe the regulations 
sufficiently address the commenter's concern. New Sec.  200.105(b)(2)-
(3) (proposed Sec.  200.77(b)(2)-(3)) requires the innovative 
assessment system to be aligned with the same academic content and 
achievement standards with which the statewide assessment is aligned, 
and as previously described, we are revising new Sec.  200.105(b)(2)-
(3) to further clarify these expectations. In addition, new Sec.  
200.105(b)(4)(i) (proposed Sec.  200.77(b)(4)) will ensure that States 
plan, as described further in the selection criterion related to 
evaluation and continuous improvement in new Sec.  200.106(e) (proposed 
Sec.  200.78(e)), for how they will demonstrate that the annual 
summative determinations for students (which are based on the 
challenging State academic standards) are comparable between the two 
assessment systems, including for all students and for each subgroup of 
students under section 1111(b)(2)(B)(xi) of the ESEA.
    Changes: None.
    Comments: Many commenters requested that the Department make 
explicit that the requirement for comparability is based on the annual 
summative determinations of student proficiency on the innovative 
assessment as compared to the results (i.e., the academic achievement 
levels) on the statewide assessment.
    Discussion: The Department agrees with these commenters that 
comparability of the innovative assessment to the statewide assessment 
should be based on annual summative determinations of student 
proficiency on the innovative assessment system. While the two 
assessment systems must be aligned to the same challenging State 
academic content and achievement standards and produce student results 
that are valid, reliable, and comparable--as described in section 
1204(e)(2)(A)(ii)-(iv) of the ESEA--we did not intend to imply that the 
raw scores or scale score levels must be directly comparable, and we 
are adding to new Sec.  200.105(b)(4)(i) (proposed Sec.  200.77(b)(4)) 
to clarify that the requirement for comparability between the two 
assessment systems is based on results, including annual summative 
determinations, generated for all students and for each subgroup of 
students.
    Changes: We have added to new Sec.  200.105(b)(4)(i) (proposed 
Sec.  200.77(b)(4)) to clarify that determinations of the comparability 
between the innovative and statewide assessment systems must be based 
on results, including the annual summative determinations, as defined 
in new Sec.  200.105(b)(7) (proposed Sec.  200.77(b)(7)), that are 
generated for all students and for each subgroup of students and have 
made a conforming change to new Sec.  200.106(b)(1)(ii)(C) (proposed 
Sec.  200.78(b)(1)(ii)(C)).
    Comments: A number of commenters urged the Department not to define 
comparability so narrowly that it would stifle innovation and generally 
advised the Department not to list specific methodologies for 
establishing comparability in regulation, but instead provide examples 
of various approaches in non-regulatory guidance. These commenters also 
recommended that the Department allow a State to develop an evaluation 
methodology for establishing comparability that is consistent with the 
design and context of its innovative assessment system. Similarly, some 
commenters advised that States should consider multiple approaches to 
comparability evaluations to provide a more complete picture of the 
degree of comparability.
    Discussion: The Department agrees with commenters that States may 
need flexibility in establishing the comparability of their innovative 
assessment system with their statewide assessment system, and that it 
is important for a State to select a comparability methodology that is 
best aligned with the design and context of its innovative assessment 
system. To support these goals, new Sec.  200.105(b)(4)(i)(E) (proposed 
Sec.  200.77(b)(4)(iv)) allows for a State-designed comparability 
methodology should the State not wish to pursue one of the other four 
methods in the regulations; States may propose an alternate methodology 
that provides for an equally rigorous and statistically valid 
comparison between student performance on the innovative assessment and 
the statewide assessment.
    However, we also believe that demonstrating comparability between 
the two assessment systems, as required by section 1204(e)(2)(A)(iv) of 
the ESEA is a critical safeguard for fairness and equity during the 
demonstration authority period, when both assessment systems will be in 
use throughout the State for school accountability and data reporting 
purposes under title I, part A for a period of five years, or more. If 
the data from the innovative assessment system are not comparable to 
the statewide assessment during this time, the integrity and validity 
of the school accountability system will be jeopardized; schools and 
students requiring additional supports may go

[[Page 88955]]

unidentified and not receive the extra resources they deserve; and 
parents, educators, and community members will lack transparent and 
clear data about student performance. Because the comparability 
requirement is paramount to consistently measuring student progress 
against the challenging State academic standards throughout the State, 
and recognizing that demonstrating comparability may be technically 
challenging for States, the regulations include examples of four 
methods a State may use to demonstrate comparability, in addition to 
providing the option for a State-designed methodology. We believe 
providing these examples in the regulations, which were developed based 
on public comment and recommendations from researchers and assessment 
experts, States and other stakeholders, will be helpful to States 
interested in the demonstration authority for several reasons. Having 
these examples in the regulation will help States in evaluating and 
adopting rigorous and well-established methods to meet the statutory 
requirement for comparable assessment systems; can support States in 
immediate planning for the activities and strategies that will be part 
of an innovative assessment pilot prior to the release of any Notice 
Inviting Applicants (NIA), peer review guidance, or additional non-
regulatory guidance; and provides context and a helpful comparison if 
States decide to pursue their own State-designed method to demonstrate 
comparability. Because a State-designed method for demonstrating 
comparability between the two assessments is also permitted, we believe 
the regulations balance the requirement that States must sufficiently 
demonstrate comparability, as described in section 1204(e)(2)(A)(iv) of 
the ESEA, with the desire to provide States with flexibility and 
promote innovation in designing innovative assessment systems.
    Changes: None.
    Comments: Several commenters provided technical advice to the 
Department regarding the methodologies for demonstrating comparability. 
These commenters urged the Department to make judgments on the strength 
of the theory and evidence provided by States to support comparability 
for each innovative assessment system and avoid an overly prescriptive 
approach, offering a detailed list of considerations and decision 
points States could use in selecting a comparability method. Finally, 
while agreeing with the technical soundness of the methodologies 
provided in the regulations, these commenters described a dozen 
specific research approaches for evaluating comparability under 
proposed Sec.  200.77(b)(4), such as propensity score matching. These 
commenters encouraged the Department to not include any specific 
methodologies in regulation but provide a multitude of methodologies in 
guidance.
    Discussion: The Department appreciates these commenters' analysis 
and recommendations, but as previously discussed, continues to believe 
that new Sec.  200.105(b)(4)(i) (proposed Sec.  200.77(b)(4)) should 
include examples of methods that we believe a State could use in order 
to meet the requirement in section 1204(e)(2)(A)(iv) of the ESEA to 
generate results that are valid, reliable, and comparable between the 
two assessment systems--including a State-designed methodology--as a 
way to help States develop strong proposals and to clarify what the 
expectations of the peer reviewers will be, among other reasons. These 
examples were not intended to be the only methodologies the Department 
would consider for a State to demonstrate comparability. The Department 
agrees that there are a number of technically sound methodologies that, 
if well-designed, could support a State's demonstration of 
comparability for its innovative assessment system beyond those 
specified in new Sec.  200.105(b)(4)(i)(A)-(D) (proposed Sec.  
200.77(b)(4)(i) through (iii)) and provide for an equally rigorous and 
statistically valid comparison. Further, we note that several of the 
specific suggestions (e.g., propensity score matching) from the 
commenters could be used to evaluate comparability as part of any of 
the methods included in new Sec.  200.105(b)(4)(i), as these methods 
consider how a State may use its innovative and statewide assessment 
systems during the demonstration authority in order to establish 
comparability between the two systems but do not specify a particular 
research or evaluation approach. We believe that States should 
administer the innovative and statewide assessments in participating 
schools and LEAs in a way that works best for the design of their 
innovative assessment system, and select an approach and research 
methodology for demonstrating comparability that is appropriate to that 
design. We believe that the regulations provide sufficient flexibility 
for States to do so--including by allowing for a State-determined 
method beyond the options described in new Sec.  200.105(b)(4)(i)(A)-
(D). We will consider providing additional examples in any technical 
assistance the Department may provide to States and in guidance for 
peer reviewers.
    In response to the additional proposed methodologies that included 
a suggestion to allow States to administer items from the innovative 
assessment to students taking the statewide assessment, we are 
clarifying in new Sec.  200.105(b)(4)(i)(C) and (D) that States may 
include items ``or performance tasks'' from the innovative assessment 
on the statewide assessment, and vice versa, if their inclusion 
constitutes a significant portion of the assessment and is appropriate 
for the research design to demonstrate comparability proposed by the 
State.
    Changes: We have added to new Sec.  200.105(b)(4)(i)(C) to clarify 
that States may include, as a significant portion of the innovative 
assessment system in each required grade and subject in which both an 
innovative and statewide assessment is administered, items or 
performance tasks from the statewide assessment system that, at a 
minimum, have been previously pilot tested or field tested for use in 
the statewide assessment system.
    We have also added Sec.  200.105(b)(4)(i)(D) to clarify that States 
may include, as a significant portion of the statewide assessment 
system in each required grade and subject in which both an innovative 
and statewide assessment is administered, items or performance tasks 
from the innovative assessment system that, at a minimum, have been 
previously pilot tested or field tested for use in the innovative 
assessment system.
    Comments: Some commenters noted that as an innovative assessment 
system is taken to scale statewide, comparability with the statewide 
assessment systems becomes less important than the comparability of 
results among LEAs and schools using the innovative system of 
assessments. These commenters urged the Department to modify the 
regulations to not require an annual comparability evaluation between 
the statewide and innovative assessment systems; they argued that if 
the evidence for comparability across the two systems of assessment is 
strong, comparability of the innovative assessment with the statewide 
assessment need not be re-evaluated every year.
    Discussion: The Department agrees that as the innovative assessment 
system scales into wider use among LEAs and schools, comparability 
among the LEAs and schools administering the innovative assessment 
system will become more important than in the beginning of the 
demonstration

