**NOTE: The official version of this document is the document published
in the [Federal Register]{.underline}. This document will be published
in the [Federal Register]{.underline} on April 9, 2007.**

4000-01-U

DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 300

RIN 1810-AA98

Title I---Improving the Academic Achievement of the Disadvantaged;
Individuals With Disabilities Education Act (IDEA)---Assistance to
States for the Education of Children With Disabilities

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

ACTION: Final regulations.

SUMMARY: The Secretary amends the regulations governing programs
administered under Title I of the Elementary and Secondary Education Act
of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001
(NCLB) (referred to in these regulations as the Title I program) and the
regulations governing programs under Part B of the Individuals with
Disabilities Education Act (IDEA) (referred to in these regulations as
the IDEA program). These regulations provide States with additional
flexibility regarding State, local educational agency (LEA), and school
accountability for the achievement of a small group of students with
disabilities whose progress is such that, even after receiving
appropriate instruction, including special education and related
services designed to address the students' individual needs, the
students' individualized education program (IEP) teams (IEP Teams) are
reasonably certain that the students will not achieve grade-level
proficiency within the year covered by the students' IEPs.

DATES: These regulations are effective (INSERT DATE 30 DAYS AFTER DATE
OF PUBLICATION IN THE FEDERAL REGISTER).

FOR FURTHER INFORMATION CONTACT: Regarding Part 200, Jacquelyn C.
Jackson, Ed.D., Director, Student Achievement and School Accountability
Programs, Office of Elementary and Secondary Education, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington, DC
20202-6132. Telephone: (202) 260-0826. Regarding Part 300, Alexa Posny,
Ph.D., Director, Office of Special Education Programs, Office of Special
Education and Rehabilitative Services, U.S. Department of Education,
Potomac Center Plaza, 550 12^th^ Street, SW., Washington, DC 20202-2641.
Telephone: (202) 245-7459, Ext. 3.

If you use a telecommunications device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative
format ([e.g.]{.underline}, Braille, large print, audiotape, or computer
diskette) on request to one of the contact persons listed in the
preceding paragraph.

SUPPLEMENTARY INFORMATION: These regulations amend regulations in 34 CFR
part 200, implementing certain provisions of Title I, Part A of the
ESEA, as amended by NCLB, which are designed to help disadvantaged
children meet high academic standards. They also amend regulations in 34
CFR part 300, implementing programs for students with disabilities under
Part B of the IDEA. On December 15, 2005, the Secretary published a
notice of proposed rulemaking (NPRM) for these programs in the [Federal
Register]{.underline} (70 FR 74624).

These regulations build upon flexibility that currently is available
under the Title I regulations in 34 CFR part 200 for measuring the
achievement of students with the most significant cognitive
disabilities. Those Title I regulations permit a State to develop
alternate academic achievement standards for students with the most
significant cognitive disabilities and to include those students'
proficient and advanced scores on alternate assessments based on
alternate academic achievement standards in measuring adequate yearly
progress (AYP), subject to a cap of 1.0 percent of all students assessed
at the State and district levels. Since those regulations were
published, the experiences of many States, as well as recent research,
indicate that in addition to students with the most significant
cognitive disabilities, there is a small group of students whose
disability has precluded them from achieving grade-level proficiency and
whose progress is such that they will not reach grade-level achievement
standards in the same time frame as other students. Currently, these
students must take either a grade-level assessment or an alternate
assessment based on alternate academic achievement standards. Neither of
these options provides an accurate assessment of what these students
know and can do. A grade-level assessment is too difficult and,
therefore, does not provide data about a student's abilities or
information that would be helpful to guide instruction. An alternate
assessment based on alternate academic achievement standards is too easy
and is not intended to assess a student's achievement across the full
range of grade-level content. Such an assessment, therefore, would not
provide teachers and parents with information to help these students
progress toward grade-level achievement.

These regulations permit States to develop an assessment that is
appropriately challenging for this group of students as part of their
State accountability and assessment systems under Title I of the ESEA,
as amended by NCLB. This assessment is based on modified academic
achievement standards that cover grade-level content. The requirement
that modified academic achievement standards be aligned with grade-level
content standards is important\--in order for these students to have an
opportunity to achieve at grade level, they must have access to, and
instruction in, grade-level content. The regulations include a number of
safeguards to ensure that students assessed based on modified academic
achievement standards have access to grade-level content so that they
can work toward grade-level achievement, such as the requirement that
their IEPs include goals that are based on grade-level content standards
and provide for monitoring of the students' progress in achieving those
goals. In addition to ensuring that students with disabilities are
appropriately assessed, these regulations also will give teachers and
schools credit for the work that they do with these students to help
them progress toward grade-level achievement.

[Major Concepts Regarding Modified Academic Achievement Standards in
these Regulations]{.underline}

[What are modified academic achievement standards?]{.underline} The NPRM
described modified academic achievement standards as academic
achievement standards aligned with grade-level content standards, but
modified in such a manner that they reflect reduced breadth or depth of
grade-level content. Based on the comments we received, it was clear
that this language was confusing and did not sufficiently convey our
intent that only the academic achievement standards for students are to
be modified, not the content standards on which those modified academic
achievement standards are based. The final regulations make clear that
modified academic achievement standards are challenging for eligible
students, but are a less rigorous expectation of mastery of grade-level
academic content standards. Notably, modified academic achievement
standards must be based on a State's grade-level academic content
standards for the grade in which an eligible student with disabilities
is enrolled. In other words, a State's academic content standards are
not what are modified. The expectations for whether a student has
mastered those standards, however, may be less difficult than
grade-level academic achievement standards.

The characteristics of modified academic achievement standards are the
same as those described in §200.1(c) of the Title I regulations for
grade-level academic achievement standards. That is, they must be
aligned with a State's academic content standards, describe at least
three levels of achievement, include descriptions of the competencies
associated with each achievement level, and include assessment scores
(cut scores) that differentiate among the achievement levels*.* A State
must provide a description of the rationale and procedures used to
determine each achievement level as part of the Department's peer review
of Statewide assessment systems under Title I of the ESEA.

[Which students with disabilities are eligible to be assessed based on
modified academic achievement standards?]{.underline} The final
regulations reflect our intent that students assessed based on modified
academic achievement standards are not limited to students with
disabilities achieving close to grade level, may be in any of the
disability categories listed in the IDEA, and may represent a wide
spectrum of abilities. The comments we received indicated that the
proposed requirement that a student receive direct instruction in
grade-level content in order to be eligible for an alternate assessment
based on modified academic achievement standards was mistakenly
understood to mean that only students achieving close to grade level
could be assessed based on modified academic achievement standards. That
was not our intent. We included this requirement because we believe that
all students with disabilities, including students assessed based on
modified academic achievement standards, should have access to
grade-level content. This is consistent with the provisions in the IDEA
that focus on ensuring that all students with disabilities have access
to the general curriculum ([See]{.underline}, e.g., section
614(d)(1)(A)(i)(II)(aa) and (IV)(bb).)

However, in order to clarify the policy and limit further
misunderstanding, we have removed the requirement that a student receive
direct instruction in grade-level content in order to be eligible for an
alternate assessment based on modified academic achievement standards
from the final regulations and replaced it with a requirement that if
the IEPs of these students include goals for a subject assessed under
§200.2, those goals must be based on grade-level content standards. We
believe this will help ensure that students have access to grade-level
content before they are assessed based on modified academic achievement
standards and that they receive instruction in grade-level content after
they are assessed based on modified academic achievement standards. Such
an approach focuses the IEP Team and the student on grade-level content
standards and on the student's current achievement relative to those
standards. We believe that instruction in grade-level content is
critical to ensure that students who participate in alternate
assessments based on modified academic achievement standards are
prepared to demonstrate their mastery of grade-level content and can
move closer to grade-level achievement. The final regulations
intentionally do not prescribe which students with disabilities are
eligible to be assessed based on modified academic achievement
standards; that is the determination of a student's IEP Team, which
includes the student's parents, based on criteria developed by the State
as part of the State's guidelines for IEP Teams. Those criteria must
include, but are not limited to, the following:

\(1\) There must be objective evidence demonstrating that the student's
disability has precluded the student from achieving grade-level
proficiency in the content area assessed. Such evidence may include the
student's performance on State assessments or other assessments that can
validly document academic achievement;

\(2\) The student's progress to date in response to appropriate
instruction, including special education and related services designed
to address the student's individual needs, is such that, even if
significant growth occurs, the IEP Team is reasonably certain that the
student will not achieve grade-level proficiency within the year covered
by the student's IEP. The IEP Team must use multiple valid measures of
the student's progress over time in making this determination; and

\(3\) If the student's IEP includes goals for a subject assessed under
§200.2, those goals must be based on the academic content standards for
the grade in which the student is enrolled.

In addition to requiring that the IEP of a student assessed based on
modified academic achievement standards include goals that are based on
academic content standards, the final regulations include safeguards to
ensure that a student assessed based on modified academic achievement
standards has the opportunity to learn grade-level content.
Specifically, the final regulations in §200.1(f)(2) require a State to
(a) establish and monitor implementation of clear and appropriate
guidelines for an IEP Team to apply in developing and implementing the
IEP of a student assessed based on modified academic achievement
standards; (b) ensure that a student who takes an alternate assessment
based on modified academic achievement standards has access to the
curriculum, including instruction, for the grade in which the student is
enrolled; and (c) ensure that a student who takes an alternate
assessment based on modified academic achievement standards is not
precluded from attempting to complete the requirements, as defined by
the State, for a regular high school diploma.

To help IEP Teams make appropriate decisions and ensure that students
are not inappropriately assessed based on modified academic achievement
standards, §200.1(f)(1)(iii) requires a State to provide IEP Teams with
a clear explanation of the differences between assessments based on
grade-level academic achievement standards and those based on modified
or alternate academic achievement standards (including any effects of
State and local policies on the student's education resulting from
taking an alternate assessment based on alternate or modified academic
achievement standards). Under §200.1(f)(1)(iv), a State also must ensure
that the parents of a student selected to be assessed based on alternate
or modified academic achievement standards are informed that their
child's achievement will be measured based on alternate or modified
academic achievement standards.

The assumption underlying these regulations is that many students
eligible to be assessed based on modified academic achievement standards
are in regular classrooms with children of the same chronological age
and are receiving instruction in grade-level curriculum; however,
because of these students' disabilities, their IEP Teams are reasonably
certain they will not achieve grade-level proficiency within the year
covered by their IEPs. In most schools, students assessed based on
modified academic achievement standards will represent a small portion
of students with disabilities. The final regulations in
§200.13(c)(2)(ii) provide that up to 2.0 percent (approximately 20
percent of students with disabilities) of the proficient and advanced
scores from alternate assessments based on modified academic achievement
standards may be included in calculating AYP.

[What assessments measure performance based on modified academic
achievement standards?]{.underline} Because a student eligible to be
assessed based on modified academic achievement standards must have
access to a curriculum based on the State's academic content standards
for the grade in which the student is enrolled, that student must be
assessed with a measure that is also based on those same grade-level
academic content standards, although the assessment may be less
difficult than the State's regular assessment. An out-of-level
assessment cannot be used as an alternate assessment based on modified
academic achievement standards because, by definition, an out-of-level
assessment does not cover the same content as an assessment based on
grade-level academic content standards.

The final regulations in §200.6(a)(3) make clear that a State may
develop a new alternate assessment based on modified academic
achievement standards or adapt its general assessment. Consistent with
§200.6(a)(3)(ii), an alternate assessment based on modified academic
achievement standards must cover the same grade-level content as the
regular assessment. Beyond this essential requirement, a State may
employ a variety of strategies to design an alternate assessment based
on modified academic achievement standards. For example, it might
replace the most difficult items on a State's general assessment with
simpler items while retaining coverage of the State's academic content
standards or modify the same items that appear on the grade-level
assessment by eliminating one of the incorrect answers in a multiple
choice test. Alternatively, a State might choose to develop a unique
assessment based on grade-level academic content standards that provides
flexibility in the presentation of test items, for example, by using
technology to allow students to access items via print, spoken, and
pictorial form. Or States may permit students to respond to test items
by dictating responses or using mathematics manipulatives to illustrate
conceptual or procedural knowledge. Regardless of whether a State
chooses to construct a unique assessment or to adapt its general
assessment, any alternate assessment based on modified academic
achievement standards must meet the requirements for high technical
quality set forth in §§200.2(b) and 200.3(a)(1) (including validity,
reliability, accessibility, objectivity, and consistency with nationally
recognized professional and technical standards) and be based on
modified academic achievement standards that have been developed through
a documented and validated standards-setting process that includes broad
stakeholder input, consistent with new §200.1(e)(1)(iv).

[Other Provisions Addressed in These Regulations]{.underline}

These regulations also finalize several other provisions under Title I
and the IDEA that were proposed in the NPRM, including the following:

[Minimum group size]{.underline}. The final Title I regulations in
§200.7(a)(2)(ii) prohibit a State, beginning in the 2007-08 school year,
from establishing a different minimum number (group size or "n size") of
students across the required AYP subgroups for purposes of calculating
AYP. This requirement applies to all States, not just those that choose
to develop and administer an alternate assessment based on modified
academic achievement standards.

[Multiple test administrations]{.underline}. With the removal of current
§200.20(c)(3), States will now be permitted to administer their State
assessments (including regular and alternate assessments) more than once
and include the student's best score in determining AYP.

[Guidelines for IEP Teams]{.underline}. Title I requires a State to
administer assessments that are valid and reliable for the purposes for
which they are used. Accordingly, students, including students with
disabilities, who are assessed with assessments that are not valid and
reliable are not "participants" for purposes of calculating
participation rates in determining AYP. The final IDEA regulations that
are included in these regulations provide that a State's (or in the case
of district-wide assessments, an LEA's) guidelines require each child to
be validly assessed and identify, for each assessment, any
accommodations that would result in an invalid score. Consistent with
Title I, a student with disabilities must receive a valid score in order
to be counted as a participant under the IDEA.

The final Title I regulations in §200.1(f) place responsibility on a
State to develop guidelines for IEP Teams and in new §200.20(c)(3) make
clear that, to count a student who is assessed based on alternate or
modified academic achievement standards as a participant for purposes of
meeting the 95 percent assessment participation requirement, a State
must have guidelines for IEP Teams to use to determine appropriately
which students should participate in alternate assessments based on
alternate or modified academic achievement standards that meet the
requirements of these regulations.

[Former students with disabilities]{.underline}. The final regulations
in §200.20(f)(2) provide additional flexibility in calculating AYP for
the students with disabilities subgroup. Under the final regulations, a
State may include, for a period of up to two years, the scores of
students who were previously identified with a disability under the IDEA
but who no longer receive special education services. A State, however,
would not be able to include the scores of former students with
disabilities as part of the students with disabilities subgroup in
reporting any other information (e.g., participation rates) under Title
I.

[Assessment of students with disabilities under the IDEA]{.underline}.
To ensure a coordinated administration of the IDEA and Title I programs,
the final IDEA regulations on assessment in §300.160, which are included
in this regulations package, incorporate provisions regarding modified
academic achievement standards that are consistent with the changes to
the regulations under Title I of the ESEA. In addition, the final IDEA
regulations provide that a State's (or in the case of a district-wide
assessment, an LEA's) guidelines must require each child to be validly
assessed and must identify, for each assessment, accommodations that
would result in an invalid score. Consistent with Title I, these final
regulations also provide in §300.160(f)(1) that a student taking an
assessment with an accommodation that invalidates the score would not be
reported as a participant under the IDEA. This coordination of the
regulations for the IDEA and Title I programs should avoid confusion
among parents, teachers, and administrators, and reinforce IDEA's and
Title I's shared goal of high expectations and accountability for all
students.

[Major Changes in the Regulations]{.underline}

The following is a summary of the major substantive changes in these
final regulations from the regulations proposed in the NRPM (the
rationale for each of these changes is discussed in the [Analysis of
Comments and Changes]{.underline} section elsewhere in this preamble).

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

[State Responsibilities for Developing Challenging Academic Standards
(§200.1(a))]{.underline}

-   Section 200.1(a)(1) and (a)(2) have been revised to clarify that the
    same academic content standards apply to all public schools and all
    public school students and that the authority to develop alternate
    and modified academic achievement standards for eligible students
    with disabilities does not apply to academic content standards.
    Proposed paragraph (b)(1)(i) is redundant with these changes and has
    been removed.

[Modified Academic Achievement Standards (§200.1(e))]{.underline}

-   Section 200.1(e)(1), which defines modified academic achievement
    standards for a State that chooses to develop such standards, has
    been revised as follows:

\(1\) Paragraph (e)(1) of §200.1, which permits a State to develop
modified academic achievement standards for students with disabilities,
has been changed by deleting the reference to a documented and validated
standards-setting process. The requirement for a State to use a
documented and validated standards-setting process has been clarified
and expanded in new §200.1(e)(1)(iv).

\(2\) Proposed paragraph (e)(1)(i) of §200.1, which requires modified
academic achievement standards to be aligned with a State's academic
content standards for the grade in which the student is enrolled, would
have permitted modified academic achievement standards to reflect
reduced breadth or depth of grade level content. The requirement has
been changed by deleting the reference to reduced breadth or depth.

\(3\) A new paragraph (e)(1)(ii) has been added to §200.1 to specify
that modified academic achievement standards must be challenging for
eligible students, but may be less difficult than grade-level academic
achievement standards.

\(4\) Proposed paragraph (e)(1)(ii) of §200.1, which would have required
modified academic achievement standards to provide access to grade-level
curriculum, has been removed. This requirement has been incorporated
into the requirements for State guidelines in new §200.1(f)(2)(iii). In
addition, we have clarified that grade-level curriculum includes
instruction.

\(5\) A new paragraph (e)(1)(iii) has been added to §200.1 indicating
that modified academic achievement standards, like grade-level academic
achievement standards, must include at least three achievement levels.

\(6\) Proposed paragraph (e)(1)(iii) of §200.1, which would have
required that modified academic achievement standards not preclude a
student from earning a high school diploma, has been removed. A similar
provision has been included in the requirements for State guidelines in
new §200.1(f)(2)(iv).

\(7\) A new §200.1(e)(1)(iv) has been added requiring modified academic
achievement standards to be developed through a documented and validated
standards-setting process that includes broad stakeholder input,
including persons knowledgeable about a State's academic content
standards and experienced in standards setting and special educators who
are most knowledgeable about children with disabilities.

-   Section 200.1(e)(2), regarding the criteria for IEP Teams to use in
    determining whether a student is eligible to be assessed based on
    modified academic achievement standards, has been revised to make
    the following changes:

\(1\) The introduction to §200.1(e)(2) has been changed to clarify that
a State may include criteria, in addition to those listed in paragraphs
(e)(2)(i) through (e)(2)(iii), for IEP Teams to use in determining
whether a student should be assessed based on modified academic
achievement standards.

\(2\) Paragraph (e)(2)(ii) of §200.1, regarding the guidelines that a
State must establish for IEP Teams, has been changed by (A) removing the
requirement that IEP Teams consider a student's progress in response to
high-quality instruction and replacing it with a requirement that IEP
Teams consider a student's progress to date in response to appropriate
instruction; and (B) removing the requirement that IEP Teams determine
that a student is not likely to achieve grade-level proficiency within
the year covered by the student's IEP, and replacing it with a
requirement that IEP Teams be reasonably certain that, even if
significant growth occurs, the student will not achieve grade-level
proficiency within the year covered by the student's IEP.

\(3\) A new paragraph (e)(2)(iii) has been added to §200.1 requiring
that if a student assessed based on modified academic achievement
standards has an IEP that includes goals for a subject assessed under
§200.2, those goals must be based on the academic content standards for
the grade in which the student is enrolled. Proposed §200.1(e)(2)(iii),
which would have required, as an eligibility condition, that a student
be receiving instruction in the grade-level curriculum for the subjects
in which the student is assessed, has been removed.

-   Proposed §200.1(e)(3), which would have permitted a student assessed
    based on modified academic achievement standards to be in any of the
    13 disability categories listed in the IDEA, has been removed. This
    provision has been incorporated into the requirements for State
    guidelines in new §200.1(f)(1)(ii).

-   Proposed §200.1(e)(4), which would have provided that a student
    could be assessed based on modified academic achievement standards
    in one or more subjects for which assessments are administered under
    Title I, has been removed. This provision has been revised and
    incorporated into the requirements for State guidelines in new
    §200.1(f)(1)(i)(B) (proposed §200.1(f)(1)(ii)).

-   Proposed §200.1(e)(5), which would have required the decision to
    assess a student based on modified academic achievement standards to
    be reviewed annually by a student's IEP Team, has been removed. This
    requirement has been revised and incorporated into the requirements
    for State guidelines in new §200.1(f)(2)(v).

