Dated April 10, 2003

Mr. Lawrence C. Gloeckler

Deputy Commissioner

Office of Vocational and Educational Services for

Individuals with Disabilities

Room 1606 One Commerce Plaza

Albany, New York 12234

Dear Mr. Gloeckler:

Thank you for your letter requesting clarification on guidance provided
to the field regarding the administration of State and district-wide
assessments to students with disabilities and the role of the
Individualized Education Program (IEP) team relative to these
assessments. We agree with your point that the common understanding of
the terms 'accommodations' and 'modification' in the testing community
have evolved considerably since the enactment of the Individuals with
Disabilities Education Act Amendments of 1997. In light of that
developed understanding, you asked that we rescind prior Office of
Special Education and Rehabilitative Services' policy that a State may
not require that an IEP team only choose among modifications to the
administration of assessments that the State has determined will not
change the nature of the material being tested.

We agree that States must have the ability to ensure that State
assessments are valid, reliable, and consistent with professional and
technical standards, especially when the results will have critical
consequences for the student or the school. This is especially
important, given the emphasis under No Child Left Behind on
accountability for results. States should provide appropriate direction
to school districts and IEP teams on issues including the design and
constructs measured by various required tests. Depending on the
circumstances specific to the State, such direction may need to include
which test accommodations and modifications in administration are valid
and which accommodations and modifications in administration would
invalidate the assessment or part of the assessment.

Section 300.347(a)(5) of the regulations implementing the IDEA provides
that among other elements, a child's IEP must include:

> \(i\) A statement of any individual modifications in the
> administration of State or district-wide assessments of student
> achievement that are needed in order for the child to participate in
> the assessment; and
>
> \(ii\) If the IEP team determines that the child will not participate
> in a particular State or district-wide assessment of student
> achievement (or part of an assessment), a statement of ‑
>
> \(A\) Why that assessment is not appropriate for the child; and
>
> \(B\) How the child will be assessed.

The IDEA does not prohibit a State from determining what accommodations
and modifications in administration invalidate a test or a part thereof.
We believe that the language in 34 CFR 300.347 (a)(5)(i) can be
interpreted to mean that a child with a disability is not considered as
participating in an assessment, for purposes of the IDEA, if he or she
is given an accommodation or modification in administration that
invalidates the assessment. Where there are multiple parts or subparts
of a test, accommodations and modifications in administration could
invalidate some but not all of these test parts or subparts. For
example, reading the decoding section of a reading test to a student may
invalidate the score on that portion of the test, but may not invalidate
the score on other parts of the test. Thus, an IEP team could be
instructed to select only accommodations and modifications in
administration that the State has determined will not invalidate the
results of a particular test or portion of a test. The determination of
the accommodations and modifications in administration, if any, needed
by each individual child remains an IEP team decision. If an IEP team
were to determine that an accommodation or modification in
administration needed by a child would invalidate the test results, the
IEP team should determine how the child can appropriately be assessed,
such as through an alternate assessment.

Since States are responsible for ensuring that appropriate
accommodations and modifications in administration are provided, it is
critical to ensure that assessments offer a wide range of accommodations
and modifications in administration \-- all those that do not change the
nature of what is being assessed \-- so that all children with
disabilities for whom the regular assessment is appropriate are able to
participate in the assessment. The Title I regulations at 34 CFR
§200.2(b)(2) require that the State's assessment system must, "\[b\]e
designed to be valid and accessible for use by the widest possible range
of students, including students with disabilities and students with
limited English proficiency." States must identify ways of ensuring that
this requirement is met.

Some States may choose not to limit the IEP team's decisions regarding
which accommodations and modifications in administration are available
to students. In this case, it will be important that guidance on
accommodations and modifications in administration clearly inform IEP
teams regarding how scores will be reported and any consequences for
students or schools based on the teams' decisions. For example, if use
of a particular accommodation or modification in administration would
invalidate a child's score on part of a test, the child may receive a
score of zero for that portion of the test.

Pursuant to 20 U.S.C. 1406(e), this letter has been designated as
raising an issue of national significance to the implementation of Part
B of the IDEA. As a result, within one year, the Department will be
providing all States with additional written guidance as required by the
statute. This letter, while not legally binding, is informal guidance
representing the Department's interpretation of the relevant statutory
and regulatory requirements in the context of the facts raised herein.

I hope that this information is helpful. If you have any additional
questions, please feel free to contact Dr. JoLeta Reynolds at (202)
205-5507.

> Sincerely,
>
> /s/
>
> Robert H. Pasternack, Ph.D.