[[Page 88956]]

authority period. Further, we note that the comparability, validity, 
reliability, and technical quality of innovative assessments across 
participating LEAs and schools will be one critical component of the 
peer review required to transition to statewide use of the innovative 
assessment for purposes of part A of title I, as described further in 
new Sec.  200.107 (proposed Sec.  200.79). Given these comments, the 
Department is also concerned that the requirement for comparable 
results within the innovative assessment system was unclear in the 
regulations, as proposed. As the innovative assessment system will be 
used during the demonstration authority period for purposes of school 
accountability and reporting, it is imperative for States to have plans 
and procedures in place to ensure the quality, validity, reliability, 
and consistency of assessment blueprints, items or tasks, test 
administration, scoring, and other components across participating LEAs 
and schools. To clarify that comparability between LEAs and schools 
participating in the innovative assessment is required and reinforce 
that States should take this into account as they develop and implement 
their innovative assessment system, we are adding new Sec.  
200.105(b)(4)(ii) to specify that States must annually determine the 
comparability of the innovative assessment system, including annual 
summative determinations that are valid, reliable, and comparable for 
all students and each subgroup of students, among participating schools 
and LEAs. This will also be part of a State's plan for evaluation and 
continuous improvement as described in new Sec.  200.106(e) (proposed 
Sec.  200.78(e)).
    We disagree that an annual demonstration of comparability between 
the innovative and statewide assessment systems is unnecessary or 
overly burdensome as States focus on scaling their innovative systems. 
As provided in section 1601(a) of ESEA, ``[t]he Secretary may issue . . 
. such regulations as are necessary to reasonably ensure that there is 
compliance'' with the statute. Also, the Department has rulemaking 
authority under section 410 of the GEPA, 20 U.S.C. 1221e-3, and section 
414 of the DEOA, 20 U.S.C. 3474. Section 1204(e)(2)(A)(iv) requires 
that the innovative assessment system generates valid, reliable, and 
comparable results relative to the statewide assessment during the 
demonstration authority period. We believe that as an innovative 
assessment system goes to scale, the regulations related to statewide 
assessment will remain a valuable reference to monitor effective 
implementation across the increasing number of LEAs and schools that 
adopt the innovative assessment. Further, annual information on 
comparability will enable the Department to better support and work 
with States to make needed adjustments over time to maintain a high 
level of comparability between the two assessment systems, which is not 
only required by the statute, but also critical to maintain fair and 
valid school accountability determinations and transparent data 
reporting while both assessment systems are in operation during the 
demonstration authority period. Finally, these final regulations are 
consistent and specifically intended to ensure compliance with section 
1204 of the ESEA.
    For example, the evidence a State will provide to demonstrate that 
its statewide and innovative assessment systems are comparable may need 
to change little from one year to next, particularly in any year of the 
demonstration authority period where the innovative assessment has not 
expanded to a large number of new schools or where implementation has 
been relatively stable--in such cases, providing this information will 
result in minimal work for SEAs and will assure the Department that the 
SEA continues to comply with the minimal requirements for demonstration 
authority. However, there are many cases where implementation from one 
year to the next will not be as stable, leading to variation in the 
results between the two assessments over time. For instance, 
comparability could be strengthened in later years if the State makes 
adjustments to modify its performance tasks to better align with the 
State's academic content standards or to improve the inter-rater 
reliability and training of evaluators. However, comparability could 
decline in later years of the demonstration authority period if the 
initial participating LEAs had greater prior experience with the 
innovative assessment system, and newly added LEAs struggle to 
implement the innovative assessment system with the same fidelity as 
early adopters. Similarly, if initially participating schools are not 
demographically representative of the State as a whole, the 
comparability of the innovative assessment system results to the 
statewide assessment could change as greater numbers of students take 
the innovative assessment, including children with disabilities and 
English learners. Without annual information on comparability between 
the statewide and innovative assessment systems, the Department would 
not be able to provide the necessary technical assistance to States 
that see these fluctuations over time and would not have essential 
information to ensure compliance with the statutory requirements in 
section 1204 for the demonstration authority.
    Changes: We have added Sec.  200.105(b)(4)(ii) to require that 
States' innovative assessment systems generate results, including 
annual summative determinations, that are valid, reliable, and 
comparable for all students and for each subgroup of students among 
participating schools and LEAs, which an SEA must annually determine as 
part of its evaluation plan described in Sec.  200.106(e).
Accessibility
    Comments: A few commenters supported proposed Sec.  200.77(b)(5), 
which would require SEAs to ensure that the innovative assessment 
systems provide for the participation of, and are accessible to, all 
students, including students with disabilities and English learners. 
One commenter also expressed support for the provision that the 
innovative assessment system may incorporate, as appropriate, the 
principles of universal design for learning (UDL), noting that UDL 
includes principles for flexible approaches and accommodations in 
assessment. However, another recommended that the words ``as 
appropriate'' be removed, in order to require the use of the principles 
of UDL in the development of innovative assessments, which they 
believed would be more consistent with the requirements of section 
1204(e) of the ESEA.
    Discussion: We appreciate the support of commenters for ensuring 
innovative assessments are accessible to all students, and share their 
belief that innovative assessments should be accessible to all 
students. We agree that the language should encourage States to 
incorporate the principles of UDL. We also believe this language should 
be consistent with how principles of UDL are included in Sec.  
200.2(b)(2)(ii) with respect to the requirements for statewide 
assessments under part A of title I. This will help to reiterate for 
States that they should develop innovative assessment systems that will 
be able to meet the title I, part A requirements when the States seek 
to transition to statewide use of the innovative assessment and undergo 
peer review under title I, part A, as described in Sec.  200.107 
(proposed Sec.  200.79).

[[Page 88957]]

    We are therefore adding to new Sec.  200.105(b)(5) (proposed Sec.  
200.77(b)(5)) to state that the principles of UDL should be 
incorporated ``to the extent practicable'' instead of ``as 
appropriate'' consistent with section 1111(b)(2)(B)(xiii) of the ESEA.
    Changes: We have added to new Sec.  200.105(b)(5) to make clearer 
the three concepts contained in that section include: Participation of 
all students; accessibility by incorporating principles of UDL; and 
accommodations. We have also specified in Sec.  200.105(b)(5)(ii) that 
the principles of UDL should be incorporated ``to the extent 
practicable.''
    Comments: Multiple commenters advocated amending proposed Sec.  
200.77(b)(5) to require specific accessibility standards for digital 
content, such as Web Content Accessibility Guidelines (WCAG) 2.0, as 
part of an innovative assessment system.
    Discussion: Section 1204(e)(2)(A)(vi) of the ESEA requires all 
innovative assessment systems to be accessible to all students, such as 
by incorporating the principles of UDL. The requirement that assessment 
systems be accessible to individuals with disabilities is also based on 
the Federal civil rights requirements of section 504 of the 
Rehabilitation Act, 29 U.S.C. 794, title II of the Americans with 
Disabilities Act, 42 U.S.C. 12131 et seq., and their implementing 
regulations, all of which are enforced by the Department's Office for 
Civil Rights (OCR). In OCR's enforcement experience, where an SEA 
collects information through electronic and information technology, 
such as student assessment, it is difficult to ensure compliance with 
accessibility requirements without adherence to modern standards, such 
as the WCAG 2.0 Level AA standard. However, we do not think further 
requirements regarding digital content are appropriate here since the 
assessment models that States pilot could be quite different depending 
on a State's specific priorities and goals--some innovative assessments 
may be heavily dependent on digital content, while another innovative 
assessment system could use very little digital content. Regardless, 
the baseline requirement under both ESEA and Federal civil rights laws 
remains that the innovative assessment system must be accessible for 
all students, including all children with disabilities. In addition, we 
note that any innovative assessment system developed under the 
demonstration authority must, prior to transition to statewide use, 
undergo a second peer review as described in new Sec.  200.107 
(proposed Sec.  200.79) to determine if the system meets the 
requirements for State assessments and accountability under part A, of 
title I, which includes a regulatory requirement related to 
accessibility and nationally recognized accessibility standards under 
Sec.  200.2. Thus, it is clear that SEAs' innovative assessment systems 
will, when implemented at scale, also be subject to these same 
requirements to incorporate the principles of UDL to the extent 
practicable.
    Changes: None.
Participation Rates
    Comments: One commenter opposed the requirement in proposed Sec.  
200.77(b)(6) that, for purposes of the State accountability system, the 
innovative assessment system must annually measure the achievement of 
at least 95 percent of all students, and 95 percent of students in each 
subgroup. The commenter believes that this provision would impose an 
additional requirement taken from section 1111(c)(4)(E)(iii) of the 
ESEA on participating schools and additional consequences on such 
schools for not assessing 95 percent of students, contrary to 
congressional intent. The commenter recommended requiring innovative 
assessment participation in schools participating in the demonstration 
authority at a rate that is no less than the participation rate of 
students in the statewide assessment system. In particular, the 
commenter does not believe that demonstration authority should be 
placed at risk because of assessment participation requirements.
    Discussion: We believe the commenter's concerns may be addressed by 
further clarifying the intent of new Sec.  200.105(b)(6) (proposed 
Sec.  200.77(b)(6)) and related requirements. The commenter is correct 
that section 1111(c)(4)(E)(iii) of the ESEA requires States to factor 
95 percent participation in State assessments into their accountability 
systems. However, section 1111(c)(4)(E)(i)-(ii) also includes specific 
requirements for the measurement of academic achievement based on State 
assessments, including (1) a requirement that States annually measure, 
for school accountability, the progress of at least 95 percent of all 
students and 95 percent of students in each subgroup on the State's 
reading/language arts and mathematics assessments, and (2) a 
requirement that, for purposes of measuring, calculating, and reporting 
on the Academic Achievement indicator, the denominator must always 
include either the number of students with valid assessment scores or 
95 percent of students enrolled in the school, whichever is greater. 
New Sec.  200.105(b)(6) (proposed Sec.  200.77(b)(6)) and related 
requirements for 95 percent assessment participation in the final 
regulations for innovative assessment demonstration authority were 
intended to clarify how these statutory requirements for measurement of 
academic achievement related to school accountability apply to 
participating schools in the demonstration authority.
    Section 1204(e)(2)(A)(ix) of the ESEA requires that the innovative 
assessment system annually measure the progress of ``not less than the 
same percentage'' of all students and students in each subgroup in 
participating schools as were assessed by schools administering the 
statewide assessments and ``as measured under section 1111(c)(4)(E)'' 
(emphasis added). As explained previously, the percentage of all 
students and students in each subgroup whose performance on assessments 
must be measured for accountability under section 1111(c)(4)(E)(i) of 
the ESEA is 95 percent of students and 95 percent of students in each 
subgroup; the requirements in section 1111(c)(4)(E)(ii) of the ESEA 
reinforce this further by requiring that at least 95 percent of all 
students and students in each subgroup be included in calculating the 
Academic Achievement indicator. As a result, ``not less than the same 
percentage'' will always be 95 percent, because the Academic 
Achievement indicator--``as measured under ESEA section 
1111(c)(4)(E)''--will always measure the performance of 95 percent of 
all students and 95 percent of students in each subgroup enrolled in a 
school.
    New Sec.  200.105(b)(6) does not prescribe how each State will 
factor participation rates into its accountability system for all 
public schools, as required under section 1111(c)(4)(E)(iii) of the 
ESEA. This requirement would still apply to all schools in the State, 
including schools participating in the innovative assessment 
demonstration authority, because of requirements in section 
1204(e)(2)(A)(xi) and (C)(iii) of the ESEA to maintain consistent, 
valid, and reliable accountability for all schools, but the actions for 
holding schools accountable for improving school participation rates 
are determined by the State as described in the statutory requirements 
for statewide accountability systems. While the commenter is correct 
that the Secretary may withdraw demonstration authority for a number of 
reasons, including when a State cannot provide evidence that it is 
meeting the requirements under new Sec.  200.105, this does not mean 
low