[State Guidelines (§200.1(f))]{.underline}

-   Proposed §200.1(f), regarding the requirements for State guidelines,
    has been restructured into new paragraphs (f)(1) and (f)(2). New
    paragraph (f)(1) includes the requirements for State guidelines for
    students who are assessed based on either alternate or modified
    academic achievement standards. New paragraph (f)(2) includes
    additional requirements for State guidelines for students who are
    assessed based on modified academic achievement standards.

-   Proposed §200.1(f)(1), which would have required a State to
    establish and ensure implementation of clear and appropriate
    guidelines for IEP Teams to determine if students are to be assessed
    based on alternate or modified academic achievement standards, has
    been expanded to require a State to establish and monitor
    implementation of clear and appropriate guidelines for IEP Teams.
    Proposed §§200.1(f)(1) and 200.1(f)(1)(i) have been redesignated as
    new §§200.1(f)(1)(i) and 200.1(f)(1)(i)(A), respectively.

-   Proposed §200.1(f)(1)(ii), which requires a State to establish
    guidelines for IEP Teams to use in determining if students are to be
    assessed based on modified academic achievement standards, has been
    revised to clarify that students may be assessed based on modified
    academic achievement standards in one or more of the subjects tested
    under Title I. Proposed §200.1(f)(1)(ii) has been redesignated as
    new §200.1(f)(1)(i)(B).

-   A new §200.1(f)(1)(ii) has been added to require a State to inform
    IEP Teams that students eligible to be assessed based on alternate
    or modified academic achievement standards may be from any of the
    disability categories listed in the IDEA.

-   A new §200.1(f)(1)(iii) has been added to require a State to provide
    IEP Teams with a clear explanation of the differences between
    assessments based on grade-level academic achievement standards and
    those based on modified or alternate academic achievement standards,
    including any effects of State and local policies on a student's
    education resulting from taking an alternate assessment based on
    alternate or modified academic achievement standards (such as
    whether only satisfactory performance on a regular assessment would
    qualify a student for a regular high school diploma).

-   Proposed §200.1(f)(2), which would have required that parents of a
    student selected to be assessed based on alternate or modified
    academic achievement standards are informed that their child's
    achievement will be measured based on alternate or modified academic
    achievement standards, has been redesignated as §200.1(f)(1)(iv).

-   A new §200.1(f)(2), regarding requirements for State guidelines for
    a student who is assessed based on modified academic achievement
    standards, has been added and includes the following:

\(1\) New paragraph (f)(2)(i) in §200.1 requires a State to inform IEP
Teams that a student may be assessed based on modified academic
achievement standards in one or more subjects for which assessments are
administered under Title I.

\(2\) New paragraph (f)(2)(ii) in §200.1 requires a State to establish
and monitor the implementation of clear and appropriate guidelines for
an IEP Team to apply in developing and implementing an IEP for a student
who is assessed based on modified academic achievement standards. New
paragraph (f)(2)(ii)(A) and (B) requires that the IEP of a student
assessed based on modified academic achievement standards include IEP
goals that are based on the academic content standards for the grade in
which the student is enrolled, and be designed to monitor the student's
progress in achieving the student's standards-based goals.

\(3\) New paragraph (f)(2)(iii) in §200.1 requires a State to ensure
that a student who is assessed based on modified academic achievement
standards has access to the curriculum, including instruction, for the
grade in which the student is enrolled.

\(4\) New paragraph (f)(2)(iv) in §200.1 requires a State to ensure that
a student who takes an alternate assessment based on modified academic
achievement standards is not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.

\(5\) New paragraph (f)(2)(v) in §200.1 ensures that each IEP Team
reviews annually for each subject its decision to assess a student based
on modified academic achievement standards.

[Inclusion of All Students (§200.6)]{.underline}

-   Section 200.6(a)(1)(ii)(A) has been revised to clarify that a State
    must develop, disseminate information on, and promote the use of
    appropriate accommodations to increase the number of students who
    are tested against academic achievement standards for the grade in
    which a student is enrolled.

-   Section 200.6(a)(2)(iii), which requires a State to document that a
    student with the most significant cognitive disabilities is, to the
    maximum extent possible, included in the general curriculum, has
    been changed by deleting the word "maximum."

-   Section 200.6(a)(3), regarding alternate assessments based on
    modified academic achievement standards, has been revised as
    follows:

\(1\) The heading in §200.6(a)(3) has been changed to clarify that an
assessment based on modified academic achievement standards is an
"alternate" assessment.

\(2\) Section 200.6(a)(3) has been revised by removing the regulatory
references to grade-level assessments and alternate assessments.

\(3\) A new §200.6(a)(3)(i) has been added to clarify that a State may
develop a new alternate assessment or adapt a grade-level assessment to
assess a student based on modified academic achievement standards.

\(4\) A new §200.6(a)(3)(ii) has been added to include the requirements
for alternate assessments based on modified academic achievement
standards. Proposed §200.6(a)(3)(i) through (a)(3)(iv), which included
the requirements for alternate assessments based on modified academic
achievement standards, has been redesignated as new §200.6(a)(3)(ii)(A)
through (a)(3)(ii)(D).

-   Section 200.6(a)(4), regarding the reporting requirements under
    section 1111(h)(4) of Title I, has been changed by redesignating (A)
    proposed paragraph (a)(4)(iv), regarding alternate assessments based
    on grade-level academic achievement standards, as new paragraph
    (a)(4)(iii); and (B) proposed paragraph (a)(4)(iii), regarding
    alternate assessments based on modified academic achievement
    standards, as new paragraph (a)(4)(iv). In addition, "to the
    Secretary" has been added to the introductory sentence in
    §200.6(a)(4) to clarify to whom States must report the data
    collected under section 1111(h)(4) of the Act.

[Disaggregation of Data (§200.7)]{.underline}

-   Section 200.7(a)(ii), providing that a State may not establish a
    different minimum number of students for separate subgroups, has
    been revised by clarifying that this provision also applies to the
    school as a whole. In addition, the final regulations make clear
    that this provision takes effect for AYP determinations based on
    2007-08 assessment data.

[Making Adequate Yearly Progress (§200.20(f))]{.underline}

-   Proposed §200.20(f)(1), which permits a State to include, for a
    period of up to two years, the scores of students who were
    previously identified with a disability in AYP calculations, has
    been incorporated into current §200.20(f)(2), which codifies the
    final regulations on accountability for former limited English
    proficient (LEP) students published in the [Federal
    Register]{.underline} on September 13, 2006 (71 FR 54187).

-   Proposed §200.20(f)(2) has been changed to clarify that if a State
    includes the scores of former students with disabilities in
    calculating AYP, it must include the scores of all such students.
    Proposed §200.20(f)(2) has been incorporated into new
    §200.20(f)(2)(ii).

[Transition Provision regarding Modified Academic Achievement Standards
(§200.20(g))]{.underline}

-   A new §200.20(g) has been added to make explicit that the Secretary
    may provide States flexibility in accounting for the achievement of
    some students with disabilities in AYP determinations that are based
    on assessments administered in 2007-08 and 2008-09. States must
    demonstrate, for each year for which flexibility is available, that
    they are expeditiously moving to adopt and administer assessments
    based on modified academic achievement standards consistent with
    these regulations and meet other criteria, as the Secretary
    determines appropriate, in order to be considered for this
    flexibility.

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

[Participation in Assessments (§300.160)]{.underline}

-   Section 300.160(b)(2), regarding accommodation guidelines that a
    State must develop, has been revised to clarify that the State
    guidelines must (A) identify the accommodations for each assessment
    that do not invalidate the score; and (B) instruct IEP Teams to
    select, for each assessment, only those accommodations that do not
    invalidate the score.

-   Proposed §300.160(c), which would have required a State that has
    adopted modified academic achievement standards to have guidelines
    for the participation of students with disabilities in assessments
    based on those standards, has been removed. With the clarification
    in §200.6(a)(3) that assessments based on modified academic
    achievement standards are alternate assessments, proposed
    §300.160(c) is redundant with new §300.160(c) (proposed
    §300.160(d)).

-   Proposed §300.160(d)(1), which requires a State (or in the case of a
    district-wide assessment, an LEA) to develop and implement alternate
    assessments and guidelines for children who cannot participate in
    regular assessments, even with accommodations, has been redesignated
    as new §300.160(c)(1).

-   Proposed §300.160(d)(2)(ii), which would have required a State to
    measure the achievement of children based on alternate academic
    achievement standards if a State has adopted those standards, has
    been changed by replacing "alternate academic achievement standards"
    with "modified academic achievement standards," and clarifying that
    modified academic achievement standards are permitted for children
    who meet the State's criteria under §200.1(e)(2). Proposed
    §300.160(d)(2)(ii) has been redesignated as §300.160(c)(2)(ii).

-   A new §300.160(c)(2)(iii) has been added, providing that, if a State
    has adopted alternate academic achievement standards, the State must
    measure the achievement of children with the most significant
    cognitive disabilities against those standards.

-   A new paragraph (d) has been added, requiring a State to provide IEP
    Teams with a clear explanation of the differences between
    assessments based on grade-level academic achievement standards and
    those based on modified or alternate academic achievement standards,
    including any effects of State or local policies on the student's
    education resulting from taking an alternate assessment based on
    alternate or modified academic achievement standards (such as
    whether only satisfactory performance on a regular assessment would
    qualify a student for a regular high school diploma).

-   A new paragraph (e) has been added, requiring a State to ensure that
    parents of a student selected to be assessed based on alternate or
    modified academic achievement standards are informed that their
    child's achievement will be measured based on alternate or modified
    academic achievement standards.

-   Proposed §300.160(e), regarding reports on the assessment of
    students with disabilities, has been redesignated as §300.160(f) and
    changed as follows:

\(1\) Proposed paragraph (e)(1) in §300.160, which requires a State to
report on the number of children with disabilities participating in
regular assessments, and the number of those children who were provided
accommodations that did not result in an invalid score, has been
redesignated as §300.160(f)(1).

\(2\) Proposed paragraph (e)(2) in §300.160 has been redesignated as
§300.160(f)(2) and revised to require a State to report on the number of
children participating in alternate assessments based on grade-level
academic achievement standards.

\(3\) Proposed paragraph (e)(3) in §300.160, which requires a State to
report on the number of children with disabilities who are assessed
based on alternate academic achievement standards, has been changed to
require a State to report on the number of children with disabilities,
if any, who are assessed based on modified academic achievement
standards. The regulatory reference to alternate assessments based on
alternate academic achievement standards has been deleted and proposed
§300.160(e)(3) has been redesignated as §300.160(f)(3).

\(4\) Proposed paragraph (e)(4) in §300.160, which requires a State to
report on the number of children with disabilities who are assessed
based on modified academic achievement standards, has been changed to
require a State to report on the number of children with disabilities,
if any, who are assessed based on alternate academic achievement
standards. The regulatory reference to modified academic achievement
standards has been deleted and proposed §300.160(e)(4) has been
redesignated as §300.160(f)(4).

\(5\) Proposed paragraph (e)(5) in §300.160, which required a State to
report on the performance results of children with disabilities on
regular assessments and on alternate assessments, has been clarified by
specifically identifying alternate assessments based on grade-level
academic achievement standards; alternate assessments based on modified
academic achievement standards; and alternate assessments based on
alternate academic achievement standards. It also has been revised to
require that performance results for children with disabilities be
compared to the achievement of all students, including children with
disabilities. Proposed §300.160(e)(5) has been redesignated as
§300.160(f)(5).

-   Proposed §300.160(f), regarding universal design, has been
    redesignated as §300.160(g).

    [Analysis of Comments and Changes]{.underline}

In response to the Secretary's invitation in the NPRM, more than 300
parties submitted comments on the proposed regulations, many of which
were substantially similar. An analysis of the comments and changes in
the regulations since publication of the NPRM follows.

We discuss substantive issues under the sections of the regulations to
which they pertain. Generally, we do not address technical or minor
changes, and suggested changes that we are not authorized to make under
the law. We also do not address comments on Title I or IDEA regulations
that were not part of the NPRM published on December 15, 2005 (70 FR
74624), such as comments concerning the regulations regarding alternate
academic achievement standards.

# Interim Flexibility

[Comment]{.underline}: Several commenters made recommendations regarding
the Department's interim flexibility, which gave eligible States the
flexibility to provide credit to schools or districts that missed AYP
solely because of the achievement of the students with disabilities
subgroup. Some commenters opposed this flexibility; most others
suggested extending the flexibility until the final regulations on
modified academic achievement standards are in effect or until States
have had time to develop modified academic achievement standards and
aligned alternate assessments. One commenter recommended that the
interim flexibility be made permanent instead of the Department
regulating to permit States to establish modified academic achievement
standards. Finally, one commenter stated that offering interim
flexibility prior to rulemaking violated Title I negotiated rulemaking
requirements.

[Discussion]{.underline}: The Department permitted States that expressed
interest in developing modified academic achievement standards and
assessments based on those standards to take advantage of interim
flexibility while the Department drafted the proposed regulations. This
flexibility was granted for the 2004-05 school year and then extended
for a second year (2005-06) to cover the period of time when members of
the public were commenting on the proposed regulations and while the
Department developed the final regulations. The interim flexibility will
be extended for the 2006-07 school year for States that can show
evidence of a commitment to develop modified academic achievement
standards.

We believe that the flexibility to develop modified academic achievement
standards provides a means to assess appropriately some students with
disabilities and include them in State accountability systems.
Therefore, we do not believe the interim flexibility should be used in
lieu of setting modified academic achievement standards, as recommended
by one commenter.

We do not believe that offering interim flexibility prior to rulemaking
violated negotiated rulemaking requirements. We understand the statutory
requirements for negotiated rulemaking in section 1901 of the ESEA to
apply to Title I standards and assessment regulations required to be
implemented within one year of enactment of NCLB, not to subsequent
regulatory amendments such as those included in these regulations.

The Department recognizes that some States may need time beyond the
2006-07 school year to develop and implement alternate assessments based
on modified academic achievement standards. Therefore, we are adding a
new §200.20(g) providing that the Secretary may give flexibility for two
additional years (through the 2008-09 school year) to States that are
developing alternate assessments based on modified academic achievement
standards consistent with these regulations.

[Changes]{.underline}: We have added a new §200.20(g) specifying that
the Secretary may provide a State that is moving expeditiously to adopt
and administer alternate assessments based on modified academic
achievement standards flexibility in accounting for the achievement of
students with disabilities in AYP determinations that are based on
assessments administered in school years 2007-08 and 2008-09. To be
eligible for this flexibility, a State must meet criteria, as the
Secretary determines appropriate, for each year for which the
flexibility is available.

# State Responsibilities for Developing Challenging Academic Standards (§200.1)

[Comment]{.underline}: A few commenters recommended revising
§200.1(a)(1) to clarify when the regulation applies to academic content
standards versus academic achievement standards. The commenters noted
that the authority to develop modified and alternate academic
achievement standards appears erroneously also to apply to academic
content standards.

[Discussion]{.underline}: We agree that the regulation in §200.1(a)(1)
should be more specific when referring to academic standards. Therefore,
we have clarified that the same academic content standards apply to all
public schools and all public school students in a State and that the
authority to develop alternate academic achievement standards in
paragraph (d) and modified academic achievement standards in paragraph
(e) for eligible students with disabilities does not apply to academic
content standards. We also have modified paragraph (a)(2) to be
consistent with these changes. Section 200.1(b)(1)(i) is redundant with
these changes and has been removed.

[Changes]{.underline}: We have made the following changes in
§200.1(a)(1): (1) added "content and academic achievement" before
"standards"; and (2) added "which apply only to the State's academic
achievement standards" at the end of the sentence in paragraph (a)(1).
Consistent with these changes, we have revised paragraph (a)(2) to read,
"Include the same knowledge and skills expected of all students and the
same levels of achievement of all students, except as provided in
paragraphs (d) and (e) of this section." We have removed
§200.1(b)(1)(i).

# Modified Academic Achievement Standards (§200.1(e))

[Comment]{.underline}: Several commenters recommended that the
regulations provide more detail on the essential components of the
documented and validated standards-setting process required in
§200.1(e)(1). These commenters stated that the process should include
broad stakeholder input. One commenter requested that the regulations
require a State to explain to the public how it proposes to change its
content standards to coincide with modified academic achievement
standards. A few commenters requested that the regulations specify the
persons who should define the standards and participate in the
standards-setting process, and include information about how parents and
specialists should be involved.

[Discussion]{.underline}: We do not believe that it is necessary to
include the details of a validated standards-setting process in these
regulations because the field generally agrees that the process should
be consistent with the standards for educational and psychological
testing (1999).[^1] This process relies on both empirical data and the
informed judgments of persons familiar with academic content as well as
with the students with disabilities to be assessed. We agree with the
commenters that the development of achievement standards typically
benefits from broad stakeholder involvement to ensure consensus
regarding the knowledge and skills essential for all students and have
clarified this in the regulations. In response to the request to define
who should be involved in the standards-setting process for modified
academic achievement standards, we believe that the process should
include persons who are knowledgeable about the State's academic content
standards and experienced in standards setting, as well as special
educators who are most knowledgeable about the academic abilities and
achievement of students with disabilities, and we have added clarifying
language in the regulations. We decline to comment on how parents and
specialists should be involved in the process. These determinations are
best left to State and local officials.

With regard to the commenter who requested that the regulations require
a State to explain to the public how it proposes to change its content
standards to coincide with modified academic achievement standards, we
note that a State that intends to develop modified academic achievement
standards consistent with these regulations would not propose to change
its academic content standards. As required in §200.1(e)(1), modified
academic achievement standards must be aligned with the State's academic
content standards.

[Changes]{.underline}: We have removed the phrase "through a documented
and validated standards-setting process" in proposed §200.1(e)(1) and
have added a new §200.1(e)(1)(iv) to require that modified academic
achievement standards be developed through a documented and validated
standards-setting process that includes broad stakeholder input,
including persons knowledgeable about the State's academic content
standards and experienced in standards setting and special educators who
are most knowledgeable about children with disabilities.

[Comment]{.underline}: A number of commenters disagreed with the
requirement in §200.1(e)(1)(i) that modified academic achievement
standards be aligned with the State's academic content standards for the
grade in which the student is enrolled. Several commenters stated that
this requirement excludes students who need to be assessed against a
truly modified set of learning standards. These commenters argued that
modified academic achievement standards should be for students with
learning goals that are substantively different from the general
education standards, but not as different as the learning goals for
students with the most significant cognitive disabilities who are
assessed based on alternate academic achievement standards.

Several commenters stated that modified academic achievement standards
should focus on the individual needs of a student with disabilities and
be aligned with standards that are appropriate for the student's
instructional level, not grade level. A few commenters stated that the
criteria for modified academic achievement standards are too
prescriptive and that States should have the flexibility to develop
modified academic achievement standards in ways that meet their needs.

[Discussion]{.underline}: We disagree with the commenters. Modified
academic achievement standards are intended for a small group of
students who, by virtue of their disability, are not likely to meet
grade-level academic achievement standards in the year covered by their
IEPs even with appropriate instruction. These students need the benefit
of access to instruction in grade-level content so that they can move
closer to grade-level achievement. We believe that allowing modified
academic achievement standards to focus on something other than
grade-level content standards (e.g., allowing them to be based on a
student's instructional level) would lower expectations and limit
opportunities for these students to access grade-level content and meet
grade-level achievement standards. We also believe that allowing States
to develop modified academic achievement standards without placing any
parameters or restrictions on their use would likely result in lowered
expectations.

[Changes]{.underline}: None.

[Comment]{.underline}: Many commenters requested specific guidance on
how a State could appropriately reduce the breadth or depth of
grade-level standards, as proposed in §200.1(e)(1)(i). One commenter
requested that the regulations clarify that reducing breadth or depth
would permit the assessment of prerequisite skills that are needed to
master grade-level content standards.

[Discussion]{.underline}: Modified academic achievement standards are
intended to be challenging for a small group of students whose
disability has thus far prevented them from attaining grade-level
proficiency. However, while the modified academic achievement standards
may be less demanding than grade-level academic achievement standards,
these students must have access to a curriculum based on grade-level
content standards so that they can move closer to grade-level
achievement. This means that an alternate assessment based on modified
academic achievement standards must cover the same grade-level content,
but may include less difficult questions overall.

We agree that the phrase "breadth or depth" in the context of developing
modified academic achievement standards is not clear and does not
sufficiently convey that only the academic achievement standards for
students, not the content on which they are assessed, are to be
modified. In addition, the terms "breadth" and "depth" are descriptive,
rather than technical, and do not have consistent meanings for the
different stakeholders involved in developing and using student
assessments. Therefore, we have removed the reference to reduced breadth
or depth from §200.1(e)(1)(i). Section 200.1(e)(1)(i) continues to
require modified academic achievement standards to be aligned with the
State's academic content standards for the grade in which the student is
enrolled. We have added a new paragraph (e)(1)(ii) clarifying that
modified academic achievement standards must be challenging for eligible
students, but may be less difficult than grade-level academic
achievement standards. Consistent with section 1111(b)(1)(D)(i) of the
ESEA, we also have clarified that modified academic achievement
standards must include at least three achievement levels.

[Changes]{.underline}: The phrase "reflect reduced breadth or depth of
grade level content" has been removed from §200.1(e)(1)(i). A new
§200.1(e)(1)(ii) has been added specifying that modified academic
achievement standards must be challenging for eligible students, but may
be less difficult than grade-level academic achievement standards. We
also have added a new §200.1(e)(1)(iii) to require modified academic
achievement standards to include at least three achievement levels.

[Comment]{.underline}: One commenter stated that modified academic
achievement standards should be designed to allow a student, over time,
to reach grade-level academic achievement standards. Many commenters
stated that the regulations should include protections so that the
regulations do not result in lowered expectations for students with
disabilities.

[Discussion]{.underline}: We added a number of safeguards to the
safeguards that were already included in the proposed regulations to
ensure that a student with disabilities who is assessed based on
modified academic achievement standards has access to grade-level
content so that the student has the opportunity, over time, to reach
grade-level academic achievement standards. The safeguards for students
that are included in these final regulations include the following:
§200.1(e)(1)(i) requires that modified academic achievement standards be
aligned with a State's academic content standards for the grade in which
a student is enrolled; new §200.1(e)(2)(iii) requires that a student's
IEP include goals that are based on the academic content standards for
the grade in which the student is enrolled and be designed to monitor a
student's progress in achieving the student's standards-based goals; new
§200.1(f)(2)(ii) requires a State to establish and monitor
implementation of clear and appropriate guidelines for an IEP Team to
apply in developing and implementing the IEP of a student assessed based
on modified academic achievement standards; new §200.1(f)(2)(iii)
requires that a State's guidelines for IEP Teams ensure that a student
who is assessed based on modified academic achievement standards has
access to the curriculum, including instruction, for the grade in which
the student is enrolled; and new §200.1(f)(2)(iv) requires a State to
ensure that a student who takes an alternate assessment based on
modified academic achievement standards is not precluded from attempting
to complete the requirements, as defined by the State, for a regular
high school diploma.

[Changes]{.underline}: None.

[Comment]{.underline}: We received several comments regarding proposed
§200.1(e)(1)(iii), which requires that modified academic achievement
standards not preclude a student from earning a regular high school
diploma. Several commenters stated that it would be an intrusion into
State graduation standards if a State was required to diminish its
standards for a regular diploma to include students who are assessed on
modified academic achievement standards.

[Discussion]{.underline}: The intent of proposed §200.1(e)(1)(iii) was
not to require States to alter their graduation requirements or to
provide a regular high school diploma to a student who scores proficient
on an alternate assessment based on modified academic achievement
standards. Rather, we wanted to ensure that a student is not
automatically precluded from attempting to earn a regular high school
diploma simply because the student was assessed based on modified
academic achievement standards. For example, if a State requires
students to pass a State graduation test in order to obtain a regular
high school diploma, we did not want the fact that a student was
assessed based on modified academic achievement standards to
automatically prevent the student from attempting to pass the State's
graduation test.

An important requirement for modified academic achievement standards is
that they be aligned with the State's grade-level academic content
standards and provide access to grade-level curriculum. Therefore, we
believe it is reasonable that students assessed based on modified
academic achievement standards have the opportunity to attempt to earn a
regular high school diploma. We recognize that proposed
§200.1(e)(1)(iii) could be misconstrued and, therefore, have changed the
language to make clear that States may not prevent a student from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma simply because the student participates in
an alternate assessment based on modified academic achievement
standards.

[Changes]{.underline}: Proposed §200.1(e)(1)(iii) has been removed. A
new §200.1(f)(2)(iv) has been added to require a State to ensure that
students who take alternate assessments based on modified academic
achievement standards are not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.

[Comment]{.underline}: Many commenters requested additional guidance on
the development of modified academic achievement standards. A few
commenters requested guidance on addressing the technical issues
regarding the development of modified academic achievement standards.

[Discussion]{.underline}: The Department recognizes the need to provide
States with additional guidance on the development and implementation of
modified academic achievement standards and will provide nonregulatory
guidance, along with technical assistance and support to States on
modified academic achievement standards following the release of these
final regulations.

[Changes]{.underline}: None.

# Criteria for Defining Eligible Students (§200.1(e)(2)) 

[Comment]{.underline}: Several commenters recommended that the
regulations clearly state that a student's IEP Team is responsible for
determining whether the student should be assessed based on modified
academic achievement standards. One commenter added that LEAs should not
be able to unilaterally change an IEP Team's decision. Many commenters
recommended requiring that parents be included in this decision and
informed in writing of any potential consequences of such decisions.
Several commenters stated that the information should be provided to
parents in the parent's native language and in language that is easily
understandable.

[Discussion]{.underline}: We agree that it would be helpful to clarify
that the State guidelines are for IEP Teams to use in determining which
students with disabilities are eligible to be assessed based on modified
academic achievement standards and have made this change in §200.1(e)(2)
and (e)(2)(ii)(A). Consistent with §200.1(f)(1)(i), States have an
important role in providing clear and appropriate guidelines for IEP
Teams to use in determining who will be assessed based on modified
academic achievement standards and in monitoring the implementation of
these guidelines by IEP Teams. We also agree that an LEA cannot
unilaterally change an IEP Team's decision regarding whether a child
will be assessed based on modified academic achievement standards.
Section 300.320(a)(6), consistent with section 614(d)(1)(A)(i)(VI) of
the IDEA, already provides that it is the child's IEP Team, not the LEA,
that is responsible for determining how the child will participate in
State and district-wide assessments.

We do not believe it is necessary to add language to the Title I
regulations ensuring that parents are included in decisions regarding
whether their child will be assessed based on modified academic
achievement standards. The IDEA regulations already require public
agencies to include parents of children with disabilities in decisions
regarding their child's special education, including how the child will
participate in State and district-wide assessments. Section 300.321(a)
of the IDEA regulations requires public agencies to include parents of
children with disabilities as members of the IEP Team. If a child's
parent and the other members of the child's IEP Team determine that the
child will take an alternate assessment based on alternate or modified
academic achievement standards, §300.320(a)(6)(i), consistent with
section 614(d)(1)(A)(i)(VI) of the IDEA, requires that the child's IEP
include a statement of why the particular assessment is appropriate for
the child.

We agree with the commenters that it is important for parents to be
informed of any effects on their child's education that may result from
the child participating in an alternate assessment based on modified or
alternate academic achievement standards. In addition to parents, we
believe it is important for all IEP Team members to have knowledge about
modified or alternate academic achievement standards and any effects
that may result from a child participating in such assessments.
Therefore, we have added language to require States to provide IEP
Teams, which include the parent, with a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effects of State or local policies
on the student's education resulting from taking an alternate assessment
based on alternate or modified academic achievement standards, such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma.

We do not believe, however, that it is necessary to require States to
inform a parent in writing, in addition to the IEP process, that his or
her child will not be assessed based on the same academic achievement
standards as other children. Parents are integral members of the IEP
Team and participate in the decision regarding the type of assessment in
which their child will participate. We expect that, in the course of
determining the appropriate assessment in which a student will
participate, there will be a discussion of how alternate or modified
academic achievement standards differ from grade-level academic
achievement standards and any possible consequences of participating in
alternate assessments based on those standards.

Finally, we do not believe it is necessary to add language to the Title
I regulations requiring public agencies to provide explanations to
parents in the parent's native language and in language that is easily
understandable, as suggested by the commenters. Section 300.322(e) of
the IDEA regulations already requires public agencies to take whatever
action is necessary to ensure that parents understand the proceedings of
IEP Team meetings, including arranging for an interpreter for parents
with deafness or whose native language is other than English.

[Changes]{.underline}: We have changed §200.1(e)(2) to require that the
guidelines that a State establishes under §200.1(f)(1) include criteria
for IEP Teams to use in determining which students with disabilities are
eligible to be assessed based on modified academic achievement
standards. We also have rewritten paragraph (e)(2)(ii)(A) to state that
the IEP Team must be "reasonably certain" that the student will not
achieve grade-level proficiency within the year covered by the student's
IEP, "even if significant growth occurs."

We have added a new paragraph (f)(1)(iii) to require the State
guidelines for IEP Teams to provide a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effect of State and local policies
on the student's education resulting from taking an alternate assessment
based on alternate or modified academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma).

We also have reorganized paragraph (f) regarding State guidelines into
two paragraphs: paragraph (f)(1) lists the requirements for students who
are assessed based on either alternate or modified academic achievement
standards; and paragraph (f)(2) lists additional requirements for
students who are assessed based on modified academic achievement
standards. With this reorganization, proposed §200.1(e)(3), has been
redesignated as new §200.1(f)(1)(ii); proposed §200.1(e)(5) has been
rewritten and redesignated as §200.1(f)(2)(v); and proposed
§200.1(e)(1)(ii) has been rewritten and redesignated as
§200.1(f)(2)(iii).

[Comment]{.underline}: Several commenters stated that determining
whether a student's disability has precluded the student from achieving
grade-level proficiency should not be based solely on a student's
performance on State assessments because State assessments may not allow
the accommodations a student needs to demonstrate what the student knows
and can do. The commenters recommended changing the "or" between
paragraphs (e)(2)(i)(A) and (e)(2)(i)(B) in §200.1 to "and."

[Discussion]{.underline}: We do not believe that the determination of a
student's progress always must include consideration of a student's
performance on State assessments and, therefore, decline to make the
change requested by the commenters. Other objective assessments may be
necessary, for example, for students who are new to the State or for
younger students who have not yet taken a State assessment. What is
important is that the IEP Team consider multiple measurements over a
period of time that are valid for the subjects being assessed, as
specified in §200.1(e)(2)(ii)(B). These measures may include evidence
from a State assessment or other assessments that can validly document
the student's achievement.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters requested a definition of
"high-quality instruction," as used in proposed §200.1(e)(2)(ii)(A),
stating that, without a definition, the requirement that IEP Teams
consider the student's response to high-quality instruction in
determining whether the student should be assessed based on modified
academic achievement standards is not meaningful. One commenter stated
that the proposed regulation assumes that students with disabilities
receive high-quality instruction, but stated that this is not always the
case.

[Discussion]{.underline}: The purpose of §200.1(e)(2)(ii)(A) is to
ensure that students are not identified for an alternate assessment
based on modified academic achievement standards if they have not been
receiving high-quality instruction and services. We agree that it is
difficult to establish objective standards that could be used to
determine whether this criterion has been met and will, therefore,
remove this requirement. However, we continue to believe that safeguards
are needed to ensure that IEP Teams consider whether a student has had
an opportunity to learn grade-level content before determining that the
student should be assessed based on modified academic achievement
standards.

Under §300.306(b) of the IDEA regulations, a student may not be
determined to be eligible for special education and related services if
the determinant factor is lack of appropriate instruction in reading or
mathematics. Schools use current, data-based evidence to examine whether
a student responds to appropriate instruction before determining that
the student needs special education and related services. State and
local officials are responsible for determining what constitutes
appropriate instruction. ([See]{.underline} 71 FR 46646 (Aug. 14,
2006).) State and local officials, therefore, have experience and
knowledge in making judgments about the instruction that a student has
received and whether it has been appropriate. Accordingly, we have
changed the language in §200.1(e)(2)(ii)(A) to ensure that students are
not identified for an alternate assessment based on modified academic
achievement standards if they have not been receiving appropriate
instruction.

[Changes]{.underline}: We have replaced "high-quality instruction" with
"appropriate instruction" in §200.1(e)(2)(ii)(A). We also have added "to
date" following "progress" for clarity.

[Comment]{.underline}: Several commenters recommended requiring
instruction by highly qualified teachers, as defined in the ESEA and the
IDEA, before determining that a student should be assessed based on
modified academic achievement standards.

[Discussion]{.underline}: Both the ESEA and the IDEA already require
teachers to meet the highly qualified teacher standards and we do not
believe it is necessary to reiterate this requirement in these
regulations. Furthermore, while we expect that the vast majority of
students will receive instruction from highly qualified teachers, we do
not want a student who may not have received instruction from a highly
qualified teacher in the past to be precluded from being assessed based
on modified academic achievement standards if that alternate assessment
is most appropriate for that student.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter asked if the number of years a
student with disabilities' performance was below grade level could be
used to identify the student as eligible to be assessed based on
modified academic achievement standards.

[Discussion:]{.underline} Section 200.1(e)(2)(ii) requires a student's
IEP Team to consider the student's progress to date in response to
appropriate instruction and to be reasonably certain that, even if
significant growth occurs, the student will not achieve grade-level
proficiency within the year covered by the student's IEP. Data
documenting that a student has been performing below grade level for a
number of years could be one factor in determining if a student should
be assessed based on modified academic achievement standards.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter requested examples of multiple
measures over time that may be used to determine a student's progress
under §200.1(e)(2)(ii)(B). Another commenter asked whether States are
required to use response to intervention procedures to demonstrate
student progress over a period of time.

[Discussion]{.underline}: In order to determine whether a student may be
eligible for an alternate assessment based on modified academic
achievement standards, an IEP Team may examine results from a variety of
measures that indicate a student's progress over time. These may be
either criterion-referenced tests (i.e., tests that assess skill mastery
and compare a student\'s performance to curricular standards, such as
State and district-wide tests) or norm-referenced tests (i.e., tests
that compare a student's performance to that of students of the same age
or grade). The format of the multiple measures may include performance
assessments (i.e., an assessment that focuses on specific objectives and
enables the student to actively demonstrate knowledge and understanding,
such as direct writing and math assessments); portfolio assessments
(i.e., a collection of student work samples); curriculum-based measures
(i.e., repeated measures from the student\'s curriculum that assess the
specific skills being taught in the classroom and the effectiveness of
instruction and instructional changes); and teacher-developed
assessments (i.e., assessments developed by individual teachers for use
in their own classrooms).

Section 200.1(e)(2)(ii)(B) does not require States to use response to
intervention procedures; nor does it specify the procedures or measures
that must be used to determine a student's progress over time. We
believe that IEP Teams should have as much flexibility as possible to
use objective data to determine whether a student is eligible for an
alternate assessment based on modified academic achievement standards.
The purpose of §200.1(e)(2)(ii)(B) is to clarify that IEP Teams must not
rely on a single measure to determine whether it is appropriate to
assess a student based on modified academic achievement standards. So
long as the measures are objective and valid for the subjects being
assessed, they may be used to determine whether a student is making
progress.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters supported the proposed
requirement that a student be receiving instruction in grade-level
content in order to be assessed based on modified academic achievement
standards and asked what documentation would be required to ensure that
students with disabilities have the opportunity to learn grade-level
content. Other commenters stated that the proposed regulations did not
address the broad continuum of cognitive functioning and, instead,
focused on the wrong group of students. Many commenters stated that
modified academic achievement standards should be for students who are
closer in achievement to students with the most significant cognitive
disabilities rather than students who are close to grade-level
achievement.

[Discussion]{.underline}: The requirement that a student be receiving
grade-level instruction was intended to ensure that students identified
to be assessed based on modified academic achievement standards have
access to grade-level content. We did not want students to be assessed
based on modified academic achievement standards merely because they did
not have access to grade-level content or solely because their
achievement was one or two grades below their enrolled grade. However,
based on the comments we received, we believe this requirement was
misinterpreted to mean that only students achieving close to grade level
could potentially be assessed based on modified academic achievement
standards. That was not our intent. Rather, we anticipated that students
assessed based on modified academic achievement standards could include
students from any of the disability categories under the IDEA and
represent a fairly wide spectrum of abilities. Therefore, we have
removed the requirement in §200.1(e)(2)(iii) that students identified to
be assessed based on modified academic achievement standards be
receiving grade-level instruction.

However, we continue to believe that it is critical to ensure that
students who participate in an alternate assessment based on modified
academic achievement standards receive instruction in grade-level
content so that they are prepared to demonstrate their mastery of
grade-level content on an alternate assessment based on modified
academic achievement standards and can move closer to grade-level
achievement. One way to help ensure that students have access to
grade-level content before they are assessed based on modified academic
achievement standards, and receive instruction in grade-level content
after they are assessed based on modified academic achievement
standards, is to require IEP Teams to include goals that are based on
grade-level content standards in the IEPs of these students. Such an
approach focuses the IEP Team and the student on grade-level content and
the student's achievement level relative to those content standards.
Therefore, we have added a requirement that the IEP of a student to be
assessed based on modified academic achievement standards include goals
that are based on the academic content standards for the grade in which
the student is enrolled and that the IEP be designed to monitor a
student's progress in achieving the student's standards-based goals. To
further emphasize the importance of ensuring that students who
participate in an alternate assessment based on modified academic
achievement standards receive instruction in grade-level content, we
also make clear in new §200.1(f)(2)(iii) that States must ensure that
these students have access to the curriculum, including instruction, for
the grade in which the student is enrolled.

Incorporating State content standards in IEP goals is not a new idea.
Because the reauthorization of IDEA in 1997 required States to provide
students with disabilities access to the general curriculum, the field
has been working toward incorporating State standards in IEP goals. Some
States already require IEP Teams to select the grade-level content
standards that the student has not yet mastered and to develop goals on
the basis of the skills and knowledge that the student needs to acquire
in order to meet those standards. In addition, some States have
developed extensive training materials and professional development
opportunities for staff to learn how to write IEP goals that are tied to
State standards.[^2]

We appreciate that States that have not moved in this direction may need
technical assistance and support to institute this change for students
who are assessed based on modified academic achievement standards. The
Department's Office of Special Education Programs (OSEP) is preparing
such technical assistance, which will be disseminated and available upon
publication of these final regulations.

We believe that requiring IEP Teams to incorporate grade-level content
standards in the IEP of a student who is assessed based on modified
academic achievement standards and to monitor the student's progress in
achieving the standards-based goals will focus IEP Teams on identifying
the educational supports and services that the student needs to reach
those standards. This will align the student's instruction with the
general education curriculum and the assessment that the IEP Team
determines is most appropriate for the student.

[Changes]{.underline}: We have removed the requirement in
§200.1(e)(2)(iii) that a student be receiving grade-level instruction in
order to be assessed based on modified academic achievement standards,
and replaced it with a requirement that, if a student identified for an
alternate assessment based on modified academic achievement standards
has an IEP that includes goals for a subject assessed under §200.2,
those goals must be based on the content standards for the grade in
which the student is enrolled. We have added "the" before "curriculum"
and "including instruction," before "for the grade in which the students
are enrolled" in §200.1(f)(2)(iii). For consistency with these changes,
we have added this requirement as new §200.1(f)(2)(ii)(A) to the list of
requirements for States to include in their guidelines for IEP Teams. We
also have added §200.1(f)(2)(ii)(B) to require that a student's IEP be
designed to monitor the student's progress in achieving the
standards-based goals. [Comment]{.underline}: Some commenters stated
that requiring a student to be receiving instruction in grade-level
content in order to be assessed based on modified academic achievement
standards would encourage social promotion or retention.

[Discussion]{.underline}: As noted above, we removed the requirement
that a student be receiving instruction in grade-level content in order
to be assessed based on modified academic achievement standards because
it was misinterpreted to mean that only students achieving close to
grade-level could potentially be assessed based on modified academic
achievement standards. However, we continue to believe that it is
critical to ensure that students who participate in an alternate
assessment based on modified academic achievement standards receive
instruction in grade-level content. We believe that students who are not
exposed to grade-level content will not learn the content, which will
delay their learning and increase the likelihood of being retained or
socially promoted.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter stated that another alternate
assessment is needed for students with mild cognitive impairments.
Several commenters stated that, because a student's performance would
not be based on grade-level academic achievement standards, the
requirements for participation in an alternate assessment based on
modified academic achievement standards should be stricter to ensure
that students are not inappropriately assessed.

[Discussion]{.underline}: We do not believe that another alternate
assessment is needed for students with mild cognitive disabilities.
These final regulations give States the flexibility to develop and
implement modified academic achievement standards in ways that fit
within their existing assessment systems, while ensuring that students
with disabilities are not inappropriately assessed based on modified
academic achievement standards. We believe that the criteria for
modified academic achievement standards in §200.1(e), along with the
safeguards provided by the requirements for State guidelines in
§200.1(f), are adequate to ensure that students are not inappropriately
assessed based on modified academic achievement standards. Depending on
the nature of a State's grade-level and alternate academic achievement
standards, a State may wish to tailor its alternate assessment based on
modified academic achievement standards to a more narrowly defined group
of students. We, therefore, have made clear that the criteria for
students to be assessed based on modified academic achievement standards
in §200.1(e)(2) are only a minimum threshold and that States may add
additional criteria if they choose to do so.