[[Page 88958]]

assessment participation in a school or LEA will automatically result 
in withdrawal of demonstration authority. In order for a State to meet 
the requirement under new Sec.  200.105(b)(6), the State would need to 
hold participating schools accountable for 95 percent participation in 
assessments in the same way as it does for all public schools, 
including the calculation of the Academic Achievement indicator and the 
way the State determines it will factor the 95 percent participation 
requirement into its overall accountability system consistent with 
section 1111(c)(4)(E) of the ESEA. We believe the requirements in new 
Sec.  200.105(b)(6) help clarify the statutory language and ensure 
fairness and consistency in accountability determinations between 
participating and non-participating schools, without creating any new 
requirements for participating schools.
    Changes: None.
Annual Summative Determinations for Students
    Comments: Several commenters supported requirements in proposed 
Sec.  200.77(b)(7) regarding annual summative determinations for 
student performance on the innovative assessment. These commenters 
noted the importance of providing students and families an indicator of 
grade-level mastery of the State's academic content standards and 
making sure that all students are held to the same academic standards. 
One commenter also noted this requirement will help ensure 
comparability in student results between the statewide annual 
assessment and the innovative assessment. A few commenters requested 
further clarification in proposed Sec. Sec.  200.76(b)(2) and 
200.77(b)(1) that innovative assessments may assess a student on 
content that is above or below the content standards for the grade in 
which the student is enrolled, citing section 1111(b)(2)(J) of the 
ESEA, which allows computer-adaptive assessments to include items above 
or below grade level. These commenters believe that innovative 
assessments should be able to use a different approach for measuring 
student academic proficiency, while maintaining an annual grade-level 
determination of proficiency. Another commenter was concerned that the 
proposed requirements to produce an annual grade-level determination 
would mean innovative assessments would not also produce a valid result 
for a student's performance above or below that standard.
    Discussion: Given that the assessment requirements in title I, part 
A of the ESEA focus on the alignment of the assessment system to the 
challenging State academic standards and these academic standards also 
apply to innovative assessments as described in section 
1204(e)(2)(A)(ii)-(iii) of the ESEA, we believe it is both consistent 
with the statute and critically important to continue this focus within 
the demonstration authority. While we support the need for better and 
more valid assessments of student knowledge, we do not think that these 
assessments should set a different or lower expectation for student 
achievement. In addition, it is vital that the innovative assessment 
system provide valid, reliable, comparable, and fair determinations of 
student achievement against the challenging State academic standards 
for the student's grade, because the innovative assessments (1) will be 
used in place of the statewide assessments that are administered to 
meet the requirements in section 1111(b)(2)(B) of the ESEA; (2) will be 
required to meet these same requirements as described in section 
1204(e)(2)(A)(i) of the ESEA; and (3) will be used in the State's 
accountability system for participating LEAs and schools.
    There is nothing in these regulations that would preclude a State 
from including additional content to measure a student's mastery of 
content other than the content for the grade in which the student is 
enrolled, and we are revising the final regulations to make this clear. 
A State is able to include such content, whether through a computer-
adaptive design or some other innovative design, provided the 
innovative assessment system meets the statutory and regulatory 
requirements, including by producing an annual summative determination 
that describes the student's mastery of the State's grade-level 
academic content standards based on the State's aligned academic 
achievement standards.
    Changes: We have added new Sec.  200.105(b)(2)(ii) (proposed Sec.  
200.77(b)(2)) to clarify that innovative assessments may include items 
above or below the State's academic content standards for the grade 
level in which a student is enrolled, so long as, for purposes of 
reporting and school accountability consistent with new Sec.  
200.105(b)(3) and (7)-(9), the State measures a student's academic 
proficiency based on the challenging State academic standards for the 
grade in which a student is enrolled.
    Comments: One commenter recommended that the regulations clarify 
more specifically that the annual summative determination under 
proposed Sec.  200.77(b)(7) be based on the State's academic 
achievement standards that are aligned to grade-level academic content 
standards. One commenter specifically recommended that proposed Sec.  
200.77(b)(7) be modified to state that the achievement standards must 
be ``aligned'' to the State's grade-level academic content standards, 
believing such an addition was especially critical if a State adopts an 
innovative AA-AAAS.
    Discussion: The Department agrees that any innovative assessment 
(including an innovative AA-AAAS) must produce an annual summative 
determination for each student that describes the students' mastery of 
grade-level academic content standards, using either the State's 
academic achievement standards or, for students with the most 
significant cognitive disabilities, the State's alternate academic 
achievement standards. Section 1111(b)(1) of the ESEA requires that 
challenging State academic standards include academic content standards 
and aligned academic achievement standards, and these requirements 
apply whether or not a State applies for or receives innovative 
assessment demonstration authority. To clarify this in the final 
regulations, we are adding to new Sec.  200.105(b)(7) to specify that 
(1) the annual summative determination of achievement for a student on 
the innovative assessment describes the student's achievement of the 
challenging State academic standards (i.e., both the State's academic 
content and achievement standards) for the grade in which the student 
is enrolled; and (2) in the case of a student with the most significant 
cognitive disabilities assessed with an innovative AA-AAAS aligned with 
the challenging State academic content standards for the grade in which 
the student is enrolled, the innovative AA-AAAS must provide an annual 
summative determination of to the student's mastery of the alternate 
academic achievement standards for each such student.
    Changes: We have added to new Sec.  200.105(b)(7) (proposed Sec.  
200.77(b)(7)) to require that the innovative assessment produce an 
annual summative determination of achievement for each student that 
describes the student's mastery of the challenging State academic 
standards (i.e., both the State's academic content and achievement 
standards) for the grade in which the student is enrolled, or, in the 
case of a student with the most significant cognitive disabilities 
assessed with an alternate assessment aligned with alternate academic

[[Page 88959]]

achievement standards under section 1111(b)(1)(E) of the ESEA, the 
student's mastery of those standards.
Reporting to Parents
    Comments: Multiple commenters expressed strong support for the 
requirements in proposed Sec.  200.77(d)(4). This section would require 
an SEA to provide an assurance that it will ensure each LEA provides 
information to parents in a timely, uniform, and understandable format. 
In particular, commenters asserted the importance of providing 
assessment information for non-English speaking parents in their native 
language. While appreciating the requirement to provide oral 
translations to parents with limited English proficiency when written 
translations are not practicable, one commenter suggested the 
regulations require LEAs to secure written translations for the most 
populous language spoken, other than English, by participating 
students. Another commenter, however, recommended removing altogether 
requirements related to written and oral translations and to alternate 
formats in proposed Sec.  200.77(d)(4)(ii)-(iii), expressing concern 
about the financial burden placed on large urban districts with 
students and families who speak many different languages.
    Discussion: We appreciate the strong support for proposed Sec.  
200.77(d)(4) and agree these regulations are critical to ensure that a 
parent receives needed information about a child's academic progress on 
State assessments. Section 1111(b)(2)(B)(x) of the ESEA requires a 
State to provide information to parents in an understandable and 
uniform format, and to the extent practicable, in a language that 
parents can understand. These requirements also apply to innovative 
assessment systems developed under the demonstration authority, 
consistent with section 1204(e)(2)(A)(i) of the ESEA and new Sec.  
200.105(b)(1) (proposed Sec.  200.77(b)(1)). In addition, the statute 
includes these same requirements for accessibility of notices to 
parents under section 1112(e) of the ESEA, which requires LEAs to 
provide certain information to parents each year, including information 
pertaining to testing transparency. We believe the clarifications 
provided by new Sec.  200.105(d)(4) (proposed Sec.  200.77(d)(4)) will 
help parents take an active role in supporting their children's 
education, improve transparency and understanding of the innovative 
assessment system, and provide consistency among the statutory 
requirements, regulations, and applicable civil rights laws, as 
explained below.
    We disagree with commenters that we should require written or oral 
translations and alternate formats only to the extent practicable. 
Parents with disabilities or parents who are limited English proficient 
have the right to request notification in accessible formats. Whenever 
practicable, written translations of printed information must be 
provided to parents with limited English proficiency in a language they 
understand, and the term ``language'' includes all languages, including 
Native American languages. However, if written translations are not 
practicable for a State or LEA to provide, it is permissible to provide 
information to limited English proficient parents orally in a language 
that they understand instead of a written translation. This requirement 
is consistent with Title VI of the Civil Rights Act of 1964 (Title VI), 
as amended, and its implementing regulations. Under Title VI, 
recipients of Federal financial assistance have a responsibility to 
ensure meaningful access to their programs and activities by persons 
with limited English proficiency. It is also consistent with Department 
policy under Title VI and Executive Order 13166 (Improving Access to 
Services for Persons with Limited English Proficiency).
    We decline to further define the term ``to the extent practicable'' 
under these regulations, but remind States and LEAs of their Title VI 
obligation to take reasonable steps to communicate the information 
required by ESEA to parents with limited English proficiency in a 
meaningful way.\4\ We also remind States and LEAs of their concurrent 
obligations under Section 504 and title II of the ADA, which require 
covered entities to provide persons with disabilities with effective 
communication and reasonable accommodations necessary to avoid 
discrimination unless it would result in a fundamental alteration in 
the nature of a program or activity or in undue financial and 
administrative burdens. Nothing in the ESSA or these regulations 
modifies those independent and separate obligations. Compliance with 
the ESEA, as amended by the ESSA, does not ensure compliance with Title 
VI, Section 504 or title II.
---------------------------------------------------------------------------

    \4\ For more information on agencies' civil rights obligations 
to parents with limited English proficiency, see the Joint Dear 
Colleague Letter of Jan. 7, 2015, at Section J. (http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters suggested that if an LEA begins to 
administer a general innovative assessment in some or all schools under 
the demonstration authority, the LEA should be required to notify 
parents of students with significant cognitive disabilities that their 
child will be assessed using an assessment other than the innovative 
assessment system and provide detail on that assessment.
    Discussion: Section 1112(e) of the ESEA requires each LEA to 
provide annually to parents information on assessments required in 
their LEA, which would include, in the case of an LEA administering an 
innovative general assessment and the statewide AA-AAAS, details on the 
purpose of both assessments, the grades and subjects in which they are 
administered, and other information. In addition, section 
1111(b)(2)(D)(i)(II) and related regulations require that parents of 
students assessed using an AA-AAAS receive information about that 
assessment. Accordingly, we believe that new Sec.  200.105(d)(4) 
(proposed Sec.  200.77(d)(4)) ensures that parents in participating 
schools will receive transparent information about all required 
assessments administered to students in the school; however, we are 
adding to new Sec.  200.105(d)(4) in the final regulations to specify 
that this information must be sent to ``all'' parents of students in 
participating schools and include the grades and subjects in which the 
innovative assessment will be administered, to further clarify that an 
LEA must (1) include all parents in these notices, even if their 
student is not being assessed using an innovative assessment in the 
upcoming school year, and (2) provide information on any required 
statewide assessments that are still being given in other grades and 
subjects, including an AA-AAAS for students with the most significant 
cognitive disabilities.
    Changes: We have added to new Sec.  200.105(d)(4) to clarify that 
notices must be sent to parents of all students, including in a manner 
accessible to parents and families with limited English proficiency and 
those with disabilities, in participating schools and include specific 
information on the innovative assessment in each required grade and 
subject in which it is being administered.

200.106 Demonstration Authority Selection Criteria

General
    Comments: One commenter supported the general depth of the 
selection criteria in the proposed regulations and believes the 
criteria,

[[Page 88960]]

particularly for a timeline and budget, hold States accountable for 
their financial capacity and technical expertise to develop an 
innovative assessment system. The commenter further encouraged the 
Department to provide sufficient notice of application requirements and 
selection criteria so that States can undergo extensive planning. 
Another commenter expressed general support for holding States to a 
high bar prior to awarding demonstration authority (including a 
rigorous evaluation and peer review of applications) and expressed 
strong support for the selection criteria, especially prior experience, 
capacity, and stakeholder support.
    Discussion: We share the commenters' views that States should be 
held to rigorous expectations in the development of a valid, reliable, 
and comparable innovative assessment system and that the requirements 
and selection criteria--which will be outlined in any future NIA--will 
both support States in planning and developing strong, thorough 
proposals, as well as the Department and peers in reviewing and 
approving applications that are likely to be successful.
    Changes: None.
    Comments: Due to the small scale nature of the pilot, the limited 
number of test items available, and the cost of developing innovative 
items, one commenter stated that testing irregularities and breaches of 
test security pose a greater risk to innovative assessment pilots, and 
requested additional emphasis on test security measures. The commenter 
suggested an additional selection criterion outlining an SEA's or 
consortium's plans for test security, including a description of the 
security measures used to protect test content and ensure test validity 
and reliability.
    Discussion: We appreciate the commenter's concern about the 
increased frequency of testing irregularities and security breaches. 
However, we do not believe it is necessary to add additional selection 
criterion for SEAs or consortia of SEAs with respect to test security 
measures. We believe that SEAs are aware of the test security risks, 
and will develop their implementation plans accordingly. In addition, 
SEAs are required to submit evidence of test security and monitoring 
practices, as described in the Department's current State assessment 
peer review guidance, to meet the requirements for State assessments in 
section 1111(b)(2)(B) of the ESEA. Because SEAs are aware that their 
innovative assessment systems will be subject to these requirements 
when transitioning to statewide use as described in new Sec.  200.107 
(proposed Sec.  200.79), we believe there is sufficient incentive in 
the regulations, as proposed, to develop an innovative assessment 
system that considers and accounts for test security and necessary 
protocols. We strongly encourage SEAs and consortia to consider these 
peer review criteria when developing their innovative assessments under 
the demonstration authority.
    Changes: None.
Prior Experience
    Comments: Several commenters expressed strong support for proposed 
Sec.  200.78(b)(1)(ii)(A), which creates a selection criterion for 
prior experience, and specifically any experience the SEA or its LEA 
has in developing or using effective supports and appropriate 
accommodations for administering innovative assessments to all 
students, including English learners and children with disabilities.
    Discussion: We appreciate the support of these commenters, and 
agree that an important criterion for evaluating the strength of an 
application from an SEA or consortium of SEAs, and its ability to 
effectively implement and scale up a high-quality innovative assessment 
system, will be ensuring that appropriate accommodations are provided 
on the assessments so that all students may participate.
    Changes: None.
    Comments: One commenter recommended we revise proposed Sec.  
200.78(b)(1)(ii)(C) to require independent reviewers to provide an 
unbiased judgment of the validity, reliability, and comparability of 
scoring rubrics.
    Discussion: We disagree that it is necessary to revise this 
selection criterion to provide for evaluation by an independent 
reviewer under new Sec.  200.106(b)(1)(ii)(C) (proposed Sec.  
200.78(b)(1)(ii)(C)). Because all of the information pertaining to each 
selection criterion is submitted as part of the SEA or consortium's 
application for the demonstration authority (see Sec.  200.105(c)) and 
because the application is subject to external peer review as part of 
the approval process (see Sec.  200.104(c)), the recommended addition 
of an independent review requirement in new Sec.  200.106(b)(1)(ii) is 
redundant. Any prior experience with developing or using scoring 
rubrics would be evaluated by independent, unbiased teams of external 
peer reviewers who will examine the evidence submitted by States that 
documents validity, reliability, and comparability of student 
determinations using standardized and calibrated scoring rubrics.
    Changes: None.
Supports for Educators
    Comments: Multiple commenters supported the proposed selection 
criterion in proposed Sec.  200.78(d), which provides for an SEA to 
describe available supports for educators to help them understand and 
become familiar with the innovative assessment system. Some of these 
commenters further requested that the selection criterion be revised to 
provide for SEAs to include in their applications a detailed 
professional development plan to support the implementation of the 
innovative assessment system. According to the commenters, this plan 
should address how the State will, among other things: Scale its system 
of professional development to more LEAs over time; provide sufficient 
time for teachers and school leaders to participate in professional 
development; partner with educator preparation programs to ensure pre-
service and in-service training is sufficiently preparing educators to 
implement and use data from the innovative assessment system to inform 
instruction; and use Federal funding under title II, and other public 
sources of funds, to provide supports for educators described in its 
plan. These commenters also suggested the Department issue additional 
non-regulatory guidance that could be beneficial to support effective 
professional development for educators as part of the demonstration 
authority. Similarly, other commenters requested that the Department 
add a requirement that SEAs include a description of the State's 
efforts to increase teacher and principal assessment literacy and 
provide incentives to teachers participating in professional 
development on the innovative assessment system.
    Discussion: We appreciate the feedback on ways to clarify and 
strengthen the supports an SEA or consortium must provide to educators 
who will be implementing the innovative assessment demonstration 
authority and agree that this will be a critical component in 
effectively scaling a State's innovative assessment system. As 
proposed, the selection criterion would allow States to provide this 
type of information. However, we are adding to new Sec.  200.106(d) 
(proposed Sec.  200.78(d)) to clarify that each SEA or consortium's 
application must include a plan for delivering supports to educators 
that can be consistently provided at scale, recognizing the commenter's 
suggestion that successful

[[Page 88961]]