[Changes]{.underline}: We have added "Those criteria must include, but
are not limited to, each of the following:" to the end of §200.1(e)(2).

[Comment]{.underline}: Several commenters requested that the regulations
clarify that an IEP Team must make a determination of eligibility for
each subject assessed. Other commenters added that a student who has
difficulty in only one subject area should be allowed to take an
alternate assessment in that one area and take a regular assessment in
the other subject(s).

[Discussion]{.underline}: If a State chooses to develop modified
academic achievement standards, proposed §200.1(e)(4) would have
required that a student be allowed to take an alternate assessment based
on modified academic achievement standards in one or more subjects.
Thus, a student could take an alternate assessment based on modified
academic achievement standards in reading, for example, and a regular
assessment in mathematics. However, we agree that the regulations should
state more clearly that a student's IEP Team is responsible for making a
determination for each subject assessed whether the student participates
in an alternate assessment based on modified academic achievement
standards. Therefore, we have added a new §200.1(f)(2)(i) clarifying
that States must inform IEP Teams that a student may be assessed based
on modified academic achievement standards in one or more subjects. We
also have added language to new §200.1(f)(1)(i)(B) (proposed
§200.1(f)(1)(ii)) and §200.1(f)(2)(v) (proposed §200.1(c)(5)) to make
this clear.

[Changes]{.underline}: We have added a new §200.1(f)(2)(i) requiring
States to inform IEP Teams that a student may be assessed based on
modified academic achievement standards in one or more subjects for
which assessments are administered under §200.2. We also have added
"These students may be assessed based on modified academic achievement
standards in one or more subjects for which assessments are administered
under §200.2" at the end of new §200.1(f)(1)(i)(B) (proposed
§200.1(f)(1)(ii)). With this addition, proposed §200.1(e)(4) is no
longer necessary and has been removed. Finally, we have added "for each
subject" following "Ensure that each IEP Team reviews annually" in new
§200.1(f)(2)(v) (proposed §200.1(c)(5)).

[Comment]{.underline}: Several commenters requested that the decision to
assess a student based on modified academic achievement standards be
reviewed annually.

[Discussion]{.underline}: New §200.1(f)(2)(v) (proposed §200.1(e)(5))
already requires that the decision to assess a student based on modified
academic achievement standards be reviewed annually for each subject by
the student's IEP Team to ensure that those standards remain
appropriate.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter stated that a student should not be
eligible for an alternate assessment based on modified academic
achievement standards unless the student had been provided with all the
appropriate accommodations for the grade-level assessment.

[Discussion]{.underline}: We believe that a student's IEP Team is in the
best position to determine whether the student should be assessed on the
regular assessment with accommodations before participating in an
alternate assessment based on modified academic achievement standards
and, therefore, decline to make the requested change.

[Changes]{.underline}: None.

# State Guidelines (§200.1(f))

[Comment]{.underline}: Several commenters recommended that the
regulations require a State to provide training to IEP Teams so that the
guidelines are implemented in a manner that ensures that students can
progress to grade-level achievement standards. The commenters also
recommended requiring a State to collect and review data from LEAs on
how the guidelines are being implemented and investigate LEAs when
proficiency rates are higher on alternate assessments than on the
regular assessment.

[Discussion]{.underline}: Proposed §200.1(f)(1) already requires a State
that defines alternate or modified academic achievement standards to
establish and ensure implementation of clear and appropriate guidelines
for IEP Teams to apply in determining whether a student will be assessed
based on modified or alternate academic achievement standards.
Furthermore, the general supervision requirements in section 612(a)(11)
of the IDEA require a State to monitor the implementation of State
guidelines for the participation of students with disabilities in State
and district-wide assessments. The specific ways in which a State
conducts its monitoring are best left to the State to determine based on
State and local needs. Therefore, we decline to require a State to
investigate when proficiency rates are higher on alternate assessments
as compared with regular assessments. We also do not believe it is
necessary to duplicate monitoring requirements under Title I that would
generate additional and unnecessary paperwork. However, we do believe
that it is important to emphasize that a State is responsible for
monitoring, as well as establishing and implementing State guidelines,
and have made this change in the regulations.

[Changes]{.underline}: We have changed "establish and ensure
implementation of clear and appropriate guidelines" to "establish and
monitor implementation of clear and appropriate guidelines" in new
§200.1(f)(1)(i) (proposed §200.1(f)(1)). We also have added a new
§200.1(f)(2)(ii), which reiterates the responsibility of a State to
establish and monitor implementation of clear and appropriate guidelines
for IEP Teams to apply for students who are assessed based on modified
academic achievement standards.

[Comment]{.underline}: One commenter argued that a State's guidelines
for IEP Teams would not have the force of law and recommended that the
regulations require the State to implement requirements that are
enforceable by law.

[Discussion]{.underline}: It is unnecessary to add a regulation
requiring States to implement requirements that are enforceable by law
because, regardless of the legal mechanism a State uses to implement
guidelines for IEP Teams, those guidelines must meet the requirements of
these regulations in order for the State to be in compliance with part A
of Title I and to continue to receive funds under this part.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters stated that the regulations
should include additional guidelines to ensure that States use similar
criteria to identify students to be assessed based on modified academic
achievement standards. One commenter stated that the guidelines should
draw a "bright line" between students with the most significant
cognitive disabilities and students assessed based on modified academic
achievement standards. Specifically, the commenter recommended
clarifying that students with the most significant cognitive
disabilities are those who will never be able to demonstrate progress on
grade-level academic achievement standards even if provided with the
very best possible education and accommodations.

[Discussion]{.underline}: Section 200.1(d), regarding alternate academic
achievement standards, and §200.1(e), regarding modified academic
achievement standards, leave to each State the responsibility to define
the students with disabilities who may be assessed based on alternate or
modified academic achievement standards. These final regulations set
certain parameters that a State must meet, but we do not believe it is
the proper role of the Federal government to specifically set forth a
"bright line" between the students who should participate in an
alternate assessment based on alternate academic achievement standards
versus an alternate assessment based on modified academic achievement
standards. Moreover, such a distinction may vary from one State to the
next depending on how States have organized their State content
standards and established their academic achievement standards.

[Changes]{.underline}: None.

# Inclusion of All Students (§200.6)

[Students Eligible Under IDEA and Section 504 (§200.6(a))]{.underline}

[Comment]{.underline}: One commenter recommended that the regulations
permit students with disabilities to use modifications, as well as
accommodations, in State assessments. The commenter stated that an
accommodation in one State (e.g., a calculator) may be considered a
modification in another State and that this variation is unfair to
students and schools.

[Discussion]{.underline}: A "modification" used in an assessment is
generally regarded as a change in test administration that alters what
is being measured and, therefore, results in an invalid test score.
Whether a particular support, such as use of a calculator, is considered
a modification or an accommodation can only be determined by considering
the intended purpose and content of an assessment. States vary in terms
of the purposes and content of their assessments and, therefore, may
vary in terms of whether a particular support provided to a student
during an assessment is considered a modification or an accommodation.
States determine whether a particular testing procedure or support, such
as use of a calculator, invalidates the results. States must provide
evidence for the Department's peer review of Statewide assessment
systems under Title I of the ESEA that their State assessments are valid
and reliable for the purposes for which the assessments are used, and
are consistent with relevant, nationally recognized professional and
technical standards. Therefore, we decline to make the change requested
by the commenter.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters recommended that States
develop and disseminate information on, and promote the use of,
appropriate accommodations for alternate assessments based on modified
and alternate academic achievement standards, in addition to assessments
based on grade-level standards.

[Discussion]{.underline}: Section 1111(b)(3)(C)(ix)(II) of the ESEA and
section 612(a)(16) of the IDEA already require a State to provide
appropriate accommodations for students to participate in a State's
assessment system. This includes accommodations for alternate
assessments. Therefore, the change recommended by the commenters is
unnecessary.

[Changes]{.underline}: None.

[Comment]{.underline}: None.

[Discussion]{.underline}: In reviewing the proposed regulations, we
noted that §200.6(a)(1)(ii)(A) referred to "grade-level academic
achievement standards." We wanted to be clear that §200.6(a)(1)(ii)(A)
refers to the academic achievement standards for the grade in which the
student is enrolled. Therefore, we have made this change in
§200.6(a)(1)(ii)(A).

[Changes]{.underline}: Section 200.6(a)(1)(ii)(A) has been changed by
adding "for the grade in which a student is enrolled" following
"academic achievement standards" and removing "grade-level" before
"academic achievement standards."

[Comment]{.underline}: One commenter recommended requiring a State to
(A) develop assessments that are universally designed and valid for the
widest possible range of students; (B) study the effect of
accommodations on the validity of the State's assessment in order to
identify which accommodations are valid for each assessment; and (C)
document the extent to which universal design principles are not used.

[Discussion]{.underline}: We decline to make the changes requested by
the commenter. The IDEA regulations already require a State (or in the
case of a district-wide assessment, an LEA), to the extent feasible, to
use universal design principles in developing and administering
assessments. ([See]{.underline} new §300.160(g) (proposed §300.160(f))
and section 612(a)(16)(E) of the IDEA.)

The Department's peer review of Statewide assessment systems under Title
I of the ESEA requires a State to provide evidence that its State
assessments are valid and reliable for the purposes for which they are
used and are consistent with relevant, nationally recognized
professional and technical standards. In order to ensure that
assessments are valid and reliable and meet the technical quality
requirements of the peer review, a State must study the effect of
accommodations on the validity of the State's assessment.

We believe that implementing the commenter's recommendation to require
States to document the extent to which universal design principles are
not used (e.g., defining "universal design principles") would require
significant resources and time and be a burden for a State to report.
Therefore, we decline to make the changes requested by the commenters.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended changing
§200.6(a)(1)(ii)(B) to require a State to ensure that related services
providers, in addition to regular and special education teachers, know
how to administer assessments and use appropriate accommodations.

[Discussion]{.underline}: Section 200.6(a)(1)(ii)(B) already requires
States to ensure that "other appropriate staff," in addition to regular
and special education teachers, know how to administer assessments and
make appropriate use of accommodations. We believe State and local
authorities are in the best position to determine the other appropriate
staff, which could include related services providers, who must know how
to administer assessments and make use of appropriate accommodations.
Therefore, we decline to make the change requested by the commenter.

[Changes]{.underline}: None.

[Comment]{.underline}: A few commenters recommended requiring a State to
develop personnel standards and provide professional development in
order to ensure that all educators are skilled in administering
assessments and providing appropriate accommodations.

[Discussion]{.underline}: Section 200.6(a)(1)(ii)(B) requires States to
ensure that regular and special educators, as well as other appropriate
staff, know how to administer assessments and make use of appropriate
accommodations. Whether a State ensures that this occurs through
developing personnel standards or professional development is best left
for each State to determine.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended changing
§200.6(a)(2)(iii) to require that students with the most significant
cognitive disabilities be involved in and make progress in the general
curriculum, consistent with the IDEA. The commenter also recommended
that the regulations be changed to require students with the most
significant cognitive disabilities to be included in assessments that
are aligned to the content standards for the grade in which the student
is enrolled.

[Discussion]{.underline}: Section 200.6(a)(2)(iii) already requires a
State to document that students with the most significant cognitive
disabilities are included in the general curriculum. Further, as the
commenter notes, the IDEA requires students with disabilities to be
involved in the general curriculum. Specifically, section
614(d)(1)(A)(i)(IV)(bb) of the IDEA requires each student's IEP to
include a statement of the special education and related services and
supplementary aids and services to be provided to the child to be
involved in and make progress in the general education curriculum. This
requirement applies to all students with disabilities, including
students with the most significant cognitive disabilities. Therefore, we
do not believe it is necessary to repeat this requirement in
§200.6(a)(2)(iii). However, in preparing these final regulations, we
noted an error in current §200.6(a)(2)(iii)[^3] in the NPRM. Current
§200.6(a)(2)(iii) requires that, if a State permits the use of alternate
assessments based on alternate academic achievement standards, the State
must document that students with the most significant cognitive
disabilities are, to the extent possible, included in the general
curriculum. In the NPRM for these final regulations on modified academic
achievement standards, "maximum" was inadvertently added before "extent
possible." We have corrected this error in the final regulations. It is
important to correct this error because the provision could be
interpreted as extending authority beyond the IDEA, which requires each
student's IEP to include a statement of the special education and
related services and supplementary aids and services to be provided to
the child to be involved in and make progress in the general education
curriculum.[^4]

With regard to the comment that the regulations be changed to require
students with the most significant cognitive disabilities to be included
in assessments that are aligned to the curriculum for the grade in which
the student is enrolled, the Department's non-regulatory guidance on
alternate academic achievement standards for students with the most
significant cognitive disabilities states that, if a State chooses to
establish alternate academic achievement standards, such standards must
be aligned with the State's academic content standards for the grade in
which the student is enrolled (or in the case of students in un-graded
classrooms, the grade level commensurate to the student's age).
([See]{.underline} C-3 of the guidance.)[^5]

Substantive changes to existing regulations cannot be made without
publishing an NPRM and providing an opportunity for the public to
comment on proposed regulations. The NPRM published on December 15, 2005
regarding modified academic achievement standards did not include the
recommended change to the regulations governing alternate assessments
based on alternate academic achievement standards. Therefore, we cannot
make the requested change in these final regulations.

[Changes]{.underline}: We have deleted "maximum" before "extent
possible" in §200.6(a)(2)(iii).

[Alternate Assessments that Measure Performance based on Modified
Academic Achievement Standards (§200.6)(a)(3))]{.underline}

[Comment]{.underline}: Many commenters recommended requiring that an
assessment based on modified academic achievement standards be referred
to as an alternate assessment.

[Discussion]{.underline}: We did not describe assessments based on
modified academic achievement standards as alternate assessments in the
NPRM because we wanted to distinguish such assessments from alternate
assessments based on alternate academic achievement standards. However,
we agree with the commenter that it would be clearer to refer to such
assessments as alternate assessments and have made this change in the
regulations.

[Changes]{.underline}: Where appropriate, we have inserted "alternate"
before "assessment" throughout the regulations to make clear that an
assessment based on modified academic achievement standards is an
alternate assessment.

[Comment]{.underline}: Many commenters suggested that terminology be
clarified to differentiate among various alternate assessments using
"modified assessment" to refer to an assessment based on modified
academic achievement standards and "adapted assessment" to refer to an
alternate assessment based on alternate academic achievement standards.

[Discussion]{.underline}: Precise use of terminology to avoid confusion
in the development and use of alternate assessments for students with
disabilities is desirable. However, the particular terms suggested by
the commenters would not likely accomplish this goal. In the measurement
community "modified assessment" has a restricted meaning that is not
consistent with the intent of the assessment permitted under these
regulations, and we believe "adapted assessment" does not accurately
convey that an alternate assessment is based on alternate academic
achievement standards. Therefore, we decline to make the changes
recommended by the commenters.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters requested that the regulations
define "aligned," as used in new §200.6(a)(3)(ii)(A) (proposed
§200.6(a)(3)(i)). One commenter requested that the regulations include
the criteria that will be used to determine whether there is sufficient
coverage of grade-level content standards. One commenter recommended
requiring alternate assessments based on modified academic achievement
standards to assess the core objectives of a State's grade-level
academic content standards. []{.mark}

[Discussion]{.underline}: We decline to include a definition of
"alignment" in these regulations because it is a term of art in the
assessment field. However, the Department's standards and assessment
peer review guidance for Title I includes several characteristics of
alignment that are considered by peer reviewers in determining whether
assessments are aligned with content standards. First, reviewers
consider the range of content, meaning that all of the standards are
represented in the assessment and that the assessment is as cognitively
challenging as the standards (depth/difficulty). This is the single
aspect of alignment that may differ between the regular grade-level
assessment and an alternate assessment based on modified academic
achievement standards. Second, reviewers look for evidence that the
assessment represents both the content knowledge and the process skills
evident in the content standards. Third, reviewers consider whether the
assessment reflects the same degree and pattern of emphasis as the
content standards (balance). Generally, an alternate assessment based on
modified academic achievement standards should be aligned with
grade-level content standards in the same manner as the regular
assessment. That is, it should represent the full array of content
standards, including factual knowledge and application skills, with the
same pattern of emphasis that is evident in the content standards. The
Department's peer review guidance further states "\[i\]f a State's
assessments do not adequately measure the knowledge and skills specified
in the State's academic content standards, or if they measure something
other than what these standards specify, it will be difficult to
determine whether students have achieved the intended knowledge and
skills. As a result, it will be difficult to make appropriate policy,
program, and instructional decisions meant to improve students'
achievement." (page 41)[^6]

An alternate assessment based on modified academic achievement standards
should be aligned with grade-level content standards in the same manner
as the general test, with the possible exception of a reduced level of
cognitive demand, sometimes referred to as depth of knowledge. This is a
critical difference between an alternate assessment based on modified
academic achievement standards and an alternate assessment based on
alternate academic achievement standards, which is viewed as aligned
with grade-level content standards even though the content has been
simplified or represented as pre-requisite skills that are an essential
part of the grade-level content.

The assumption underlying the requirement for alignment is that many
students eligible for an alternate assessment based on modified academic
achievement standards are in a regular classroom with children of the
same chronological age; they are receiving instruction in the
grade-level curriculum but because of their disability are not likely to
meet grade-level academic achievement standards in the year covered by
their IEPs. These students may need a less difficult test in order to
effectively demonstrate their knowledge of the grade-level content
standards.

We do not agree with the recommendation that an alternate assessment
based on modified academic achievement standards be required to assess
only the "core objectives" of a State's grade-level academic content
standards. Modified academic achievement standards must represent the
full array of content standards, including factual knowledge and
application of skills, with the same pattern of emphasis that is evident
in the content standards. This is so, regardless of how a State
structures its academic content standards. The approach taken by a State
to ensure the alignment of modified academic achievement standards to
grade-level content standards will depend on how the State has
structured its academic content standards. Content standards may be
grade specific or may cover more than one grade if grade-level content
expectations are provided for each grade. Ultimately, a State that
chooses to develop and implement modified academic achievement standards
must demonstrate during the Department's peer review of State
assessments that its alternate assessment based on modified academic
achievement standards is aligned with challenging grade-level academic
content standards in the same manner as is required for the approval of
the State's regular assessment. The Department acknowledges that
measuring the academic achievement of students with disabilities,
particularly those who will be eligible to be assessed based on modified
academic achievement standards, is an area in which there is much to
learn and improve. We welcome information from States and others on ways
to improve the assessment of students with disabilities. As data and
research on assessments for students with disabilities improve, the
Department may decide to issue additional regulations or guidance.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters argued that the regulations
should permit the use of out-of-level assessments. Another commenter
questioned whether out-of-level assessments would be as valid as
alternate assessments based on modified academic achievement standards.

[Discussion]{.underline}: Alternate assessments based on modified
academic achievement standards are intended for a small group of
students who, by virtue of their disability, are not likely to meet
grade-level achievement standards in the year covered by their IEPs,
despite appropriate instruction. These students need the benefit of
access to grade-level content so that they can move closer to
grade-level achievement. Therefore, alternate assessments based on
modified academic achievement standards must be aligned with grade-level
content standards.

Out-of-level testing means assessing students enrolled in a specific
grade with tests designed for students at lower grades. By definition,
an out-of-level assessment does not cover the same content as an
assessment based on grade-level content standards. Out-of-level testing
is often associated with lower expectations for students with
disabilities, tracking such students into lower-level curricula with
limited opportunities. Therefore, an out-of-level assessment cannot be
used as an alternate assessment based on modified academic achievement
standards.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended requiring an alternate
assessment based on modified academic achievement standards to be
distinguished from the regular assessment by more than a lower cut score
or a change in administration or format.

[Discussion]{.underline}: New §200.1(e)(1)(iv) makes clear that modified
academic achievement standards must be developed through a documented
and validated standards setting process that includes broad stakeholder
input, and §§200.2(b) and 200.3(a)(1) make clear that an alternate
assessment based on modified academic achievement standards must meet
the requirements for high technical quality, including validity,
reliability, accessibility, objectivity, and consistency with nationally
recognized professional and technical standards. Merely changing the
cut-score on a regular assessment would not be sufficient to meet these
requirements.

[Changes]{.underline}: None.

[Comment]{.underline}: Many commenters requested additional guidance on
developing an alternate assessment based on modified academic
achievement standards.