implementation will require a comprehensive plan for professional 
development and that States consider whether their plan can feasibly be 
delivered in all LEAs during the demonstration authority period, even 
if only a few LEAs are initially participating. We also are adding to 
new Sec.  200.106(d)(1) to provide for applications to be evaluated on 
the extent to which an SEA or consortium's training for LEA and school 
staff will develop teacher capacity to provide instruction that is 
informed by the innovative assessment system and to use the results the 
system produces. Further, we are adding to new Sec.  200.106(d)(4) to 
provide for SEAs to describe their strategies to support teachers and 
staff in carrying out their responsibilities under the State's chosen 
innovative assessment model, which may include developing, designing, 
implementing, and ``validly and reliably'' scoring the assessment 
results. We also note that the information in each application under 
the selection criteria for timeline and budget and evaluation and 
continuous improvement described in new Sec.  200.106(c) and (e) 
(proposed Sec.  200.78(c) and (e)), respectively, will include how the 
SEA or consortium plans to fund and support any evaluation of its 
professional development plans and activities, so it is unnecessary to 
add these elements to the selection criterion in Sec.  200.106(d). 
Finally, we appreciate commenters' suggestions for additional non-
regulatory guidance in this area and will take them into consideration 
as the Department moves forward with implementation of the innovative 
assessment demonstration authority.
    Changes: We have added to the selection criterion in new Sec.  
200.106(d) to:
     Provide for each SEA or consortium's application to 
include a plan for delivering supports to educators that can be 
consistently provided at scale;
     Clarify that the SEA's or consortium's application will be 
evaluated on the extent to which training for LEA and school staff will 
develop teacher capacity to provide instruction that is informed by the 
innovative assessment system and to use the system's results; and
     Clarify that SEAs or consortia should describe strategies 
that will engage teachers and staff in carrying out their 
responsibilities under the State's chosen innovative assessment model, 
which may include ``designing'', ``implementing,'' and ``validly and 
reliably'' scoring the assessment results--not just in developing and 
scoring them, in general.
    Comments: One commenter objected to the reference in proposed Sec.  
200.78(d)(4) regarding teachers developing and scoring innovative 
assessments administered in their school. The commenter was concerned 
about potential conflicts of interest and the validity and reliability 
of the resulting scores if educators providing instruction are also 
developing and scoring the assessments for the students they teach. The 
commenter suggested revising Sec. Sec.  200.105 and 200.106 to restrict 
teacher involvement in item development and scoring.
    Discussion: We believe that teachers play a critical role in the 
development of assessments and should be involved throughout test 
development. This is true in all test development, but may be 
especially relevant with respect to innovative assessment systems, 
given changes in test design and delivery with an innovative assessment 
that may necessitate changes in instruction and additional or new 
responsibilities for educators. In addition, restricting teacher 
involvement in the development of the innovative assessment system or 
scoring such innovative assessments would place an additional 
restriction on the development of these assessments beyond what is 
required of State assessment systems in section 1111(b)(2) of the 
ESEA--the requirements these innovative assessment systems will need to 
meet in order to be used for statewide use at the end of the 
demonstration authority period.
    We agree, however, with the commenter that States should establish 
reasonable safeguards within their assessment systems, including any 
innovative assessment system. For example, teachers, in general, should 
not be permitted to score the assessments taken by students for which 
the teacher is considered the teacher of record or the assessments 
taken by students in a school in which the teacher is employed, as this 
could affect the reliability of the scores and create incentives for 
improper behavior given that the results will be used in the State's 
accountability system. We believe that States should have flexibility 
to design and develop a truly innovative assessment system and do not 
want to restrict innovation by placing extensive restrictions on the 
development and scoring of these new assessments. We do want to ensure 
that States are considering proper safeguards (e.g., quality control 
procedures, inter-rater reliability checks, audit plans) to avoid any 
conflicts, or the appearance of conflict, of interest and note that the 
innovative assessment system will undergo a peer review process prior 
to a State receiving demonstration authority and following the 
statewide transition of the innovative assessment system, and are 
clarifying final Sec.  200.106(d)(4) (proposed Sec.  200.78(d)(4)) to 
require States to describe in their applications any ``safeguards'' 
they are using when teachers are involved in developing or scoring 
assessments and how they are sufficient to ensure objective and 
unbiased scoring of innovative assessments. Further, the Department's 
external peer review of State assessment systems under title I, part A 
of the ESEA, which is based on the APA's Standards for Psychological 
and Educational Testing, includes specific criteria related to sections 
on the State's plans for scoring assessments and for demonstrating the 
reliability of the assessment scores. To meet these criteria, States 
need to ensure adequate training, calibration, and monitoring for all 
scoring conducted within their assessment system. We believe these 
criteria will serve to mitigate the commenter's concern.
    Changes: We have added language to new Sec.  200.106(d)(4) 
(proposed Sec.  200.78(d)(4)) to include both strategies and safeguards 
related to the development and scoring of innovative assessments by 
teachers and other school staff and to require States to describe in 
their applications how the strategies and safeguards are sufficient to 
ensure objective and unbiased scoring of innovative assessments.
    Comments: One commenter requested the inclusion of specialized 
instructional support personnel among the list of school staff in 
proposed Sec.  200.78(d) for which the SEA must demonstrate a plan for 
training and support, noting the important role that specialized 
instructional support personnel, such as audiologists and speech-
language pathologists, play in providing curriculum and instructional 
supports for students.
    Discussion: The selection criterion in new Sec.  200.106(d) 
(proposed Sec.  200.78(d)) is intended to ensure that States applying 
for demonstration authority have carefully considered how they will 
support LEA and school staff in participating schools during 
implementation of the innovative assessment system. While the proposed 
regulations specifically mention that these staff must include 
``teachers, principals, and other school leaders,'' an SEA could 
certainly respond to this selection criterion by including other LEA 
and school staff, including specialized instructional support

[[Page 88962]]

personnel, paraprofessionals, and district administrators, in their 
plans to support LEA and school personnel in effective implementation--
which could likely improve the strength of the SEA's application in 
this area as it is evaluated by peers. However, we decline to modify 
the selection criterion to specifically list examples of other LEA and 
school staff, as enumerating ``teachers, principals, and other school 
leaders'' is more consistent with the statutory requirements for 
demonstration authority, which only reference teachers, principals, and 
other school leaders.\5\
---------------------------------------------------------------------------

    \5\ For example, see the following sections of the ESEA: Section 
1204(c)(2)(A)(i)-(ii); section 1204(e)(2)(A)(v)(II), (vii), and 
(viii); section 1204(e)(2)(B)(v), (ix), and (x)(III); and section 
1204(j)(1)(B)(iv).
---------------------------------------------------------------------------

    Changes: None.
Supports for Parents
    Comments: Several commenters supported the selection criterion in 
proposed Sec.  200.78(d) providing for States to detail their 
strategies to support students in the transition to a new innovative 
assessment system, believing that these strategies will be critical to 
ensure a successful transition to a new assessment system. One 
commenter recommended that the final regulations also require States to 
describe strategies to acquaint parents with the innovative assessment 
system, including additional expectations for SEAs and consortia to 
describe plans to better communicate and explain assessment results to 
parents and families of students in participating LEAs and schools so 
that they, too, can play a critical role in using those results to 
improve academic outcomes for their children.
    Discussion: We agree with commenters and appreciate the support for 
including a selection criterion related to supports for students that 
will familiarize them with the innovative assessment system. We further 
agree that States, in order to effectively implement and scale their 
innovative assessment systems, will need strategies to familiarize 
parents and families with the new assessments. We are revising the 
regulations in new Sec.  200.106 to this effect in order to reinforce 
requirements elsewhere in the regulations for collaborating with 
parents in the development of the innovative assessment system, 
soliciting their feedback and input regularly on implementation, and 
providing annual information to parents about the innovative 
assessments and the results for their children, as required in other 
sections of the regulations.
    Changes: We have added to the introductory paragraph of new Sec.  
200.106(d) (proposed Sec.  200.78) to include references to supports 
for parents, in addition to educators and students, and Sec.  
200.106(d)(2) to provide for States to describe their strategies to 
familiarize parents, as well as students, with the innovative 
assessment system.

200.107 Transition to Statewide Use

General
    Comments: One commenter stated that the requirement for a full, 
statewide transition at the end of the pilot makes assumptions about 
the finality and success of the pilot.
    Discussion: The Department appreciates the concern about the 
requirement for transition to statewide use. However, the Department 
disagrees that such a requirement presumes that statewide 
implementation of the innovative assessment system will be successful. 
The requirements of new Sec.  200.105 (proposed Sec.  200.77) must be 
met in order for a State to implement the innovative assessment 
statewide. The Department is establishing these requirements in part to 
ensure a higher likelihood of successful implementation, but the 
Department does not believe that success is a forgone conclusion.
    The regulations in new Sec.  200.107(a) and (b) (proposed Sec.  
200.79(a) and (b)) represent another significant set of criteria that 
the innovative assessment must meet in order to achieve acceptance as a 
statewide assessment. Additionally, new Sec.  200.108 (proposed Sec.  
200.80) provides that the Department may withdraw the innovative 
assessment authority from a State when it cannot produce a high-quality 
plan for transition or evidence that the innovative assessment systems 
meets specific conditions. Given these provisions, we disagree that 
these regulations collectively presume that an innovative assessment 
system which achieves statewide implementation status will 
automatically be deemed final or successful.
    Changes: None.
    Comments: One commenter suggested that the Department include 
additional steps in the transition to statewide use of the innovative 
assessment to strengthen the transparency and ensure the quality of the 
system to be implemented. First, the commenter suggested that an SEA be 
required to affirmatively notify the Secretary and the LEAs in the 
State of its intention to move forward with the innovative assessment, 
replacing the statewide assessment. Second, the commenter recommended 
that the State receive validation that the innovative assessment meets 
peer review before the State makes the transition, instead of after, as 
in proposed Sec.  200.79(a)(1).
    Discussion: The Department appreciates the concerns voiced by this 
commenter. The Department believes that the requirements in new 
Sec. Sec.  200.105 and 200.106 (proposed Sec. Sec.  200.77 and 200.78) 
collectively address the concerns of the commenter regarding LEA 
notification and transparency. The application requirements in new 
Sec.  200.105(d)(3), requiring an annual update on the SEA's progress 
in scaling the innovative assessment system statewide, are sufficient 
to ensure that the Secretary will be notified when the State begins 
implementing the innovative assessment system statewide. Specifically, 
the annual report must include a timeline for and an update on progress 
toward full statewide implementation of the innovative assessment 
system. In addition, consistent with final Sec. Sec.  200.105(d)(3) and 
200.106(e), the annual report must include the results of the 
comparability determination required under final Sec.  200.105(b)(4).
    Finally, the requirements for peer review of the innovative 
assessment system in new Sec.  200.107(a)(1) (proposed Sec.  
200.79(a)(1)) that is required for transitioning out of the 
demonstration authority are the same requirements for peer review that 
apply to all statewide assessments used to meet the requirements under 
title I, part A, that is, the peer review is conducted after the first 
administration of a new statewide assessment, which ensures that all 
necessary evidence will be available for submission to the Department.
    Changes: None.
    Comments: One commenter asked the Department to provide greater 
clarity on what steps the State will need to take if the innovative 
assessment system does not meet the requirements of proposed Sec.  
200.79(b). That section outlines the requirements the assessment system 
must meet before it can be used for purposes of both academic 
assessments and accountability under section 1111 of the ESEA. The 
commenter recommended that in such situations, a State be granted an 
extension under proposed Sec.  200.80 or be required to return 
immediately to the previous statewide academic assessment.
    Discussion: The Department agrees that States need to follow a 
clearly defined process in the event that the innovative assessment 
system does not meet the requirements of new Sec.  200.107(b) (proposed 
Sec.  200.79(b)). The Department believes, however, that the