[Discussion]{.underline}: Grade-level content standards serve as the
foundation of an alternate assessment based on modified academic
achievement standards. Beyond this essential requirement, a State may
construct a unique assessment or adapt its regular assessment. We have
added this language to the regulations to make this clear. In addition,
the Department will be issuing nonregulatory guidance and providing
technical assistance to assist States in developing alternate
assessments based on modified academic achievement standards.

[Changes]{.underline}: We have simplified proposed §200.6(a)(3) by
deleting references to paragraphs (a)(1) and (a)(2) and including a new
paragraph (a)(3)(i) to permit a State that chooses to assess students
with disabilities based on modified academic achievement standards to
develop a new alternate assessment or adapt an assessment based on
grade-level academic achievement standards. We also have added a new
paragraph (a)(3)(ii) that lists the requirements for an alternate
assessment based on modified academic achievement standards. Proposed
paragraphs (a)(3)(i) through (a)(3)(iv) have been redesignated as new
paragraphs (a)(3)(ii)(A) through (a)(3)(ii)(D), respectively.

[Reporting (§200.6(a)(4))]{.underline}

[Comment]{.underline}: Several commenters recommended requiring a State
to report the number and percentage of students using accommodations who
take alternate assessments based on modified academic achievement
standards, alternate assessments based on grade-level academic
achievement standards, and alternate assessments based on alternate
academic achievement standards. The commenters stated that these data
are necessary to measure whether students are receiving appropriate
accommodations and whether these accommodations are helping students
achieve.

[Discussion]{.underline}: Section 200.6(a)(4) already requires a State
to report on the number and percentage of students with disabilities
taking regular assessments; regular assessments with accommodations;
alternate assessments based on grade-level academic achievement
standards; alternate assessments based on modified academic achievement
standards; and alternate assessments based on alternate academic
achievement standards. We believe that requiring a State to report the
additional data requested by the commenters would place a significant
burden on the State. In addition, such data would not, by itself,
provide information regarding whether students are receiving appropriate
accommodations and whether those accommodations are helping students
achieve. Therefore, we decline to make the change requested by the
commenters.

We have, however, changed the order of the list of assessments in
§200.6(a)(4) so that "alternate assessments based on the grade-level
academic achievement standards" follows "regular assessments with
accommodations." This will appropriately keep the three types of
assessments based on grade-level academic achievement standards together
in the list, to be followed by "alternate assessments based on the
modified academic achievement standards," and "alternate assessments
based on the alternate academic achievement standards."

[Changes]{.underline}: We have redesignated proposed paragraph
(a)(4)(iv), regarding alternate assessments based on grade-level
academic achievement standards, as new paragraph (a)(4)(iii), and
proposed (a)(4)(iii), regarding alternate assessments based on modified
academic achievement standards, as new paragraph (a)(4)(iv).

[Comment]{.underline}: One commenter recommended requiring the
Department to provide an annual report to Congress on the implementation
of the regulations regarding modified academic achievement standards.
One commenter asked who receives the data required under §200.6(a)(4).
Another commenter expressed concern that reporting the data in
§200.6(a)(4) could violate a student's right to privacy under the Family
Educational Rights and Privacy Act (FERPA) if there were small numbers
of students taking any of the assessments.

[Discussion]{.underline}: Section 200.6(a)(4) pertains to the
requirements in part A of Title I for reporting data to the Secretary
and ensures that the data reported in accordance with section 1111(h) of
the ESEA include data on assessments based on alternate academic
achievement standards and modified academic achievement standards. We
have added language to §200.6(a)(4) to make this clear. These data are
also reported to Congress and, therefore, we do not believe that an
additional report to Congress is necessary, as suggested by one
commenter. With regard to the commenter who expressed concern with the
data reporting requirements and a student's right to privacy, a State is
not required to report data that would violate FERPA (20 U.S.C. 1232g).

[Changes]{.underline}: We have added "to the Secretary" following "A
State must report separately" to make clear that the assessment data
referred to in §200.6(a)(4) are reported separately to the Secretary.

[Comment]{.underline}: One commenter recommended requiring LEAs and SEAs
to collect data on the disability and race of students who are assessed
based on modified academic achievement standards.

[Discussion]{.underline}: We believe that requiring LEAs and SEAs to
collect data on the disability and race of students who are assessed
based on modified academic achievement standards would place an
unnecessary burden on SEAs and LEAs and, therefore, decline to implement
the commenter's recommendation.

[Changes]{.underline}: None.

[Disaggregation of Data (§200.7)]{.underline}

[Comment]{.underline}: Several commenters supported proposed
§200.7(a)(2) that would prohibit a State from establishing a different
minimum number (group size or "n size") of students for some subgroups,
regardless of whether a State chooses to implement modified academic
achievement standards. The commenters stated that having the same group
size for all subgroups would ensure transparency and greater
accountability.

However, one commenter stated that the same group size across all
subgroups should be required only for States that develop modified
academic achievement standards. The commenter also expressed concern
that requiring the same group size across all subgroups could reduce the
desire by some schools and districts to accept out-of-area students due
to concerns that adding more students in a subgroup would affect their
accountability status.

[Discussion]{.underline}: Prior to the implementation of the final
regulations on alternate academic achievement standards for students
with the most significant cognitive disabilities and the announcement of
the proposed regulations on modified academic achievement standards, a
State had limited flexibility in measuring the achievement of students
with disabilities for AYP purposes. Because of ongoing concerns about
how accurately State assessments measure the achievement of a very
heterogeneous subgroup of students (many of whom were assessed with a
range of accommodations to the regular assessment), some States
requested permission to use a larger group size for their students with
disabilities and limited English proficient subgroups. In support of
their requests, States argued that a larger group size for these
subgroups of students would take into consideration the challenges of
measuring their achievement.

With the implementation of these final regulations on modified academic
achievement standards and the Title I regulations on assessment and
accountability for recently arrived and former limited English
proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)), we believe
that States now have sufficient flexibility to measure the achievement
of students with disabilities and LEP students appropriately and,
therefore, no longer need a different group size for these subgroups. In
addition, all States now test in grades 3 through 8 and once in high
school, as opposed to just once per grade span, thereby decreasing the
sampling error associated with smaller group sizes. With these
additional test scores to include in AYP determinations, the argument
for a larger group size for these two subgroups is no longer
statistically justified. Setting a different subgroup size also may lead
to unintended consequences, such as manipulating the number of students
with disabilities in a particular school to ensure that the school will
not be held accountable for those students. We believe that, in order to
ensure that schools are held accountable for the achievement of students
with disabilities (as well as for students with limited English
proficiency), the use of differentiated subgroup sizes for purposes of
measuring AYP must end.

Given the timing of these regulations, we do not expect States with
differentiated subgroup sizes to make this change for the 2006-07 school
year. Therefore, we have added language to make clear that this
provision takes effect for AYP determinations based on assessments
administered in the 2007-08 school year.

[Changes]{.underline}: We have added "Beginning with AYP decisions that
are based on the assessments administered in the 2007-08 school year,"
at the beginning of the sentence in §200.7(a)(2)(ii).

[Comment]{.underline}: Some commenters recommended changing
§200.7(a)(2)(ii) to require a State to set group sizes consistent with
the smallest of its existing subgroups.

[Discussion]{.underline}: States that need to adjust their group sizes
in order to comply with §200.7(a)(2)(ii) must do so by amending their
accountability plans with the approval of the Department. The Department
will consider each State's rationale for its proposed group size
(consistent across all groups). We do not believe it is appropriate to
mandate a particular group size or to require a specific process by
which a State establishes its group size and, therefore, decline to make
the recommended change.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter agreed with the decision to
prohibit different group sizes for subgroups, but did not agree that the
group size for the school as a whole should be the same as that of each
subgroup.

[Discussion]{.underline}: Section 200.7(a)(2)(ii) was intended to
require the minimum group size for a school as a whole (the "all
students" group) to be the same as that of each subgroup. Therefore, we
have changed §200.7(a)(2)(ii) to make this clear.

There may be instances where the number of students in a school is less
then a State's minimum group size. A State must have a policy in place
to determine AYP for every school, even in these cases. Given that
requirement, a State may choose to have a minimum group size of zero for
the "all students" group. However, a State may not choose a minimum
group size for the "all students" group, other than zero, that is
different than that of its subgroups.

[Changes]{.underline}: Section 200.7(a)(2)(ii) has been revised by
adding "or for the school as a whole" at the end of the sentence.

# Adequate Yearly Progress in General (§200.13)

[Comment]{.underline}: Many commenters stated that there is no extant
research to support establishing a 2.0 percent cap on the number of
proficient and advanced scores based on modified academic achievement
standards that may be included in AYP determinations. Many commenters
stated that the research cited in the NPRM excludes IDEA-eligible
students, is based only on reading interventions for early
elementary-age students, and does not include research on math or on
older students.

Some commenters stated that the 2.0 percent cap is too low. However,
many commenters expressed concern that the cap is too high, stating that
the 2.0 percent cap on modified academic achievement standards and the
1.0 percent cap on alternate academic achievement standards translates
to 3.0 percent of all students or 30 percent of students with
disabilities counted as proficient for AYP purposes on alternate
assessments that are not based on grade-level academic achievement
standards. A few commenters stated this is considerably higher than data
reported by the National Center on Educational Outcomes (NCEO) in its
report on the participation of students with disabilities in 2002-03 and
the 2003 data from the State of Kansas.

[Discussion]{.underline}: To ensure that modified academic achievement
standards are used appropriately, these regulations set a cap of 2.0
percent on the proficient and advanced scores of students who are
assessed based on modified academic achievement standards that may be
included in AYP determinations. Together with the State guidelines
required in §200.1(f), we believe that a numeric cap of 2.0 percent will
discourage schools from inappropriately holding students with
disabilities to lower standards.

We acknowledge that it is difficult to determine a numerical limit on
the number of proficient and advanced scores based on modified academic
achievement standards to be included in AYP determinations. Unlike the
1.0 percent cap on proficient and advanced scores based on alternate
academic achievement standards for students with the most significant
cognitive disabilities, we cannot rely on disability incidence rates
because students who would be appropriately assessed based on modified
academic achievement standards are less likely to be predominately from
a few disability categories, as is the case with students with the most
significant cognitive disabilities. In fact, we anticipate that students
who are assessed based on modified academic achievement standards will
be from most, if not all, the different disability categories listed in
the IDEA.

We also considered data from States, including the data from NCEO[^7]
and the State of Kansas[^8] referred to by the commenters, recognizing
that there may be variability among States in the number of students who
meet the requirements to be assessed based on modified academic
achievement standards. We do not expect that every State will use the
full 2.0 percent cap. Therefore, rather than relying on incidence data
or data from a single State or study to establish the cap for modified
academic achievement standards, we relied on multiple sources of data
from research and State experiences. We believe that these multiple
sources of data, when considered together, provide a sound and
legitimate basis for establishing the 2.0 percent cap, while at the same
time protecting students from being inappropriately assigned to take an
alternate assessment based on modified academic achievement standards.
Because our major concern is holding students with disabilities to high
standards, we have taken a conservative approach to estimating the cap.
As a matter of policy, we believe this to be the right approach.

The Department reviewed several studies that indicate 2.0 percent is an
appropriate cap when States, districts, and schools work to ensure that
students receive appropriate educational services and interventions. The
studies cited in the preamble to the NPRM included students with
disabilities, but excluded students with the most severe cognitive
impairments.[^9] For example, McMaster et al. (2005) defined a group of
low-performing students who were persistent non-responders to reading
interventions. The group included both students identified as students
with disabilities and students not identified to receive special
education services, but did not include students with the most severe
cognitive disabilities**.** McMaster et al. reported that 22 percent of
the group remained two standard deviations below average on an outcome
reading assessment following reading intervention. Torgensen et al.
(2001) indicated that 15 to 20 percent of students with severe reading
disabilities remained below average in reading comprehension following
intervention. Finally, literature reviewed and reported by Lyon et al.
(in press) indicates that a 2.0 percent cap is appropriate, based on the
percent of students who may not reach grade-level achievement standards
within the same time frame as other students, even after receiving the
best-designed instructional interventions from highly trained teachers.

Ideally, we would have preferred to base the 2.0 percent cap on a
greater number of studies across a greater age range and encompassing
more math, as well as reading, scores. However, we believe that, given
the available evidence, and our desire to protect students with
disabilities from being inappropriately assessed based on modified
academic achievement standards, the 2.0 percent cap is appropriate,
particularly considering that the cap is not a limit on the number of
students who may participate in an alternate assessment based on
modified academic achievement standards, and the numerous safeguards
that we included in the regulations. However, the Department also
desires to maintain high standards and accountability for the
achievement of all students with disabilities and, therefore, welcomes
comments and data from States and others about how the regulations are
working and may consider revising the regulations in the future should
the comments indicate a need to do so. In addition, the Department
intends to issue a report on the implementation of these regulations
after two years of implementation. As data and research on assessing
students with disabilities improve, the Department may decide to issue
regulations or guidance on other related issues in the future.

[Changes]{.underline}: None.

[Comment]{.underline}: A few commenters stated that the 2.0 percent cap
violates the IDEA requirement that students with disabilities receive a
free appropriate public education (FAPE). The commenters acknowledged
that the cap imposes a limit on the number of proficient and advanced
scores that may be counted as proficient for purposes of calculating AYP
and is not a limit on the number of students who may be assessed based
on modified academic achievement standards. However, the commenters
stated that LEAs will put pressure on IEP Teams to inappropriately
include students in the regular assessment when an LEA is close to
reaching the 2.0 percent cap, which would be a violation of FAPE.

[Discussion]{.underline}: Section 200.1(f) of these final regulations
requires States to establish and monitor guidelines for IEP Teams to
apply in determining which students with disabilities will be assessed
based on alternate and modified academic achievement standards. In
addition, §300.160(c), consistent with section 612(a)(16) of the IDEA,
requires a State (or in the case of a district-wide assessment, an LEA)
to develop and implement alternate assessments and guidelines for the
participation of students who cannot participate in the regular
assessment even with accommodations. These guidelines are intended to
increase the options for IEP Teams regarding appropriate assessments.
The guidelines, however, cannot guarantee that all IEP Team decisions
are the most appropriate.

Under the general supervision requirements in §300.149, consistent with
section 612(a)(11) of the IDEA, we anticipate that a State will exercise
its authority to ensure that LEAs and IEP Teams follow the State
guidelines and give thoughtful, careful consideration to the assessment
that is most appropriate for an individual student so that the situation
described by the commenters does not occur.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended that the regulations
allow a State to determine the number of students in an LEA who may take
an alternate assessment based on alternate or modified academic
achievement standards. The commenter also recommended giving a State the
authority to take corrective action to prevent an LEA from exceeding the
1.0 and 2.0 percent caps.

[Discussion]{.underline}: Permitting a State to impose numeric limits on
the number of students to whom an LEA may administer alternate
assessments, thereby excluding a student whose IEP Team determines that
an alternate assessment is the most appropriate assessment for the
student, would be inconsistent with the IDEA. Section
614(d)(1)(A)(i)(VI) of the IDEA gives a student's IEP Team the authority
to determine how a student with a disability will participate in State
and district-wide assessments. IEP Team decisions should be consistent
with State guidelines, including guidelines for alternate assessments
based on alternate or modified academic achievement standards.
Therefore, we cannot make the change requested by the commenter.

With regard to the commenter's second recommendation to give a State the
authority to take corrective action to prevent an LEA from exceeding the
1.0 percent and 2.0 percent caps, under §200.13(c)(3), an LEA may exceed
the 2.0 percent cap only if the number of proficient and advanced scores
on the alternate assessment based on alternate academic achievement
standards is less than 1.0 percent, and the number of proficient and
advanced scores based on modified and alternate academic achievement
standards combined does not exceed 3.0 percent of all students assessed.
Likewise, a State may grant an exception to an LEA and permit the LEA to
exceed the 1.0 percent cap under the conditions listed in §200.13(c)(5).
If an LEA does not abide by these provisions and exceeds the 1.0 and 2.0
percent caps inappropriately, §200.13(c)(7) already requires a State to
count as non-proficient the proficient and advanced scores that exceed
the caps and determine which scores to count as non-proficient in the
schools and LEAs responsible for students who are assessed based on
alternate or modified academic achievement standards.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter asked if a State would be allowed
to assess students on alternate assessments based on alternate academic
achievement standards if the State chose not to assess students based on
modified academic achievement standards.

[Discussion]{.underline}: The development of modified academic
achievement standards and assessments based on those standards is
voluntary and does not affect a State's implementation of alternate
assessments based on alternate academic achievement standards.
Therefore, a State that already provides an alternate assessment based
on alternate academic achievement standards may choose not to provide an
alternate assessment based on modified academic achievement standards.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters opposed the prohibition on a
State requesting an exception to the 1.0 percent cap on the number of
proficient and advanced scores on alternate assessments based on
alternate academic achievement standards that may be included in AYP
determinations. Some commenters recommended permitting a State to exceed
a combined total of 3.0 percent; other commenters supported a "dotted
line" approach that would set an absolute cap of 3.0 percent, but would
permit a State to exceed the 1.0 percent cap or the 2.0 percent cap.
Some commenters stated that, by not allowing exceptions, the Department
was eliminating the distinction between students with the most
significant cognitive disabilities and students for whom modified
academic achievement standards are appropriate and asked what would
happen to the scores of students in a State that had previously received
an exception to exceed the 1.0 percent cap. Commenters also were
concerned about rural States and the need for exceptions for very small
school districts. Other commenters supported not allowing exceptions.
One commenter stated that there should be a lower cap, and that
exceptions should be permitted based on a lower cap.

[Discussion]{.underline}: The final regulations on alternate academic
achievement standards permitted a State to request an exception to the
1.0 percent cap to account for extraordinary circumstances in the State
that warranted an exception, or for a rural State with small numbers of
students. Since the final regulations were issued in December 2003, the
Department has granted exception requests to four States. Two requests
were for statistical reasons due to the rural nature of the State. The
other two requests were for very small increments over 1.0 percent. In
both of the latter cases neither State has used the exception because
less than 1.0 percent of students tested scored proficient or advanced
on the alternate assessment based on alternate academic achievement
standards.

Based on the requests submitted to date, we believe that there is no
real need to have an exception to the 1.0 percent cap at the State
level. When there are truly unique circumstances within an LEA, such as
a hospital with special services, the LEA exception process should
suffice. In addition, as we stated in the preamble to the proposed
regulations on modified academic achievement standards, we do not
believe that it is appropriate or necessary to permit more than 3.0
percent of proficient and advanced scores on alternate assessments based
on alternate or modified academic achievement standards to be included
in AYP determinations.

We do not agree with the commenters who proposed an absolute cap of 3.0
percent while allowing a State to exceed the 1.0 or 2.0 percent caps.
Section 200.13(c)(3) permits a State's or LEA's number of proficient and
advanced scores based on modified academic achievement standards to
exceed the 2.0 cap only if the number of proficient and advanced scores
based on alternate academic achievement standards is less than 1.0
percent. We believe that this may encourage the participation of
students who are currently assessed based on alternate academic
achievement standards to be assessed based on the more challenging
modified academic achievement standards. A State may not exceed the 1.0
percent cap when there are less than 2.0 percent of proficient and
advanced scores on modified academic achievement standards because we do
not want to create an incentive to identify more students for alternate
assessments based on the less challenging alternate academic achievement
standards.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended changing
§200.13(c)(5)(i)(C) to require an LEA to document that it is "fully and
effectively" implementing the State's guidelines for IEP Teams before it
is granted an exception to the 1.0 percent cap on proficient and
advanced scores based on alternate academic achievement standards.

[Discussion]{.underline}: Section 200.13(c)(5) permits a State to grant
an exception to an LEA to exceed the 1.0 percent cap on proficient and
advanced scores based on alternate academic achievement standards if the
LEA demonstrates that the incidence of students with the most
significant cognitive disabilities exceeds 1.0 percent of all students
in the combined grades assessed, and if the LEA explains why the
incidence of such students exceeds 1.0 percent of all students in the
combined grades assessed.

We do not believe it is necessary to add the requirement suggested by
the commenter that an LEA demonstrate that it has fully and effectively
implemented the State's guidelines. A State must seriously consider
whether to grant an exception to an LEA to exceed the 1.0 percent cap
because the State may not exceed the 1.0 percent cap. We believe that,
in the course of determining whether to grant an exception to an LEA, a
State will consider whether the LEA has followed the State's guidelines
and appropriately identified students to participate in an alternate
assessment based on alternate academic achievement standards.

[Changes]{.underline}: None.

# Making Adequate Yearly Progress (§200.20) 

[Comment]{.underline}: One commenter stated that multiple assessment
administrations should be permitted for all students, not just for
students with disabilities.

[Discussion]{.underline}: Current §200.20(c)(3) applies to all students,
not just students with disabilities. Therefore, the removal of current
§200.20(c)(3) permits multiple test administrations for all students.