[[Page 88963]]

regulations in new Sec.  200.108(a)-(b) (proposed Sec.  200.80(a)-(b)) 
provide such a clearly defined process both in the case of granting an 
extension, and for a withdrawal and return to a statewide assessment, 
and declines to make further changes.
    Changes: None.
Flexibility in Scaling Statewide
    Comments: Multiple commenters requested that States be permitted to 
administer multiple assessments as part of the innovative assessment 
system. Commenters recommended that States should not be required to 
scale a single innovative assessment.
    Discussion: The Department believes that the intent of the statute 
is to provide States the ability to implement an innovative assessment 
system as defined in final Sec.  200.104(b)(3) (proposed Sec.  
200.76(b)(2)). States have broad flexibility to develop and design 
their system within the parameters of this definition, which allows for 
multiple assessments to be given in a single grade, including 
performance tasks, instructionally embedded assessments, and interim 
assessments.
    Changes: None.
    Comments: One commenter requested that States receive flexibility 
such that at the end of the innovative assessment demonstration 
authority, once the innovative assessment system has been successfully 
piloted, peer reviewed, and approved, the State could keep both its 
statewide assessment system and its innovative assessment system and 
allow LEAs to choose one for purposes of accountability and reporting.
    Discussion: The purpose of innovative assessment demonstration 
authority under section 1204 of the ESEA is to provide States the 
flexibility to pilot an innovative assessment system with the purpose 
of scaling the innovative assessment system to statewide use. Once the 
State transitions to statewide use, the innovative assessment system 
must meet the requirements of section 1111(b)(2) of the ESEA. Under 
section 1111(b)(2)(B), a State must use the same academic assessment 
system to measure the achievement of all students and evaluate their 
achievement against the same challenging State academic achievement 
standards. To meet the requirement under section 1111(b)(2)(B), the 
State must select either its statewide assessment system or the 
innovative assessment system; it cannot offer a choice to LEAs. 
Finally, we note that section 1204(i) of the ESEA grants the Secretary 
authority to withdraw demonstration authority if the State cannot 
provide a high-quality plan for transition to full statewide use of the 
innovative assessment system. Thus, we believe allowing States to offer 
a choice to LEAs would be inconsistent with this statutory provision as 
well.
    Changes: None.
Evaluation of Demonstration Authority
    Comments: One commenter expressed concern about how the proposed 
regulations define a baseline year for purposes of evaluating the 
innovative assessment system. Since States may pilot their innovative 
assessment systems prior to receiving demonstration authority, the 
first year of innovative demonstration authority may not be the first 
year the test is administered, but may be the first year the test is 
administered for accountability purposes.
    Discussion: The Department appreciates the commenter's request for 
clarification. We are adding to new Sec.  200.107(c) (proposed Sec.  
200.79(c)) to clarify that the baseline year for an evaluation of the 
innovative assessment system is the first year the innovative 
assessment system is administered in an LEA under the demonstration 
authority.
    Changes: We have added to Sec.  200.107(c) to clarify that the 
baseline year is the first year the innovative assessment system is 
administered in an LEA under the demonstration authority.
    Comments: Several commenters supported proposed Sec.  200.79(b)(2), 
which would require that the SEA evaluate the statistical relationship 
between student performance on the innovative assessment and other 
measures of success. The commenters proposed a clarification to allow 
for the Department, peer reviewers, and States to take into account 
measures other than student performance. They strongly encouraged the 
Department to clarify that student performance should not be the only 
criterion used to determine that the innovative assessment system is of 
high quality, can replace the statewide assessments, and can be used 
for both accountability and reporting.
    Discussion: The Department appreciates the commenters' concerns. 
The requirement to provide evidence of the statistical relationship 
between student performance on the innovative assessment and student 
performance on other measures of success is just one requirement in 
final Sec.  200.107 (proposed Sec.  200.79) for States to demonstrate 
that their innovative assessments are of ``high quality'' and may be 
used for purposes of State assessments and accountability under section 
1111 of the ESEA. The relationship of student performance on the 
innovative assessment for each grade and subject to other measures must 
consider the relationship between the innovative assessment and the 
measures used in the remaining accountability indicators that do not 
rely on data from the State's academic content assessments (e.g., the 
Graduation Rate indicator, Progress in Achieving English Language 
Proficiency indicator, a School Quality or Student Success indicator), 
and may also examine the relationship of student performance on the 
innovative assessment to student performance on other assessments like 
NAEP, TIMMS, or college entrance exams, or measures other than test 
scores like college enrollment rates or success in related entry-level, 
college credit-bearing courses. This analysis provides validity 
evidence and is considered in the Department's peer review of State 
assessments under section 1111(a)(4) of the ESEA, as well as final 
Sec.  200.107(b)(2). Additional evidence is required in peer review and 
will be considered in the determination that an innovative assessment 
system is of high quality. Since other measures would be included in 
peer review, as reflected in final Sec.  200.107, to evaluate whether 
an innovative assessment is of high quality, we do not believe it is 
necessary to clarify that measures other than student performance can 
be taken into account.
    Changes: None.

200.108 Extension, Waivers, and Withdrawal of Authority

Withdrawal of Authority
    Comments: One commenter urged the Department to clearly articulate 
the Secretary's ability to withdraw innovative assessment authority if 
a State cannot demonstrate comparability or sufficient quality in order 
to ensure the innovative assessment system is an objective measure of 
student performance.
    Discussion: Under section 1204 of the law, the Secretary must 
withdraw a State's authority to implement an innovative assessment 
system if, at any time during the initial demonstration period or an 
extension period, the State cannot meet certain requirements, including 
requirements pertaining to comparability to statewide assessments 
(section 1204(i)(5) of the ESEA) and system quality (section 
1204(j)(1)(A) of the ESEA).
    Changes: None.
Extension
    Comments: One commenter supported proposed Sec.  200.80(a)(1)(iii) 
requiring SEAs requesting an extension to address the capacity of all 
LEAs to full implement the innovative

[[Page 88964]]

assessment system by the end of the extension period.
    Discussion: The Department agrees with the commenter that SEAs must 
consider the readiness and capacity of all LEAs in planning for 
statewide implementation of the innovative assessment system. The 
regulations in this section help ensure that States are on track to 
implement the innovative assessment system statewide before receiving 
an extension.
    Changes: None.
Waivers
    Comments: Several commenters agreed with proposed Sec.  
200.80(c)(2), under which the Secretary may grant a one-year waiver to 
a State to delay withdrawal of the demonstration authority at the end 
of the extension period if a State's innovative assessment system has 
not yet met peer review requirements described in proposed Sec.  
200.79. One commenter supported the one-year cap on this waiver 
because, it asserted, States should not be given unlimited time to 
transition to statewide use of the innovative assessment system. 
Another commenter supported this requirement because it would ensure 
that States cannot operate two separate assessment systems for an 
extended period of time.
    Several commenters requested that the Department remove the 
provision in proposed Sec.  200.80(c)(2) because they opposed a one-
year limitation on such waivers and asserted that this timeline was 
inconsistent with section 1204(j)(3) of the ESEA, which provides the 
Secretary with the authority to grant a waiver to delay withdrawal of 
authority in order to provide the State the time necessary to fully 
implement the innovative assessment system statewide. Commenters 
asserted that the variation in structure, design, and complexity of 
innovative assessment systems requires flexibility for States, and that 
the Department should not apply a standard expectation to all States 
and innovative assessment systems.
    Discussion: We appreciate that innovative assessment systems will 
vary in complexity, and that some States may require more time than 
others to implement the innovative assessment system statewide. 
However, under the regulations, States have five years within the 
initial demonstration authority period to implement innovative 
assessments statewide. Then, States can request up to two years of 
extensions beyond that five year period. Given that States requesting 
the waiver would be in their eighth year of implementing the innovative 
assessments, we believe that a one-year limitation on the waiver is 
reasonable and appropriate to ensure that States move forward in 
implementing statewide assessment systems, consistent with the 
requirements of title I. The purpose of the innovative demonstration 
authority is to scale innovative assessments statewide, not to 
indefinitely allow States to administer two assessments. In the 
unlikely scenario that a State needs more than eight years to implement 
its innovative assessment system statewide, including having such a 
system peer reviewed, the Secretary maintains authority under section 
8401 of the ESEA to waive requirements of the ESEA.
    Changes: None.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, OMB must determine whether this 
regulatory action is significant and, therefore, subject to the 
requirements of the Executive order and to review by OMB. Section 3(f) 
of Executive Order 12866 defines a ``significant regulatory action'' as 
an action likely to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is significant and is 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 upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account, among other things and to the extent practicable, the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives such as user fees or 
marketable permits, to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from statutory 
requirements and those we have determined as necessary for 
administering the Department's programs and activities.
    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 discuss burdens 
associated with information collection requirements.

[[Page 88965]]

Need for Regulatory Action
    The Department believes that regulatory action is needed to ensure 
effective implementation of section 1204 of the ESEA, 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, and as 
discussed elsewhere in this document in response to concerns expressed 
by commenters that the regulations are overly prescriptive or might 
limit innovation, 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, 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.
Discussion of Potential Costs and Benefits
    The primary benefit of these regulations 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 an SEA, which may use funds received 
under the Grants for State Assessments and Related Activities program 
and funds reserved for State administration under part A of title I to 
participate in the demonstration authority. In addition, high-quality, 
innovative assessment models developed by participating SEAs under the 
demonstration authority can benefit other SEAs by providing examples of 
new assessment strategies for those SEAs to consider.
    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 final 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 did not provide estimates of the potential cost to implement 
innovative assessment demonstration authority for the typical SEA 
participant in the NPRM, stating that we believed such estimates would 
not be reliable or useful. We continue to believe that is the case, and 
note that we received no comments from SEAs providing specific 
anticipated costs that could inform our production of estimates.
    That said, we received several comments expressing general concern 
about the potential cost of implementing innovative assessment 
demonstration authority, including concerns about additional costs to 
SEAs of implementing innovative assessments while also administering 
current State assessments in non-participating LEAs. Although we 
appreciate these general concerns, we remind the commenters that 
participation in innovative assessment demonstration authority is 
voluntary and that no SEA is required to develop and implement 
innovative assessments under this authority. Moreover, an SEA that 
chooses to participate has considerable flexibility in determining the 
number, types, and breadth of innovative assessments to include in its 
system. In selecting its assessments, such an SEA should accordingly be 
mindful of development and implementation costs, including the extent 
to which those costs can be supported with Federal grant funds not 
needed for other assessment purposes.
Regulatory Flexibility Act Certification
    The Secretary certifies that these final requirements will 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 that receive ESEA funds 
qualify as small entities under this definition, these regulations will 
not have a significant economic impact on these small LEAs because few 
SEAs are expected to participate in this voluntary innovative 
assessment demonstration authority and the costs of participation will 
be borne largely by SEAs and can be supported with Federal grant funds. 
We believe the benefits provided under this regulatory action outweigh 
any associated costs for these small LEAs. In particular, the final 
regulations will help ensure that the LEAs can implement assessments 
that measure student mastery of challenging State academic standards 
more effectively and better inform classroom instruction and student 
supports, ultimately leading to improved academic outcomes for all 
students.
Paperwork Reduction Act of 1995
    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control numbers assigned to the 
collections of information in these final regulations at the end of the 
affected sections of the regulations.
    Sections 200.104(c), 200.105, and 200.106 of the final regulations 
contain information collection requirements. The Department will 
develop an Information Collection Request based upon these final 
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.
Intergovernmental Review
    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.
Assessment of Educational Impact
    In the NPRM we requested comments on whether the proposed 
regulations would require transmission of

[[Page 88966]]

information that any other agency or authority of the United States 
gathers or makes available.
    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, or 
electronic format) 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

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

    Dated: November 30, 2016.
 John B. King, Jr.,
Secretary of Education.

    For the reasons discussed in the preamble, the Department of 
Education amends part 200 of title 34 of the Code of Federal 
Regulations as follows:

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

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

    Authority: 20 U.S.C 6301-6576, unless otherwise noted.


0
 2. Add a new undesignated center heading following Sec.  200.103 to 
read as follows:

Innovative Assessment Demonstration Authority

0
 3. Add Sec.  200.104 to read as follows:


Sec.  200.104  Innovative assessment demonstration authority.

    (a) In general. (1) The Secretary may provide a State educational 
agency (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.  200.108(a) and (c), after which the Secretary will either approve 
the system for statewide use consistent with Sec.  200.107 or withdraw 
the authority consistent with Sec.  200.108(b).
    (b) Definitions. For purposes of Sec. Sec.  200.104 through 
200.108--
    (1) Affiliate member of a consortium means an SEA that is formally 
associated with a consortium of SEAs that is implementing the 
innovative assessment demonstration authority, but is not yet a full 
member of the consortium because it is not proposing to use the 
consortium's innovative assessment system under the demonstration 
authority, instead of, or in addition to, its statewide assessment 
under section 1111(b)(2) of the Elementary and Secondary Education Act 
of 1965, as amended by the Every Student Succeeds Act (hereinafter 
``the Act'') for purposes of accountability and reporting under 
sections 1111(c) and 1111(h) of the Act.
    (2) 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.  200.108. 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.
    (3) Innovative assessment system means a system of assessments, 
which may include any combination of general assessments or alternate 
assessments aligned with alternate academic achievement standards, in 
reading/language arts, mathematics, or science administered in at least 
one required grade under Sec.  200.5(a)(1) and section 1111(b)(2)(B)(v) 
of the Act that--
    (i) Produces--
    (A) An annual summative determination of each student's mastery of 
grade-level content standards aligned to the challenging State academic 
standards under section 1111(b)(1) of the Act; or
    (B) In the case of a student with the most significant cognitive 
disabilities assessed with an alternate assessment aligned with 
alternate academic achievement standards under section 1111(b)(1)(E) of 
the Act and aligned with the State's academic content standards for the 
grade in which the student is enrolled, an annual summative 
determination relative to such alternate academic achievement standards 
for each such student; and
    (ii) May, in any required grade or subject, include one or more of 
the following types of assessments:
    (A) Cumulative year-end assessments.
    (B) Competency-based assessments.
    (C) Instructionally embedded assessments.
    (D) Interim assessments.
    (E) Performance-based assessments.
    (F) Another innovative assessment design that meets the 
requirements under Sec.  200.105(b).
    (4) Participating LEA means a local educational agency (LEA) in the 
State with at least one school participating in the innovative 
assessment demonstration authority.
    (5) Participating school means a public school in the State in 
which the innovative assessment system is administered under the 
innovative assessment demonstration authority instead of, or in 
addition to, the statewide assessment under section 1111(b)(2) of the 
Act and where the results of the school's students on the innovative 
assessment system are used by its State and LEA for purposes of 
accountability and reporting under section 1111(c) and 1111(h) of the 
Act.
    (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.  200.105 and that addresses all selection criteria under Sec.  
200.106.
    (2) The Secretary uses a peer review process, including a review of 
the SEA's application to determine that it meets or will meet each of 
the requirements under Sec.  200.105 and sufficiently addresses each of 
the selection criteria

[[Page 88967]]

under Sec.  200.106, 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 described in 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.  200.106, 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.  200.106; 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.  200.106, the Secretary will evaluate 
each criterion equally and, within each criterion, each factor equally.
    (d) Initial demonstration period. (1) The initial demonstration 
period is the first three years in which the Secretary awards at least 
one SEA, or consortium of SEAs, 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 an affiliate member of a consortium is not 
included in the application under paragraph (c) of this section or 
counted toward the limitation in consortia size under paragraph 
(d)(1)(ii) of this section.

(Authority: 20 U.S.C. 1221e-3, 3474, 6364, 6571)



0
 4. Add Sec.  200.105 to read as follows:


Sec.  200.105  Demonstration authority application requirements.

    An SEA or consortium of SEAs seeking the innovative assessment 
demonstration authority must submit to the Secretary, at such time and 
in such manner as the Secretary may reasonably require, an application 
that includes the following:
    (a) Consultation. Evidence that the SEA or consortium has developed 
an innovative assessment system in collaboration with--
    (1) Experts in the planning, development, implementation, and 
evaluation of innovative assessment systems, which may include external 
partners; 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 described in section 
1111(c)(2) of the Act;
    (ii) Teachers, principals, and other school leaders;
    (iii) LEAs;
    (iv) Representatives of Indian tribes located in the State;
    (v) Students and parents, including parents of children described 
in paragraph (a)(2)(i) of this section; and
    (vi) 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 described in Sec.  200.104(b)(2) or 
extension period described in Sec.  200.108 and prior to statewide use 
consistent with Sec.  200.107, if the innovative assessment system will 
be administered initially to all students in participating schools 
within a participating LEA, provided that the statewide academic 
assessments under Sec.  200.2(a)(1) and section 1111(b)(2) of the Act 
are administered to all students in any non-participating LEA or any 
non-participating school within a participating LEA; 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 Sec.  200.2(a)(1) and section 1111(b)(2) of 
the Act are administered in any required grade and subject under Sec.  
200.5(a)(1) in which the SEA does not choose to implement an innovative 
assessment;
    (2)(i) Align with the challenging State academic content standards 
under section 1111(b)(1) of the Act, including the depth and breadth of 
such standards, for the grade in which a student is enrolled; and
    (ii) May measure a student's academic proficiency and growth using 
items above or below the student's grade level so long as, for purposes 
of meeting the requirements for reporting and school accountability 
under sections 1111(c) and 1111(h) of the Act and paragraphs (b)(3) and 
(b)(7)-(9) of this section, the State measures each student's academic 
proficiency based on the challenging State academic standards for the 
grade in which the student is enrolled;
    (3) Express student results or competencies consistent with the 
challenging State 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)(i) Generate results, including annual summative determinations 
as defined in paragraph (b)(7) of this section, that are valid, 
reliable, and comparable for all students and for each subgroup of 
students described in Sec.  200.2(b)(11)(i)(A)-(I) and sections 
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act, to the results 
generated by the State academic assessments described in Sec.  
200.2(a)(1) and section 1111(b)(2) of the Act for such students. 
Consistent with the SEA's or consortium's evaluation plan under Sec.  
200.106(e), the SEA must plan to annually determine comparability 
during each year of its demonstration authority period in one of the 
following ways:
    (A) Administering full assessments from both the innovative and 
statewide assessment systems to all students enrolled in participating 
schools, such that at least once in any grade span (i.e., 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 determination, the innovative 
assessment and statewide assessment need not be administered to an 
individual student in the same school year.
    (B) Administering full assessments from both the innovative and 
statewide assessment systems to a demographically representative sample 
of all students and subgroups of students described in section 
1111(c)(2) of the Act, from among those students enrolled in 
participating schools, such that at least once in any grade span (i.e., 
3-5, 6-8, or 9-12) and subject for which

[[Page 88968]]