[Changes]{.underline}: None.

[Comment]{.underline}: Most commenters supported removing current
§200.20(c)(3), which requires a State to use a student's results from
the first administration of the State assessment to determine AYP.
However, a number of commenters opposed this change and requested that
the regulations continue to require a State to use the results from the
first administration of a test. A few commenters stated that the results
from only the first administration of an assessment should be used
because these scores provide a more accurate measure of school
accountability. The commenters stated that accountability determinations
based on the first assessment administered reflect the effectiveness of
a school's core academic program, while scores from subsequent
administrations improve a school's AYP and give credit for successful
remediation.

One commenter expressed concern that administering an assessment
multiple times compromises the reliability of accountability
determinations because students learn the test. Another commenter
requested additional guidance regarding how many times a State may
administer an assessment and whether different forms of the assessment
must be used. Some commenters suggested limiting retests to one
additional test administration each year to avoid excessive testing and
delays in releasing AYP data.

One commenter suggested changing the regulations to prevent retesting a
student with a different type of assessment or in a different manner
(e.g., with an accommodation) for the sole purpose of obtaining a
proficient score. Several commenters expressed concern that the removal
of current §200.20(c)(3) would result in excessive testing. Other
commenters stated that allowing a State to use the best score from
multiple administrations of a test might result in teachers
concentrating on test preparation instead of improving instruction.

[Discussion]{.underline}: A State that permits multiple administrations
of its assessment must ensure that the assessment continues to be
reliable and valid and provide an accurate measure of school
accountability.

We understand that permitting multiple administrations of an assessment
may raise concerns about over-testing and focusing on test preparation,
rather than instruction. However, we continue to believe that allowing a
State to use the best score of multiple administrations of an assessment
will motivate students, parents, schools, and States to continue working
to attain grade-level achievement and thereby result in greater student
success.

[Changes]{.underline}: None.

[Comment]{.underline}: A few commenters recommended allowing a student's
IEP Team to determine the number of times the student may retake an
assessment.

[Discussion]{.underline}: The IEP Team is responsible for determining
how a student will participate in State and district-wide assessments.
([See]{.underline} §300.320(a)(6) of the IDEA regulations.) Determining
the number of times a student retakes an assessment is not the role of
the IEP Team. IEP Teams do not have the authority to override a State
policy regarding the number of times a student may take an assessment.

[Changes]{.underline}: None.

# Including Scores of Students Previously Identified Under IDEA in AYP Calculations for the Students with Disabilities Subgroup (§200.20(f)) 

[Comment]{.underline}: A number of commenters supported proposed
§200.20(f)(1), which permits a State, in calculating AYP for the
students with disabilities subgroup, to include, for up to two years,
the scores of students who were previously identified under section
602(3) of the IDEA but who no longer receive special education services.
These commenters applauded this section as acknowledging students'
academic achievement and recognizing the positive impact of schools,
teachers, and parents in facilitating that success.

A number of other commenters, however, disagreed. These commenters
expressed concern that allowing a State to include former students with
disabilities in the students with disabilities subgroup would mask the
true performance of students with disabilities and shift the focus away
from improving instruction for those students. One commenter stated that
including former students with disabilities in the disabilities subgroup
would ensure that the disability label would continue to follow the
students.

[Discussion]{.underline}: We recognize that the students with
disabilities subgroup is one whose membership can change from year to
year as students who were once identified as needing services and an IEP
exit the subgroup. Because these students have exited the subgroup,
school assessment results for the students with disabilities subgroup
would not reflect the gains the exiting students have made in academic
achievement. Recognizing this situation, the final regulations allow a
State to include "former students with disabilities" within the students
with disabilities subgroup in making AYP determinations for up to two
AYP determination cycles after they no longer receive special education
services.

At the same time, however, we recognize that it is important that
parents and the public have a clear picture of the academic achievement
of those students with disabilities who remain identified under section
602(3) of the IDEA. Thus, the final regulations distinguish between
including former students with disabilities in the subgroup for
reporting assessment data and including them in the subgroup when
reporting AYP on State and LEA report cards.

Under section 1111(h)(1)(C) and section 1111(h)(2)(B) (as that section
applies to an LEA and each school served by the LEA) of the ESEA,
information on subgroups is reported in two distinct ways. Under section
1111(h)(1)(C)(i), (iii), (iv), (v), and (vi) and section 1111(h)(2)(B)
(as that section applies to an LEA and each school served by the LEA) of
the ESEA, information is reported for all students and the students in
each subgroup, regardless of whether a student's achievement is used in
determining if the subgroup has made AYP (i.e., reporting includes
students who have not been enrolled for a full academic year, as defined
by the State, and students in subgroups too small to meet the State's
minimum group size for determining AYP). For reporting under these
provisions, former students with disabilities may not be included in the
students with disabilities subgroup because it is important that parents
and the public have a clear picture of the academic achievement of
students with disabilities who are currently identified under section
602(3) of the IDEA and are receiving services. On the other hand,
section 1111(h)(1)(C)(ii) and section 1111(h)(2)(B) (as that section
applies to an LEA and each school within the LEA) provide for a
comparison between the achievement levels of subgroups and the State's
annual measurable achievement objectives for AYP in reading/language
arts and mathematics (for all students and disaggregated by
race/ethnicity, disability status, English proficiency, and status as
economically disadvantaged). For this section of State and LEA report
cards, a State and its LEAs are reporting on how students whose
assessment scores were used in determining AYP (i.e., students enrolled
for a full academic year) for reading/language arts and mathematics
compare to the State's annual measurable objective for AYP. For
reporting AYP by subgroup, former students with disabilities may be
included in the students with disabilities subgroup. In this way, a
school's and district's accountability status will reflect their good
work in successfully enabling students with disabilities to make
progress so that they no longer need special education services while
providing parents and the public clear information on how the subgroup
of students with disabilities who are still receiving services is
performing.

We note, of course, that former students with disabilities, because they
are no longer receiving services under section 602(3) of the IDEA, would
not be eligible to be assessed based on either alternate or modified
academic achievement standards.

With regard to the commenter who expressed concern that including the
scores of former students with disabilities in the students with
disabilities subgroup would ensure that the disability label would
follow the student, we do not agree. Students who no longer receive
special education services are not "labeled" as such. The inclusion of
their scores in the students with disabilities subgroup is for AYP
purposes only.

Since the publication of the NPRM on modified academic achievement
standards, the Department published final regulations on the
accountability for recently-arrived and former limited English
proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)) (referred to in
this notice as the LEP regulations). The final LEP regulations permit a
State, in determining AYP for the subgroup of LEP students, to include,
for up to two AYP determination cycles, the scores of students who were
LEP, but who no longer meet the State's definition of limited English
proficiency. The final regulations regarding including the scores of
former students with disabilities in AYP determinations that are a part
of this notice mirror the final LEP regulations in current
§200.20(f)(2). Therefore, we have incorporated the provisions from
proposed §200.20(f)(1), regarding former students with disabilities,
into current §200.20(f)(2). Incorporating these provisions into current
§200.20(f)(2) has resulted in several changes to the structure of
current §200.20(f)(2) and the provisions in proposed §200.20(f)(1). For
example, current §200.20(f)(2) has been organized into paragraphs
(f)(2)(i)(A) and (f)(2)(i)(B) to include provisions regarding the scores
of former LEP students and former students with disabilities in the LEP
subgroup and students with disabilities subgroup, respectively. We have
not detailed all these changes in the discussion that follows because,
while the structure of new §200.20(f)(2) differs from proposed
§200.20(f), the content regarding former students with disabilities is
the same as proposed §200.20(f), with one exception, which is noted in
the "Changes" section in the next comment.

[Changes]{.underline}: We have incorporated the provisions in proposed
§200.20(f) into current §200.20(f)(2). With these changes, proposed
paragraphs (a)(1), (b), and (c)(1) are no longer needed and have been
removed.

[Comment]{.underline}: Several commenters noted that the proposed
regulations could permit a State to include only the scores of some
students who have exited the students with disabilities subgroup. The
commenters recommended that the regulations be amended to clarify that
the scores of [all]{.underline} former students with disabilities must
be included in determining AYP if the scores of any former students with
disabilities are included. The commenters reasoned that a State should
not have the option to include only the proficient and advanced scores
of former students with disabilities in order to raise the achievement
level of the students with disabilities subgroup.

[Discussion]{.underline}: We agree with the commenters. Whether to
include the scores of former students with disabilities in the students
with disabilities subgroup for up to two years is a discretionary
decision of each State. However, if a State makes the decision to
include the scores of former students with disabilities for AYP
calculations, it must include the scores of [all]{.underline} such
students; it may not include just the scores of some students\--for
example, those who scored proficient or advanced\--and exclude the
scores of others. Of course, former students with disabilities must be
included in each other subgroup to which they belong\--e.g.,
economically disadvantaged, Hispanic, etc. We have changed the
regulations to require a State to use the scores of [all]{.underline}
former students with disabilities for AYP calculations if the State
decides to include the scores of any former student with a disability.

[Changes]{.underline}: New §200.20(f)(2)(ii) has been changed by adding
"must include the scores of all such students, but" at the end of the
sentence.

[Comment]{.underline}: One commenter recommended that proposed
§200.20(f)(1) be amended to clarify that former students with
disabilities also may be included in calculating the participation rate
for the students with disabilities subgroup.

[Discussion]{.underline}: We do not believe it is appropriate to permit
a State to include former students with disabilities in calculating the
participation rate for the students with disabilities subgroup. Those
students will be counted as participants in the "all students" group and
in any other subgroup to which they belong. These final regulations
permit a State to include the scores of former students with
disabilities to determine AYP for the students with disabilities
subgroup so that a school and LEA receive the benefits of their efforts
in providing special education and related services that enabled
students with disabilities to no longer need special education services.
There is no similar justification for including former students with
disabilities in calculating the participation rate of the students with
disabilities subgroup. In fact, it is important for the public to know
the participation rate of just students with disabilities because
historically they have been excluded from Statewide assessments.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters recommended that proposed
§200.20(f)(2) be amended to require that the number of former students
with disabilities whose scores are used for AYP must also be included in
the subgroup size for all purposes for which the scores are used. The
commenters reasoned that the only reason to permit inclusion of the
scores of former students with disabilities in determining AYP without
adding those students to the number of students who make up the subgroup
is to keep those students from increasing the subgroup beyond the
minimum group size and thereby making it visible in AYP.

[Discussion]{.underline}: The regulations are designed to assist schools
and LEAs that have a students with disabilities subgroup of sufficient
size (without including former students with disabilities) to yield
statistically reliable information to demonstrate their progress with
that subgroup by enabling those schools and LEAs to include the scores
of former students with disabilities in AYP calculations for up to two
years after the students no longer need special education services.
Therefore, we decline to require a State or LEA that takes advantage of
this flexibility also to include former students with disabilities in
determining whether the students with disabilities subgroup meets the
State's minimum group size. Nothing in these regulations would prevent a
State or LEA that wishes to include former students with disabilities in
the students with disabilities subgroup in determining whether a school
or LEA has a sufficient number of students to yield statistically
reliable information under §200.7(a) from doing so.

[Changes]{.underline}: None.

[Definitions (§200.103)]{.underline}

[Comment]{.underline}: A few commenters recommended including a
definition of "universal design" in these regulations.

[Discussion]{.underline}: We do not believe it is appropriate to include
a definition of "universal design" in these regulations because it is a
term of art with different meanings when applied to different products
and services. As applied to assessments, universal design generally
means that assessments are developed to be accessible for the widest
possible range of students.

[Changes]{.underline}: None.

[Comment]{.underline}: A few commenters recommended defining "pupil
services" to mean "related services," as defined in section 602(26) of
the IDEA.

[Discussion]{.underline}: Equating "pupil services" with "related
services" would be inconsistent with the ESEA. Section 9101(36) of the
ESEA already defines "pupil services" as including "related services."
Therefore, we decline to make the change requested by the commenter.

[Changes]{.underline}: None.

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

This summary includes comments made in response to the Title I NPRM
published in the [Federal Register]{.underline} on December 15, 2005 (70
FR 74624), as well as comments made in response to the proposed IDEA
regulations published in the [Federal Register]{.underline} on June 21,
2005 (70 FR 35839) to implement the IDEA as reauthorized by the
Individuals with Disabilities Education Improvement Act of 2004, Public
Law No. 108-446, enacted on December 3, 2004, regarding the inclusion of
children with disabilities in State and district-wide assessment systems
in accordance with section 612(a)(16) of the IDEA.

[Participation in assessments (§300.160)]{.underline}

[General (§300.160)]{.underline}

[Comment]{.underline}: A few commenters requested that the regulations
clearly state that all students must participate in a State's assessment
program except for a child with a disability who is medically fragile
and cannot tolerate the stress of participating in an assessment.

[Discussion]{.underline}: We cannot make the requested change. Section
300.160(a), consistent with section 612(a)(16)(A) of the IDEA, is clear
that a State must ensure that all children with disabilities are
included in State and district-wide assessment programs. Neither the
IDEA nor these regulations permit categorical exceptions to this
requirement.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter expressed concern that LEAs would
have difficulty developing alternate assessments for district-wide
assessments and requested assistance in identifying ways for LEAs to
meet the requirements in section 612(a)(16)(A) of the IDEA.

[Discussion]{.underline}: Section 612(a)(16)(A) of the IDEA is clear
that all children must participate in State as well as district-wide
assessments. This has been a requirement since the 1997 reauthorization
of the IDEA. LEAs that conduct district-wide assessments must provide an
alternate assessment for children who cannot participate in the
district-wide assessment even with accommodations. Identifying the
manner in which an LEA meets this requirement, however, is a matter that
is best determined by State and local officials.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended requiring benchmarks or
short-term objectives to be developed for students with disabilities
participating in alternate assessments based on modified academic
achievement standards.

[Discussion]{.underline}: Section 614(d)(1)(A)(i)(I)(cc) of the IDEA
requires benchmarks or short-term objectives to be included only in the
IEPs of children with disabilities who participate in alternate
assessments based on alternate academic achievement standards. Alternate
assessments based on modified academic achievement standards are not
alternate assessments based on alternate academic achievement standards.
Therefore, we do not believe that benchmarks or short-term objectives
should be required for children with disabilities who participate in
alternate assessments based on modified academic achievement standards.
Congress specifically limited the requirement for benchmarks and
short-term objectives to the IEPs of children with the most significant
cognitive disabilities who participate in alternate assessments based on
alternate academic achievement standards. As the Senate Committee on
Health, Education, Labor, and Pensions noted in Sen. Rep. No. 108-185
(p. 28), "Short-term objectives and benchmarks can focus too much on
minor details and distract from the real purpose of special education,
which is to ensure that all children and youth with disabilities achieve
high educational outcomes and are prepared to participate fully in the
social and economic fabric of their communities."

We believe that students participating in alternate assessments based on
modified academic achievement standards will benefit more when IEP Teams
focus on goals that are based on grade-level content standards, rather
than on short-term objectives or benchmarks. In the discussion of
comments under §200.1(e)(2)(iii) in this notice, we explain why we are
requiring that the IEPs of children taking alternate assessments based
on modified academic achievement standards include goals based on the
academic content standards for the grade in which the student is
enrolled and that the IEP be designed to monitor the student's progress
in achieving the student's standards-based goals.

[Changes]{.underline}: None.

[Accommodation Guidelines (§300.160(b))]{.underline}

[Comment]{.underline}: A few commenters requested that the regulations
clarify that accommodations that invalidate a score when used in an
assessment may continue to be used in classroom instruction. Other
commenters recommended that the regulations clarify that the
accommodation guidelines are to be used by IEP Teams to recommend
necessary and reasonable accommodations to enable a student to
participate both in the instructional program and in the assessment.

[Discussion]{.underline}: The requirements in §300.160(b) pertain to
guidelines for the use of accommodations in assessments, and do not
speak to the use of accommodations in the classroom. However, there is
nothing in the IDEA or these regulations that would prohibit the use of
accommodations in classroom instruction that, if used in a State
assessment, would invalidate a student's score. Likewise, there is
nothing in the IDEA or these regulations that would prohibit a State
from encouraging IEP Teams to use the accommodation guidelines for
assessments to determine the instructional supports to be provided in
the classroom. Such instructional supports are generally referred to as
supplementary aids and services. Section 300.320(a)(4)(i), consistent
with section 614(d)(1)(A)(i)(IV)(aa) of the IDEA, requires the IEP Team
to identify the supplementary aids and services to be provided to a
child to enable the child to advance appropriately toward meeting the
child's annual IEP goals.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended requiring States and
LEAs to have methodologies in place to determine that the accommodations
provided are valid and reliable and can be objectively determined. A few
commenters recommended requiring a State to submit proposed
accommodations for review and approval by a panel of peer reviewers.

[Discussion]{.underline}: The Department's peer review of Statewide
assessment systems under Title I of the ESEA already requires a State to
provide evidence that the State's assessments are valid and reliable for
the purposes for which the assessments are used, and are consistent with
relevant, nationally recognized professional and technical standards. A
State must also provide evidence that appropriate accommodations are
available to students with disabilities.

For State and LEA assessments that are not part of a State's assessment
system under Title I of the ESEA, a State and its LEAs also have an
obligation, under the IDEA, to ensure that children with disabilities
have available the accommodations that are necessary to measure the
academic achievement and functional performance of the child. In order
to do this, States and LEAs need to determine, for each particular
assessment, the accommodations that will not result in invalid scores
and identify those accommodations in their accommodation guidelines. We
have revised §300.160(b)(2)(i) to make this clear.

The IDEA does not dictate a specific process to be followed in
determining allowable accommodations, and, therefore, we decline to
adopt the recommendations that we do so at this time. We will continue
to evaluate whether States are ensuring that accommodations that would
not result in invalid scores are available and revisit this decision if
the need to do so becomes apparent.

The commenters who recommended requiring a State to submit proposed
accommodations for review and approval by a panel of peer reviewers seem
to be proposing a review to determine the appropriateness of
accommodations that would be divorced from any review of the technical
qualities of the State's assessments. Since decisions about whether a
particular accommodation is or is not allowed depend on how a test is
constructed and validated, we are not making the requested change. As
required by §§200.2(b)(2) and 200.6(a)(1), a State already is under the
obligation to ensure that its assessments under Title I of the ESEA are
designed to be used by the widest possible number of students, and to
ensure that accommodations are provided, when necessary, to measure the
academic achievement of students with disabilities.

[Changes]{.underline}: Section 300.160(b)(2)(i) has been changed to
require a State's guidelines (or in the case of a district-wide
assessment, an LEA's guidelines) to identify the accommodations for each
assessment that do not invalidate the score.

[Comment]{.underline}: One commenter noted that the regulations must
continue to allow IEP Teams to select accommodations based on the needs
of their students, without regard to whether the accommodation could
yield a valid score.

[Discussion]{.underline}: Several sections of the IDEA must be
considered to evaluate the proper role of a State in identifying
accommodations that do not invalidate the scores of children with
disabilities (and result in children being counted as nonparticipants)
and the responsibility of individual IEP Teams to select accommodations
for individual children. Under section 612(a)(16) of the IDEA, a State
has a responsibility to ensure that all children with disabilities are
included in State and district-wide assessments. Under section
614(d)(1)(A)(i)(VI) of the IDEA and §300.320(a)(6)(i) of the IDEA
regulations, a child's IEP must include the individual appropriate
accommodations that are necessary to measure the academic achievement
and functional performance of the child.

A State's role in this regard is thus twofold---it must ensure that
children with disabilities are included in the assessments and that the
accommodations that are offered to individual children with disabilities
are ones that allow a child's academic achievement to be measured. This
carries with it, we believe, a responsibility for each State to clearly
identify for IEP Teams those accommodations that, if used, will not
result in an invalid score, so that children with disabilities will be
appropriately included in assessments. Therefore, as noted earlier, we
have changed §300.160(b)(2)(i) to require State and LEA guidelines to
identify the accommodations for each assessment that do not result in
invalid scores. We also believe that, to meet its responsibility to
ensure that children with disabilities are included in assessments, a
State needs to instruct IEP Teams to select only accommodations that do
not result in invalid scores. The child's IEP Team, though, remains the
primary decisionmaker for the accommodations that will be made available
to the child. Therefore, we have changed §300.160(b)(2)(ii) to make
clear that State and LEA guidelines must instruct IEP Teams to select
only accommodations that do not result in invalid scores.

[Changes]{.underline}: We have changed §300.160(b)(2)(ii) to require
that State and LEA guidelines instruct IEP Teams to select, for each
assessment, only those accommodations that do not invalidate a score.