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.
    (C) Including, as a significant portion of the innovative 
assessment system in each required grade and subject in which both an 
innovative and statewide assessment are administered, items or 
performance tasks from the statewide assessment system that, at a 
minimum, have been previously pilot tested or field tested for use in 
the statewide assessment system.
    (D) Including, as a significant portion of the statewide assessment 
system in each required grade and subject in which both an innovative 
and statewide assessment are administered, items or performance tasks 
from the innovative assessment system that, at a minimum, have been 
previously pilot tested or field tested for use in the innovative 
assessment system.
    (E) 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 statewide assessment, including for each 
subgroup of students described in Sec.  200.2(b)(11)(i)(A)-(I) and 
sections 1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act; and
    (ii) Generate results, including annual summative determinations as 
defined in paragraph (b)(7) of this section, that are valid, reliable, 
and comparable, for all students and for each subgroup of students 
described in Sec.  200.2(b)(11)(i)(A)-(I) and sections 
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act, among participating 
schools and LEAs in the innovative assessment demonstration authority. 
Consistent with the SEA's or consortium's evaluation plan under Sec.  
200.106(e), the SEA must plan to annually determine comparability 
during each year of its demonstration authority period;
    (5)(i) Provide for the participation of all students, including 
children with disabilities and English learners;
    (ii) Be accessible to all students by incorporating the principles 
of universal design for learning, to the extent practicable, consistent 
with Sec.  200.2(b)(2)(ii); and
    (iii) Provide appropriate accommodations consistent with Sec.  
200.6(b) and (f)(1)(i) and section 1111(b)(2)(B)(vii) of the Act;
    (6) For purposes of the State accountability system consistent with 
section 1111(c)(4)(E) of the Act, annually measure in each 
participating school progress on the Academic Achievement indicator 
under section 1111(c)(4)(B) of the Act of at least 95 percent of all 
students, and 95 percent of students in each subgroup of students 
described in 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 of achievement, 
using the annual data from the innovative assessment, for each student 
in a participating school in the demonstration authority that 
describes--
    (i) The student's mastery of the challenging State academic 
standards under section 1111(b)(1) of the Act for the grade in which 
the student is enrolled; or
    (ii) In the case of a student with the most significant cognitive 
disabilities assessed with an alternate assessment aligned with 
alternate academic achievement standards under section 1111(b)(1)(E) of 
the Act, the student's mastery of those standards;
    (8) Provide disaggregated results by each subgroup of students 
described in Sec.  200.2(b)(11)(i)(A)-(I) and sections 
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act, including timely 
data for teachers, principals and other school leaders, students, and 
parents consistent with Sec.  200.8 and section 1111(b)(2)(B)(x) and 
(xii) and section 1111(h) of the Act, and provide results to parents in 
a manner consistent with paragraph (b)(4)(i) of this section and Sec.  
200.2(e); and
    (9) Provide an unbiased, rational, and consistent determination of 
progress toward the State's long-term goals for academic achievement 
under section 1111(c)(4)(A) of the Act for all students and each 
subgroup of students described in 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) 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 sections 1003 and 1111(c) and (d) 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 under section 1111(c)(4)(D) of the 
Act; 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.  200.106.
    (d) Assurances. Assurances that the SEA, or each SEA in a 
consortium, will--
    (1) Continue use of the statewide academic assessments in reading/
language arts, mathematics, and science required under Sec.  
200.2(a)(1) and section 1111(b)(2) of the Act--
    (i) In all non-participating schools; and
    (ii) In all participating schools 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.  200.106(e) during the demonstration authority period;
    (2) Ensure that all students and each subgroup of students 
described in section 1111(c)(2) of the Act in participating schools are 
held to the same challenging State 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 with alternate academic achievement 
standards consistent with Sec.  200.6 and section 1111(b)(1)(E) and 
(b)(2)(D) of the Act, and receive the instructional support needed to 
meet such standards;
    (3) Report the following annually to the Secretary, at such time 
and in such manner as the Secretary may reasonably require:
    (i) An update on implementation of the innovative assessment 
demonstration authority, including--
    (A) The SEA's progress against its timeline under Sec.  200.106(c) 
and any outcomes or results from its evaluation and continuous 
improvement process under Sec.  200.106(e); and
    (B) If the innovative assessment system is not yet implemented 
statewide consistent with Sec.  200.104(a)(2), a description of the 
SEA's progress in scaling up the system to additional LEAs or schools 
consistent with its strategies under Sec.  200.106(a)(3)(i), including 
updated assurances from participating LEAs consistent with paragraph 
(e)(2) of this section.
    (ii) The performance of students in participating schools at the 
State, LEA, and school level, for all students and disaggregated for 
each subgroup of students described in section 1111(c)(2) of the Act, 
on the innovative assessment, including academic achievement and 
participation data required to be reported consistent with

[[Page 88969]]

section 1111(h) of the Act, except that such data may not reveal any 
personally identifiable information.
    (iii) If the innovative assessment system is not yet implemented 
statewide, school demographic information, including enrollment and 
student achievement information, for the subgroups of students 
described in section 1111(c)(2) of the Act, among 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 
contributed 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.  
200.106(a)(3)(iii).
    (iv) Feedback from teachers, principals and other school leaders, 
and other stakeholders consulted under paragraph (a)(2) of this 
section, including parents and students, from participating schools and 
LEAs about their satisfaction with the innovative assessment system;
    (4) Ensure that each participating LEA informs parents of all 
students in participating schools about the innovative assessment, 
including the grades and subjects in which the innovative assessment 
will be administered, and, 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, 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.
    (e) Initial implementation in a subset of LEAs or schools. If the 
innovative assessment 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, for each year that 
the LEA is participating, that the LEA will comply with all 
requirements of this section.
    (f) Application from a consortium of SEAs. If an application for 
the innovative assessment demonstration authority is 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, 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 the innovative assessment 
demonstration authority consistent with the requirements and selection 
criteria in this section and Sec.  200.106.
    (2) While the terms of the association with affiliate members are 
defined by each consortium, consistent with Sec.  200.104(b)(1) and 
paragraph (f)(1)(i) of this section, for an affiliate member to become 
a full member of the consortium and to use the consortium's innovative 
assessment system under the demonstration authority, the consortium 
must submit a revised application to the Secretary for approval, 
consistent with the requirements of this section and Sec.  200.106 and 
subject to the limitation under Sec.  200.104(d).

(Authority: 20 U.S.C. 1221e-3, 3474, 6364, 6571; 29 U.S.C. 794; 42 
U.S.C. 2000d-1; 42 U.S.C. 12101; 42 U.S.C. 12102)


0
 5. Add Sec.  200.106 to read as follows:


Sec.  200.106  Demonstration authority selection criteria.

    The Secretary reviews an application by an SEA or consortium of 
SEAs seeking innovative assessment demonstration authority consistent 
with Sec.  200.104(c) based on the following selection criteria:
    (a) Project narrative. The quality of the SEA's or consortium's 
plan for implementing the 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 described in section 1111(c)(2) of the Act;
    (2) The plan the SEA or consortium, in consultation with any 
external partners, if applicable, has to--
    (i) Develop and use standardized and calibrated tools, rubrics, 
methods, or other strategies for scoring innovative assessments 
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 consistent with Sec.  200.105(b)(4)(ii), which may include 
evidence of inter-rater reliability; and
    (ii) Train evaluators to use such strategies, if applicable; 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 enrollment of subgroups of students 
described in section 1111(c)(2) of the

[[Page 88970]]

Act and student achievement. The plan must also include annual 
benchmarks toward achieving high-quality and consistent implementation 
across participating schools that are, as a group, demographically 
similar to the State as a whole during the demonstration authority 
period, using the demographics of initially participating schools 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 Sec.  200.6(b) and (f)(1)(i) and section 1111(b)(2)(B)(vii) 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 tools, rubrics, methods, or other 
strategies for scoring innovative assessments, with documented evidence 
of the validity, reliability, and comparability of annual summative 
determinations of achievement, consistent with Sec.  200.105(b)(4) and 
(7).
    (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:
    (i) Superintendents (or equivalent) of LEAs, including 
participating LEAs in the first year of the demonstration authority 
period.
    (ii) Presidents of local school boards (or equivalent, where 
applicable), including within participating LEAs in the first year of 
the demonstration authority.
    (iii) Local teacher organizations (including labor organizations, 
where applicable), including within participating LEAs 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 the 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 non-affiliate member SEA 
begins using the innovative assessment in the same school year 
consistent with Sec.  200.104(b)(2); 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 at the State or local level or 
additional commitments from non-public sources of funds.
    (d) Supports for educators, students, and parents. The quality of 
the SEA or consortium's plan to provide supports that can be delivered 
consistently at scale to educators, students, and parents 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 and develop 
teacher capacity to implement instruction that is informed by the 
innovative assessment system and its results;
    (2) The strategies the SEA or consortium has developed and will use 
to familiarize students and parents 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 Sec.  200.6(b) and (f)(1)(i) and section 
1111(b)(2)(B)(vii) 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 locally 
developed or locally scored, the strategies and safeguards (e.g., test 
blueprints, item and task specifications, rubrics, scoring tools, 
documentation of quality control procedures, inter-rater reliability 
checks, 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 designing, 
developing, implementing, and validly and reliably scoring high-quality 
assessments; how the safeguards are sufficient to ensure unbiased, 
objective scoring of assessment items; and how the SEA will use 
effective professional development to aid in these efforts.

[[Page 88971]]

    (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.  
200.105(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. 1221e-3, 3474, 6364, 6571)


0
 6. Add Sec.  200.107 to read as follows:


Sec.  200.107  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 and 
Sec.  200.2(d) to determine whether the system may be used for purposes 
of both academic assessments and the State accountability system under 
sections 1111(b)(2), (c), and (d) and 1003 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 and Sec.  
200.2(d), the Secretary determines that the innovative assessment 
system is of high quality if--
    (1) An innovative assessment developed in any grade or subject 
under Sec.  200.5(a)(1) and 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.  200.105(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)(ii)-(v) of the Act, and how the inclusion of the 
innovative assessment in its Academic Achievement indicator under 
section 1111(c)(4)(B)(i) of the Act affects the annual meaningful 
differentiation of schools under section 1111(c)(4)(C) of the Act;
    (3) The SEA has solicited information, consistent with the 
requirements under Sec.  200.105(d)(3)(iv), and taken into account 
feedback from teachers, principals, other school leaders, parents, and 
other stakeholders under Sec.  200.105(a)(2) 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 
described in section 1111(c)(2) of the Act, and that appropriate 
accommodations were provided consistent with Sec.  200.6(b) and 
(f)(1)(i) under section 1111(b)(2)(B)(vii) 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 described in 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 that a participating 
LEA in the State administered the innovative assessment system under 
the demonstration authority.
    (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. 1221e-3, 3474, 6311(a), 6364, 6571)


0
7. Add Sec.  200.108 to read as follows:


Sec.  200.108  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.  200.105 and the SEA continues to 
implement the plan described in its application in response to the 
selection criteria in Sec.  200.106 in all participating schools and 
LEAs;
    (ii) A high-quality plan, including input from stakeholders under 
Sec.  200.105(a)(2), 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.  200.105(a)(2), 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.  200.105, including a demonstration that the innovative assessment 
system has met the requirements under Sec.  200.105(b);

[[Page 88972]]

    (B) The SEA continues to implement the plan described in its 
application in response to the selection criteria in Sec.  200.106;
    (C) The innovative assessment system includes and is used to assess 
all students attending participating schools 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 described in section 1111(c)(2) of the 
Act, and for appropriate accommodations consistent with Sec.  200.6(b) 
and (f)(1)(i) and section 1111(b)(2)(B)(vii) of the Act;
    (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 for academic 
achievement under section 1111(c)(4)(A) of the Act for all students and 
subgroups of students described in 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; 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.  
200.105 and 200.106.
    (c) Waiver authority. (1) At the end of the extension period, an 
SEA that is not yet approved consistent with Sec.  200.107 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.  200.107(b).
    (2) The Secretary may grant an SEA a one-year waiver to continue 
the 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.  200.105 and 200.106; and
    (ii) Has a high-quality plan, including input from stakeholders 
under Sec.  200.105(a)(2), for transition to statewide use of the 
innovative assessment system, including peer review consistent with 
Sec.  200.107, 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
    (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. 1221e-3, 3474, 6364, 6571)
[FR Doc. 2016-29126 Filed 12-7-16; 8:45 am]
 BILLING CODE 4000-01-P