[Comment]{.underline}: Several commenters stated that a State's
accommodation guidelines should focus on "appropriate accommodations"
and not require "valid accommodations." These commenters stated that the
focus should be on universally-designed assessments that allow many more
accommodations, rather then denying children with disabilities the right
to use the accommodations that are necessary to meet the child's needs.
Another commenter recommended defining "appropriate accommodations" and
"individually appropriate accommodations" as accommodations that are
needed to meet a child's unique needs that maintain and preserve test
validity, reliability, and technical testing standards.

[Discussion]{.underline}: Tests administered with accommodations that do
not maintain test validity are not measuring academic achievement and
functional performance. Therefore, providing these accommodations would
be inconsistent with §300.320(a)(6)(i) and section
614(d)(1)(A)(i)(VI)(aa) of the IDEA, which require each IEP to include
the appropriate accommodations that are necessary to measure the
academic and functional performance of a child on State and
district-wide assessments. With regard to the recommendation that a
State focus on universally designed assessments, new §300.160(g)
(proposed §300.160(f)) already incorporates the requirement in section
612(a)(16)(E) of the IDEA that a State, in the case of Statewide
assessments, and an LEA, in the case of district-wide assessments, to
the extent possible, use universal design in developing and implementing
assessments. Moreover, §200.2(b)(2) of the Title I regulations requires
a State's assessment system to "\[b\]e designed to be valid and
accessible for use by the widest possible range of students, including
students with disabilities."

It is not necessary to provide specific definitions of the terms
"appropriate accommodations" and "individually appropriate
accommodations" because we have revised the provisions in §300.160(b) to
clarify what the accommodations guidelines need to include.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter requested that the regulations
require a State and its LEAs to provide research-based decision-making
tools for IEP Team members to determine appropriate testing
accommodations. A few commenters recommended that the Department provide
guidance regarding accommodations for children with disabilities and
require States and LEAs to provide professional development to school
personnel regarding the participation of students with disabilities in
State and district-wide assessments.

[Discussion]{.underline}: We do not believe that additional regulations
are necessary to address the commenters' concerns. Section 300.160(b)
already requires each State (or in the case of a district-wide
assessment, an LEA) to develop guidelines for IEP Teams to use regarding
the provision of appropriate accommodations. Section 200.6(a)(1)(ii)(B)
of the Title I regulations also requires each State to ensure that
regular and special education teachers, and other appropriate staff know
how to administer assessments, including making appropriate use of
accommodations for students with disabilities.

The Department has devoted considerable resources to provide technical
assistance to States regarding the appropriate use of accommodations for
children with disabilities. For example, the Office of Special Education
Programs supports the National Center on Educational Outcomes
([See]{.underline} http://www.education.umn.edu/nceo/) and the Office of
Elementary and Secondary Education supports a Comprehensive Center on
Accountability and Assessments ([See]{.underline}
http://www.aacompcenter.org/). In addition, the Department's Institute
of Education Sciences supports research to address questions of how
assessments for accountability can best be designed and used to capture
and represent proficiency and growth for children with disabilities
([See]{.underline} http://ies.ed.gov/ncser/).

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter recommended requiring a State to
have in effect policies and procedures that explain how children with
disabilities are included in assessments. The commenter stated that the
policies and procedures related to assessments must include a clear
statement that the IEP Team, including the parent, makes the decision
regarding a child's participation in State and district-wide
assessments; how parents will be notified when decisions regarding the
child's participation in assessments will be made; and when reports will
be distributed to parents and the public. A few commenters requested
that the regulations require the IEP to include the accommodations to be
provided to a child.

[Discussion]{.underline}: The requirements recommended by the commenters
are already addressed in these and other existing regulations. Section
300.160(a), consistent with section 612(a)(16) of the IDEA, requires
each State to have in effect policies and procedures to ensure that all
children with disabilities in the State are included in State and
district-wide assessments, with appropriate accommodations and alternate
assessments where necessary. Section 300.320(a)(6), consistent with
section 614(d)(1)(A)(i)(VI) of the IDEA, requires a child's IEP Team,
which includes the parent, to include in the IEP any individual
appropriate accommodations that are necessary to measure the academic
achievement and functional performance of the child on State and
district-wide assessments. If the IEP Team determines that a child will
take an alternate assessment, the IEP Team must explain why the child
cannot participate in the regular assessment and why the particular
alternate assessment selected is appropriate for the child. Section
300.322(b) requires that the notice to the parent regarding an IEP Team
meeting indicate the purpose of the meeting, in addition to the time and
location of the meeting. Finally, new §300.160(f) (proposed §300.160(e))
requires that reports on the performance of children with disabilities
on State and district-wide assessments be available to the public with
the same frequency and in the same detail as reports on the assessment
of nondisabled children.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter stated that the requirement for
valid accommodations will lead to increased litigation because it
violates section 607(a) and (b) of the IDEA.

[Discussion]{.underline}: We disagree with the commenter. Section 607(a)
of the IDEA states that the Secretary shall issue regulations only to
the extent that such regulations are necessary to ensure compliance with
the specific requirements of the IDEA. Section 607(b) of the IDEA
provides that the Secretary cannot publish final regulations that would
procedurally or substantively lessen the protections provided to
children with disabilities in the regulations that were in effect on
July 20, 1983, except to the extent that such regulations reflect the
clear and unequivocal intent of Congress in legislation. We believe that
§300.160(a) is necessary to ensure that the requirements in sections
612(a)(16) and 614(d)(1)(A)(i)(VI)(aa) of the IDEA are met, does not
lessen protections for children with disabilities that were in
regulations in effect in 1983 (the 1983 regulations did not address
assessments), and reflects the clear and unequivocal intent of Congress.
Section 614(d)(1)(A)(i)(VI)(aa) of the IDEA requires each IEP Team to
include in an IEP the appropriate accommodations that are necessary to
measure the academic and functional performance of a child on State and
district-wide assessments. Tests administered with accommodations that
do not maintain test validity are not measuring academic achievement.
Moreover, the importance of identifying valid accommodations was
recognized on page 97 of the House Committee Report No. 108-77 (2003):

\...States have an affirmative obligation to determine what types of
accommodations can be made to assessments while maintaining their
reliability and validity\.... The Committee is intent on ensuring that
each child with a disability receives appropriate accommodations, but is
equally intent that these accommodations not invalidate the particular
assessment.

Similarly, the Senate Committee Report No. 108-185 (2003) on page 30
acknowledges that appropriate accommodations will not affect the test's
validity. Accordingly, we disagree that the validation requirement
violates section 607(a) or (b) of the IDEA.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter requested a definition of "valid."
Another commenter stated that the regulations should make clear that
accommodations that alter the construct being assessed are not allowed.

[Discussion]{.underline}: As used in §300.160(a), a "valid"
accommodation is an accommodation that does not alter the construct that
the test is intended to measure. Accommodations that affect test
validity do not measure a child's academic achievement. We believe the
requirement for valid accommodations is sufficient to guide IEP Teams
and, therefore, decline to add the suggested language to the regulation.

The Department's nonregulatory guidance on standards and assessment
defines validity ([See]{.underline} question F-4.) and further clarifies
a State's responsibilities for the validity and reliability of
assessments under Title I. This document can be found at
http://www.ed.gov/policy/elsec/guid/saaguidance03.doc. We do not believe
additional clarification is needed in these regulations.

[Changes]{.underline}: None.

[Comment]{.underline}: Several commenters requested that definitions of
"accommodations" and "modifications" be included in these regulations
because definitions of these two terms vary across States.

[Discussion]{.underline}: The terms "accommodations" and "modifications"
are terms of art and have different meanings depending on the context in
which they are used. The terms are used in a number of ways, for
example, to refer to changes to a test or testing environment, or to
adaptations to an educational environment, the presentation of
educational material, the method of response, or the educational
content. We do not believe it is appropriate to define such terms of art
in these regulations. We also note that the term "modifications" is not
used in the IDEA amendments of 2004 or the ESEA, as amended by NCLB.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter stated that special accommodations
should be given for children with the most significant cognitive
disabilities.

[Discussion]{.underline}: Section 1111(b)(3)(C)(ix)(II) of the ESEA and
section 612(a)(16) of the IDEA already require a State to provide
appropriate accommodations for students with disabilities to participate
in State assessment systems. This includes accommodations for alternate
assessments.

[Changes]{.underline}: None.

[Alternate assessments (new §300.160(c)) (proposed
§300.160(d))]{.underline}

[Comment]{.underline}: One commenter stated that the regulations must
specify that States and LEAs are required to develop two alternate
assessments\--one measuring the same academic achievement standards as
all other students and the other based on alternate academic achievement
standards for students with the most significant cognitive disabilities.
A few commenters requested clarification as to whether alternate
assessments are based on high academic achievement standards or
alternate academic achievement standards. One commenter stated that a
State should be required to provide a definition of what constitutes an
alternate assessment.

[Discussion]{.underline}: Section 612(a)(16)(C)(i) of the IDEA is clear
that a State must develop and implement alternate assessments and
guidelines for children with disabilities, but does not specify whether
the alternate assessments must be based on grade-level academic
achievement standards, modified academic achievement standards, or
alternate academic achievement standards. Modified academic achievement
standards under §200.1(e) and alternate academic achievement standards
under §200.1(d) are optional. However, having an alternate assessment is
not optional if there are children with disabilities who cannot be
appropriately assessed with the regular assessment. Therefore, if a
State chooses not to develop an alternate assessment based on modified
or alternate academic achievement standards, the State must have an
alternate assessment based on grade-level academic achievement
standards, unless all children with disabilities can be appropriately
assessed using the regular assessment.

Section 612(a)(16)(A) of the IDEA and §300.160(a) of these regulations
require a State to ensure that all children with disabilities are
included in general State and district-wide assessments. Section
612(a)(16)(C)(i) of the IDEA and new §300.160(c) (proposed §300.160(d))
further require that a State (or in the case of a district-wide
assessment, an LEA) develop and implement alternate assessments and
guidelines for children with disabilities who cannot participate in
regular assessments even with accommodations. Under §§200.1(e) and
200.6(a)(3) of the Title I regulations published in this notice and new
§300.160(c), a State has the option of developing alternate assessments
based on modified academic achievement standards. For clarity, we have
redesignated proposed §300.160(c) as new §300.160(c)(2)(ii) so that it
is clear that an assessment based on modified academic achievement
standards is an alternate assessment.

Because a State has options regarding the type of alternate assessments
that it will provide for students with disabilities, a State would not
necessarily report on the number of students who participated in each of
the alternate assessments. To acknowledge this and for clarity, we have
made clear in new §300.160(f)(2) through (f)(4) (proposed §300.160(e)(2)
through (e)(4)) that a State must report the number of children with
disabilities, if any, who are assessed, using an alternate assessment
based on grade-level, modified, or alternate academic achievement
standards, respectively. We also have removed the regulatory citations
for the different academic achievement standards (e.g., "described in
paragraph (d)(2)(i)") and added the name of the particular achievement
standard to which we are referring (e.g., "grade-level") in new
§300.160(f)(2) through (f)(4) (proposed §300.160(e)(2) through (e)(4)).

With regard to the request to clarify whether alternate assessments are
based on high achievement standards or alternate academic achievement
standards, this will depend on the type of alternate assessment. We
believe that the regulations are clear that there are three types of
alternate assessments permitted under Title I and the IDEA: alternate
assessments based on grade-level academic achievement standards;
alternate assessments based on modified academic achievement standards;
and alternate assessments based on alternate academic achievement
standards.

We do not believe it is necessary for a State to provide a definition of
what constitutes an alternate assessment, as requested by one commenter.
New §300.160(c)(2) (proposed §300.160(d)(2)) clearly lays out that
alternate assessments under Title I of the ESEA must be aligned with a
State's challenging academic content standards and challenging academic
achievement standards and, if a State has adopted modified academic
achievement standards or alternate academic achievement standards,
measure student achievement against those standards.

[Changes]{.underline}: We have (1) redesignated proposed §300.160(c) as
new §300.160(c)(2)(ii) and renumbered the subsequent paragraph; (2)
added "if any" following "number of children with disabilities" in new
paragraphs (f)(2) through (f)(4) (proposed paragraphs (e)(2) through
(e)(4)); and (3) replaced the regulatory citation in new paragraphs
(f)(2) through (f)(4) (proposed (e)(2) through (e)(4)) with the name of
the particular academic achievement standards to which we are referring.

[Comment]{.underline}: Several commenters recommended requiring public
agencies to notify parents in writing when a child's IEP Team determines
that the child will participate in an alternate assessment. A few
commenters recommended requiring parents to be informed in writing of
the consequences of their child taking an alternate assessment,
including any effect on the child's eligibility for graduation with a
regular high school diploma. The commenters stated that providing this
information to parents is particularly important in a State that
requires students to pass a State exam in order to receive a regular
high school diploma.

[Discussion]{.underline}: We agree that it is important for parents to
be informed that their child will be assessed based on alternate or
modified academic achievement standards. We also believe that it is
important that parents, as well as other IEP Team members, are informed
about any effects of State or local policies on their student's
education that may result from taking an alternate assessment based on
alternate or modified academic achievement standards. As the commenters
point out, this information is particularly important in a State where
students must pass a particular assessment to be eligible to receive a
regular high school diploma. Therefore, we have added a regulation
requiring a State to provide IEP Teams, which include the parent, with a
clear explanation of the differences between assessments based on
grade-level academic achievement standards and those based on modified
or alternate academic achievement standards, including any effects of
State or local policies on the student's education resulting from taking
an alternate assessment based on alternate or modified academic
achievement standards (such as whether only satisfactory performance on
a regular assessment would qualify a student for a regular high school
diploma). We also have required a State to ensure that parents of
students selected to be assessed based on alternate or modified academic
achievement standards are informed that their child's achievement will
be measured based those standards. This also is consistent with
§200.1(f)(1)(iii) and (iv) of the Title I regulations.

We do not believe it is necessary to add an additional requirement that
such parental notification be provided in writing, as suggested by
several commenters. Parents are integral members of the IEP Team and, as
such, are involved in decisions about how their child will participate
in the Statewide assessment system. Section 300.320(a)(6)(ii) of the
IDEA regulations already provides that, if an IEP Team determines that a
child will not participate in a particular regular State or
district-wide assessment, the child's IEP must include a statement of
why the child cannot participate in the regular assessment and how that
child will be assessed. Under §300.322(f), a copy of the child's IEP
must be provided to the parents.

[Changes]{.underline}: We have added new paragraph (d) to §300.160
requiring a State to provide IEP Teams with a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effects of State or local policies
on the student's education resulting from taking an alternate assessment
based on alternate or modified academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify the student for a regular high school diploma). We also have
added a new paragraph (e) requiring a State to ensure that parents of
students selected to be assessed based on alternate or modified academic
achievement standards are informed that their child's achievement will
be measured based on alternate or modified academic achievement
standards. The subsequent paragraph has been redesignated as new
paragraph (f).

[Reports (new §300.160(f)) (proposed §300.160(e))]{.underline}

[Comment]{.underline}: One commenter strongly disagreed with reporting
on the number of students with disabilities who receive accommodations.
The commenter stated that, since accommodations do not change the
outcome or alter the knowledge measured by the test, it is inappropriate
to maintain this information.

[Discussion]{.underline}: This is a statutory requirement and therefore
cannot be deleted. Section 612(a)(16)(D)(i) of the IDEA requires a State
(or in the case of a district-wide assessment, an LEA) to make available
to the public information on the number of children with disabilities
participating in regular assessments and the number of these children
who were provided accommodations in order to participate in those
assessments.

[Changes]{.underline}: None.

[Comment]{.underline}: A few commenters stated that accommodations that
invalidate a test score should not be used and, therefore, it is
unnecessary to qualify in new §300.160(f)(1) (proposed §300.160(e)(1))
that the number of children participating in regular assessments who
were provided with accommodations refers to the number of children
participating in regular assessments who were provided with
accommodations "that did not result in an invalid score."

[Discussion]{.underline}: We agree that accommodations that invalidate a
test score should not be used. However, given the lack of consistency in
the field regarding the use of the term "accommodations," we believe it
is important to be clear and to qualify in new §300.160(f)(1) (proposed
§300.160(e)(1)) that reports on the assessment of children with
disabilities who participate in regular assessments with accommodations
include only those children who were provided with accommodations that
did not result in an invalid score. For clarity, we also have reordered
the sequence in which the alternate assessments are listed in new
paragraph (f) (proposed paragraph (e)) to be consistent with the order
in new §300.160(c)(2) (proposed §300.160(d)(2)).

[Changes]{.underline}: We have redesignated proposed §300.160(e)(3),
regarding alternate academic achievement standards, as new
§300.160(f)(4) and redesignated proposed §300.160(e)(4)), regarding
modified academic achievement standards, as new §300.160(f)(3).

[Comment]{.underline}: A few commenters recommended requiring a State to
report on the number of children with disabilities who participated in
the regular assessment with accommodations that invalidated their test
scores. One commenter recommended requiring a State to report on the
number of children who received accommodations that invalidated their
test scores on alternate assessments based on alternate academic
achievement standards and alternate assessments based on modified
academic achievement standards.

[Discussion]{.underline}: Children taking an assessment with
accommodations that invalidate their score should not be reported as
participants. We specify in §300.160(b)(2)(ii) that a State must
instruct IEP Teams to select only those accommodations for each
assessment that do not result in invalid scores. Therefore, we decline
to make the changes requested by the commenters.

[Changes]{.underline}: None.

[Comment]{.underline}: One commenter requested that a State be required
to report on the performance of children with disabilities for each
assessment, not just for regular assessments and alternate assessments.

[Discussion]{.underline}: We agree that the regulation would be clearer
if it identified separately alternate assessments based on grade-level
academic achievement standards, alternate assessments based on modified
academic achievement standards, and alternate assessments based on
alternate academic achievement standards. We have made this change in
new §300.160(f)(5) (proposed §300.160(e)(5)). In addition, we have added
the language inadvertently omitted requiring the performance results for
children with disabilities to be compared to the achievement of all
children, including children with disabilities, as specified in section
612(a)(16)(D)(iv) of the Act.

[Changes]{.underline}: We have changed §300.160(f)(5) (proposed
§300.160(e)(5)) to separately identify regular assessments, alternate
assessments based on grade-level academic achievement standards,
alternate assessments based on modified academic achievement standards,
and alternate assessments based on alternate academic achievement
standards. We also have added an introductory phrase requiring
comparison with assessment results for all children, including children
with disabilities.

[Comment]{.underline}: One commenter recommended requiring a State to
widely distribute information about the reports required in new
§300.160(f) (proposed §300.160(e)) by posting the reports on Web sites,
making the reports available in schools and libraries, and providing
parents with notices that the information is available.

[Discussion]{.underline}: New §300.160(f) (proposed §300.160(e)),
consistent with section 612(a)(16)(D)(i) of the IDEA, requires a State
(or in the case of a district-wide assessment, an LEA) to make available
to the public, and report to the public, with the same frequency and in
the same detail as it reports on the assessment of nondisabled children,
the information outlined in new §300.160(f) (proposed §300.160(e))
regarding the participation and performance of children with
disabilities on State and district-wide assessments. The manner in which
the information is provided to the public (e.g., via Web sites, parent
notices) is a matter that is best left to State and local officials to
determine.

[Changes]{.underline}: None.

[Universal design (new §300.160(g)) (proposed §300.160(f))]{.underline}

[Comment]{.underline}: One commenter recommended requiring a State to
document where universal design principles are not used.

[Discussion]{.underline}: New 300.160(g) (proposed §300.160(f)),
consistent with section 612(a)(16)(E) of the IDEA, requires a State (or
in the case of a district-wide assessment, an LEA), to the extent
feasible, to use universal design principles in developing and
administering assessments. We believe that implementing the commenter's
recommendation (e.g., documenting "universal design principles") would
require significant resources and time and be a burden for a State to
report. Therefore, we decline to make the change requested by the
commenter.

[Changes]{.underline}: None.

#### Executive Order 12866 

Under Executive Order 12866, the Secretary must determine whether this
regulatory action is "significant" and therefore subject to the
requirements of the Executive Order and subject to review by 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 set forth in the
Executive order. The Secretary has determined that this regulatory
action is significant under section 3(f)(4) of the Executive Order.

1\. [Costs and benefits]{.underline}

Under Executive Order 12866, we have assessed the potential costs and
benefits of this regulatory action.

[Summary of Public Comments]{.underline}: Several commenters suggested
that the cost of implementing an alternate assessment based on modified
academic achievement standards would be significant and that the Federal
government should fund new assessments, including universally designed
assessments. Some commenters disagreed with the figures from a study by
the Government Accountability Office (GAO) cited in the NPRM, regarding
the amount of funds spent on assessments in several States.

These comments were considered in conducting the analysis of the costs
and benefits of the final regulations. The Department\'s estimates and
assumptions on which they are based are described below.

[Summary of Potential Costs and Benefits]{.underline}

These regulations provide States with additional flexibility in
implementing the accountability requirements in Title I and the IDEA
with respect to students with disabilities. Specifically, the final
regulations permit States to develop and implement alternate assessments
based on modified academic achievement standards for the group of
students with disabilities, for whom, according to recent research and
the experience of many States, these alternate assessments are
appropriate, and then to use their results in making AYP determinations.
Implementation of these alternate assessments and standards would be a
component of State and local efforts to improve educational outcomes for
this group of students, consistent with the principles and objectives of
NCLB.

The primary impact of the regulations is on the students with
disabilities who are eligible to be assessed based on modified academic
achievement standards. The regulations provide educational benefits to
students by permitting States and LEAs to assess eligible students with
disabilities using assessments that are appropriately challenging but
better designed to measure their educational strengths and weaknesses
and evaluate their achievement of grade-level content, and to provide
information that would be helpful to teachers to guide instruction to
meet the academic needs of these students so they can work toward
grade-level achievement. Based on an actual enrollment of 26.3 million
students[^10] in grades 3 through 8 and 10 in school year 2004-2005, we
estimate that as many as 530,000 children with disabilities could be
affected by, and benefit from, this change in the assessment and
accountability structure in school year 2008-2009.

The potential costs to students would be the harm associated with
including the "wrong" children in the group to be assessed based on
modified academic achievement standards. Given the history of
inappropriately low expectations for children with disabilities, the
potential harm relates to finding students to be eligible for alternate
assessments based on modified academic achievement standards who, in
fact, with appropriate instruction and high quality special education
services, might be able to achieve at the same high level as their
non-disabled peers. The risk is that low expectations could impede the
ability of these students to perform to their potential. The Secretary
believes that the risk of including the "wrong" students in the group to
be assessed based on modified academic achievement standards is not high
because of the central role that IEP Teams play in determining how
individual children will be assessed. Moreover, any harm would be
minimal because the regulations require the assessment determinations to
be made on an annual basis by the IEP Team and they also include a
number of safeguards to ensure that students who are to be assessed
based on modified academic achievement standards have access to
grade-level content so that they can work toward grade-level
achievement. The Secretary has concluded that the educational benefits
of assessing a large number of students whose disabilities have
prevented them from achieving grade-level proficiency using more
appropriate assessments and standards will outweigh any potential harm
associated with assessing children based on modified academic
achievement standards who might have been able to reach grade-level
proficiency in the same time frame as other students. In addition to
these benefits to children, these regulations will give teachers and
schools credit for work that they do with these students to help them
progress toward grade-level achievement, even if they are unable to
reach grade-level proficiency.

Although States are not required to take advantage of the flexibility
provided in these regulations, States may elect to do so, and, as a
result, may incur additional administrative costs associated with the
development of modified academic achievement standards and assessments
based on those standards. However, little information is available for
estimating these costs; we have used the limited information available
to us to develop a rough estimate of the development costs for States
that choose to take advantage of this flexibility.

This analysis is based on a 2003 report, issued by the GAO, "Title I:
Characteristics of Tests Will Influence Expenses: Information Sharing
May Help States Realize Efficiencies," that examined the costs of
developing assessments based on grade-level academic achievement
standards and provides estimates for the ongoing development
expenditures for existing assessments for 7 States.[^11] We have some
concerns about the accuracy of this information, its generalizibility,
and its direct relevance to estimating the costs of developing alternate
assessments based on modified academic achievement standards. With those
caveats, we believe the report does provide some indication of the
variation in costs among States in developing assessments and represents
the best information available to us at this point in time.[^12]

If we assume that GAO's category of ongoing development, which includes
question writing and review, involves the kinds of activities that
States would undertake in developing alternate assessments based on
modified academic achievement standards, the GAO data can be used as a
basis for projecting the possible costs of developing assessments based
on modified academic achievement standards. For example, we can estimate
an upper limit on the total costs of developing these alternate
assessments\--\$169 million\--by using the GAO data reported for
Massachusetts[^13] and assuming that 52 jurisdictions would choose to
develop alternate assessments based on modified academic achievement
standards for each of the 17 assessments required by Title I to be
administered in 2008-2009. Although this upper-bound estimate represents
the best information available to us at this point in time, we believe
it may significantly overstate the costs of developing these alternate
assessments insofar as the estimate GAO included for Massachusetts,
which was more than 2.4 times as large as the estimates included for 5
of the other States, may not be indicative of the costs of assessment
development in other States using different types of questions or
approaches to assessment.

In addition, this estimate does not reflect the reduced costs for the 4
States that already have alternate assessments based on modified
academic achievement standards in place under the interim flexibility
policy. States that adopted alternate assessments based on modified
academic achievement standards under the interim flexibility policy
would still be required to undergo peer review once the final
regulations are in effect. However, if the peer review determines that
no adjustments are needed to any of the assessments in these States, the
estimated cost of producing alternate assessments in the other 48
jurisdictions would be reduced to \$155 million.

In addition, we do not know the extent to which States would elect to
develop alternate assessments based on modified academic achievement
standards for each grade and subject, since States that choose to take
advantage of the flexibility are not required to develop modified
academic achievement standards in every grade or every subject. However,
in light of what we know about the performance of students with
disabilities on State assessments and AYP determinations, we think it is
highly unlikely that all States would elect to develop alternate
assessments based on modified academic achievement standards for all of
the required 17 assessments. If we assume that typically States would
develop only 8 assessments (e.g., reading/language arts and mathematics
assessments for grades 6, 7, 8, and a high school grade), which may be a
more accurate estimate of the impact of the rule based on the available
information, the total costs would be estimated to be \$79 million for
52 jurisdictions and \$73 million for 48 jurisdictions.

Since the regulations would not require that States adopt separate test
administration or scoring procedures, we assume that no additional costs
would be incurred in administering assessments based on modified
academic achievement standards. In addition, although many States choose
to create new assessments or revise parts of assessments at regular
intervals, this is not required by these regulations so these estimates
assume that development costs are nonrecurring.

States that elect to develop modified academic achievement standards
would also incur minimal costs for the development and implementation of
guidelines for IEP Teams to apply in determining whether these modified
academic achievement standards are appropriate for particular students
with disabilities. The Department will provide non-regulatory guidance
regarding alternate assessments and modified academic achievement
standards that States can use in developing their IEP Team guidelines.

We assume States that elect to take advantage of this new flexibility to
use modified academic achievement standards and assessments based on
these standards will do so because they believe they will realize net
benefits, primarily because of the benefits to students of being more
appropriately assessed and, secondarily, because of the effect on AYP
determinations. The benefits to States from adopting assessments based
on modified academic achievement standards depend on such factors as
whether the State has implemented assessments based on alternate
academic achievement standards and whether the assessments are adaptable
to a wide range of abilities, and the extent to which students with
disabilities are able to participate appropriately in the State's
general assessments. It also will depend, in part, on the extent to
which the scores for the 2.0 percent of students affected by these
regulations increase enough to meet the AYP goals for schools currently
in need of improvement. Testing data for the 2003-2004 school year for
33 States for the Department's "Study of State Implementation of
Accountability and Teacher Quality Under NCLB," published in the
"National Assessment of Title I Interim Report: Volume I; Implementation
of Title I," indicates that 13.0 percent of schools missed AYP solely
due to the achievement of the students with disabilities subgroup. Under
Title I, LEAs are required to spend an amount equal to 20.0 percent of
their Title I allocations to fund supplemental services and
choice-related transportation in schools that fail to make AYP for two
or more consecutive years and are identified for improvement. LEAs will
have greater flexibility in the use of their Title I allocations if
fewer schools miss AYP goals and are subject to consequences as a school
in need of improvement.

States that decide to adopt modified academic achievement standards and
implement alternate assessments based on those standards will be able to
use funds from Title I, Title VI State Assessment Grants, and IDEA
programs to finance those activities. The costs of developing and
implementing assessments vary considerably but are modest when compared
to the amounts available under Federal programs that States can draw on
for test development and implementation. The fiscal year 2007
appropriation for Title I Grants to Local Educational Agencies is
approximately \$12.8 billion, and States could reserve approximately 1
percent of this amount for administrative expenses, including paying the
costs of developing assessments. The appropriation for IDEA Grants to
States is \$10.8 billion, and States could reserve more than \$900
million for such activities as the development and provision of
appropriate accommodations and assessments of children with disabilities
under Title I. For State Assessment Grants, the appropriation is \$408
million. The Department believes that the regulations will not impose a
financial burden that States and LEAs will have to meet from non-Federal
sources.

For purposes of the Unfunded Mandates Reform Act of 1995, these
regulations do not include a Federal mandate that might result in
increased expenditures by State, local, and tribal governments, or
increased expenditures by the private sector of more than \$100 million
in any one year.

[Regulatory Flexibility Act Certification]{.underline}

The Secretary certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.
These provisions require States and LEAs to take certain actions only if
States choose to implement the flexibility these regulations afford. The
Department believes that these activities will be financed through the
appropriations for Title I and the IDEA and that the responsibilities
encompassed in these laws and regulations will not impose a financial
burden that States and LEAs will have to meet from non-Federal sources.

# Paperwork Reduction Act of 1995

There are several sections of the revised Title I regulations (§§200.1,
200.6, and 200.20) and one section of the revised IDEA regulations
(§300.160) that require collection of information under the Paperwork
Reduction Act. The following chart describes those regulatory sections,
the information being collected, and the collections the Department will
submit to the Office of Management and Budget for approval and public
comment. Separate notices will be published in the [Federal
Register]{.underline} requesting comment on these collections.

+----------------+--------------------------+--------------------------+
| Regulatory     | # Collection Information | Collection               |
| Section        |                          |                          |
+----------------+--------------------------+--------------------------+
| §200.1(f)      | Requires SEAs opting for | Information collection   |
|                | the flexibility offered  | 1810-0576, "Consolidated |
|                | by these regulations to  | State Application."      |
|                | develop and monitor the  |                          |
|                | implementation of clear  |                          |
|                | guidelines for IEP Teams |                          |
|                | to apply in determining  |                          |
|                | students who will be     |                          |
|                | assessed based on        |                          |
|                | modified academic        |                          |
|                | achievement standards.   |                          |
+----------------+--------------------------+--------------------------+
| §200.6(a)(4)   | Requires SEAs to report  | Information collection   |
| and            | in their annual State    | 1875-0240, "Annual       |
| §300.160(f)(3) | performance reports the  | Mandatory Collection of  |
|                | total number and         | Elementary and Secondary |
|                | percentage of students   | Education Data for       |
|                | tested in math and       | ED[Facts]{.underline}."  |
|                | reading with alternate   |                          |
|                | assessments based on     |                          |
|                | modified academic        |                          |
|                | achievement standards.   |                          |
+----------------+--------------------------+--------------------------+
| §200.20        | Permits SEAs and LEAs to | Information collection   |
|                | include the scores of    | 1810-0581, "State        |
|                | former students with     | Educational Agency and   |
|                | disabilities in the      | Local Educational Agency |
|                | students with            | and School Data          |
|                | disabilities subgroup    | Collection and Reporting |
|                | when reporting AYP on    | under ESEA, Title I,     |
|                | SEA and LEA report       | Part A."                 |
|                | cards.                   |                          |
+----------------+--------------------------+--------------------------+

# 

# Federalism

Executive Order 13132 requires us to ensure meaningful and timely input
by State and local elected officials in the development of regulatory
policies that have Federalism implications. "Federalism implications"
means substantial direct effects on the States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.

The need for the NPRM was raised to the Department by State and LEA
assessment professionals who were concerned that the assessment
alternatives contemplated in the existing Title I regulations (regular
assessments based on grade-level academic achievement standards and
alternate assessments for students with the most significant cognitive
disabilities), and reflected in the IDEA, did not recognize that there
was a group of students with disabilities who were not the most
significantly cognitively disabled, but who could not achieve to
grade-level academic achievement standards. Based on the concerns
raised, the Department convened several meetings with State and LEA
officials, parents of students with disabilities, and researchers to
learn more about the issues involved in assessing students with
disabilities, the concerns of parents and advocates for ensuring that
all students with disabilities be held to high academic achievement
standards, and about how some States were designing assessments for
students with disabilities. In issuing the NPRM, however, we did not
believe that the proposed regulations had Federalism implications as
defined in the Executive order.

We received several comments on Federalism issues. First, several
commenters stated that proposed §200.1(e)(1)(iii), which would require
that modified academic achievement standards not preclude a student from
earning a regular high school diploma, would be an intrusion into State
graduation standards if a State was required to diminish its standards
for a regular diploma to include students who are assessed based on
modified academic achievement standards. As we have stated elsewhere in
this preamble, the intent of proposed §200.1(e)(1)(iii) was not to
require States to alter their graduation requirements or to provide a
regular high school diploma to a student who scores proficient on an
alternate assessment based on modified academic achievement standards.
Rather, we wanted to ensure that a student is not automatically
precluded from attempting to earn a regular high school diploma simply
because the student was assessed based on modified academic achievement
standards. To clarify our intent, we have removed proposed
§200.1(e)(1)(iii) and replaced it with §200.1(f)(2)(iv), which requires
a State to ensure that students who take alternate assessments based on
modified academic achievement standards are not precluded from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma.

Second, a few commenters stated that the criteria we proposed for
modified academic achievement standards were too prescriptive and that
States should have the flexibility to develop modified academic
achievement standards in ways that meet their needs. As we stated
elsewhere in this preamble, we do not agree with these commenters. We
believe that allowing States to develop modified academic achievement
standards without placing any parameters or restrictions on their use
would likely result in lowered expectations for this group of students
and limit opportunities for these students to access grade-level content
and meet grade-level achievement standards.

Taking into account these comments, and these final regulations, we
believe that we have sufficiently addressed any Federalism concerns
raised by the commenters with respect to Executive Order 13132.

[Electronic Access to This Document]{.underline}

You may view this document, as well as all other Department of Education
documents published in the [Federal Register]{.underline}, in text or
Adobe Portable Document Format (PDF) on the Internet at the following
site: http://www.ed.gov/news/fedregister.

To use PDF, you must have Adobe Acrobat Reader, which is available free
at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.

[Note]{.underline}: The official version of this document is the
document published in the [Federal Register]{.underline}. Free Internet
access to the official edition of the [Federal Register]{.underline} and
the Code of Federal Regulations is available on GPO Access at:
http://www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Numbers: 84.010 Improving
Programs Operated by Local Educational Agencies; 84.027 Assistance to
States for the Education of Children with Disabilities)

List of Subjects

# 34 CFR Part 200

Administrative practice and procedure, Adult education, Children,
Education of children with disabilities, Education of disadvantaged
children, Elementary and secondary education, Eligibility,
Family-centered education, Grant programs -- education,
Indians\--education, Institutions of higher education, Local educational
agencies, Nonprofit private agencies, Private schools, Public agencies,
Reporting and recordkeeping requirements, State-administered programs,
State educational agencies.

# 34 CFR Part 300

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

Dated:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Margaret Spellings,

[Secretary of Education]{.underline}.

For the reasons discussed in the preamble, the Secretary amends parts
200 and 300 of title 34 of the Code of Federal Regulations as follows:

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

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

Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.

2\. Section 200.1 is amended by:

A. Revising paragraphs (a)(1) and (a)(2).

B. Redesignating paragraphs (e) and (f) as paragraphs (g) and (h),
respectively.

C. Adding new paragraphs (e) and (f).

The revisions and additions read as follows:

[§200.1 State responsibilities for developing challenging academic
standards]{.underline}.

\(a\) \* \* \*

\(1\) Be the same academic content and academic achievement standards
that the State applies to all public schools and public school students
in the State, including the public schools and public school students
served under subpart A of this part, except as provided in paragraphs
(d) and (e) of this section, which apply only to the State's academic
achievement standards;

\(2\) Include the same knowledge and skills expected of all students and
the same levels of achievement expected of all students, except as
provided in paragraphs (d) and (e) of this section; and

\* \* \* \* \*

\(e\) [Modified academic achievement standards]{.underline}. (1) For
students with disabilities under section 602(3) of the Individuals with
Disabilities Education Act (IDEA) who meet the State\'s criteria under
paragraph (e)(2) of this section, a State may define modified academic
achievement standards, provided those standards\--

\(i\) Are aligned with the State\'s academic content standards for the
grade in which the student is enrolled;

\(ii\) Are challenging for eligible students, but may be less difficult
than the grade-level academic achievement standards under paragraph (c)
of this section;

\(iii\) Include at least three achievement levels; and

\(iv\) Are developed through a documented and validated
standards-setting process that includes broad stakeholder input,
including persons knowledgeable about the State's academic content
standards and experienced in standards setting and special educators who
are most knowledgeable about students with disabilities.

\(2\) In the guidelines that a State establishes under paragraph (f)(1)
of this section, the State must include criteria for IEP teams to use in
determining which students with disabilities are eligible to be assessed
based on modified academic achievement standards. Those criteria must
include, but are not limited to, each of the following:

\(i\) The student\'s disability has precluded the student from achieving
grade-level proficiency, as demonstrated by such objective evidence as
the student's performance on\--

\(A\) The State\'s assessments described in §200.2; or

\(B\) Other assessments that can validly document academic achievement.

(ii)(A) The student\'s progress to date in response to appropriate
instruction, including special education and related services designed
to address the student\'s individual needs, is such that, even if
significant growth occurs, the IEP team is reasonably certain that the
student will not achieve grade-level proficiency within the year covered
by the student\'s IEP.

\(B\) The determination of the student\'s progress must be based on
multiple measurements, over a period of time, that are valid for the
subjects being assessed.

\(iii\) If the student's IEP includes goals for a subject assessed under
§200.2, those goals must be based on the academic content standards for
the grade in which the student is enrolled, consistent with paragraph
(f)(2) of this section.

\(f\) [State guidelines]{.underline}. If a State defines alternate or
modified academic achievement standards under paragraph (d) or (e) of
this section, the State must do the following\--

\(1\) For students who are assessed based on either alternate or
modified academic achievement standards, the State must\--

\(i\) Establish and monitor implementation of clear and appropriate
guidelines for IEP teams to apply in determining\--

\(A\) Students with the most significant cognitive disabilities who will
be assessed based on alternate academic achievement standards; and

\(B\) Students with disabilities who meet the criteria in paragraph
(e)(2) of this section who will be assessed based on modified academic
achievement standards. These students may be assessed based on modified
academic achievement standards in one or more subjects for which
assessments are administered under §200.2;

\(ii\) Inform IEP teams that students eligible to be assessed based on
alternate or modified academic achievement standards may be from any of
the disability categories listed in the IDEA;

\(iii\) Provide to IEP teams a clear explanation of the differences
between assessments based on grade-level academic achievement standards
and those based on modified or alternate academic achievement standards,
including any effects of State and local policies on the student's
education resulting from taking an alternate assessment based on
alternate or modified academic achievement standards (such as whether
only satisfactory performance on a regular assessment would qualify a
student for a regular high school diploma); and

\(iv\) Ensure that parents of students selected to be assessed based on
alternate or modified academic achievement standards under the State's
guidelines in this paragraph are informed that their child\'s
achievement will be measured based on alternate or modified academic
achievement standards.

\(2\) For students who are assessed based on modified academic
achievement standards, the State must\--

\(i\) Inform IEP teams that a student may be assessed based on modified
academic achievement standards in one or more subjects for which
assessments are administered under §200.2;

\(ii\) Establish and monitor implementation of clear and appropriate
guidelines for IEP teams to apply in developing and implementing IEPs
for students who are assessed based on modified academic achievement
standards. These students' IEPs must\--

\(A\) Include IEP goals that are based on the academic content standards
for the grade in which a student is enrolled; and

\(B\) Be designed to monitor a student's progress in achieving the
student's standards-based goals;

\(iii\) Ensure that students who are assessed based on modified academic
achievement standards have access to the curriculum, including
instruction, for the grade in which the students are enrolled;

\(iv\) Ensure that students who take alternate assessments based on
modified academic achievement standards are not precluded from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma; and

\(v\) Ensure that each IEP team reviews annually for each subject,
according to the criteria in paragraph (e)(2) of this section, its
decision to assess a student based on modified academic achievement
standards to ensure that those standards remain appropriate.

\* \* \* \* \*

3\. Section 200.6 is amended by:

A. Revising paragraph (a)(1) and (a)(2)(iii).

B. Adding paragraphs (a)(3) and (a)(4).

The revisions and additions read as follows:

[§200.6 Inclusion of all students]{.underline}.

\* \* \* \* \*

\(a\) [Students eligible under IDEA and Section 504]{.underline}. (1)
[Appropriate accommodations]{.underline}. (i) A State\'s academic
assessment system must provide\--

\(A\) For each student with a disability, as defined under section
602(3) of the IDEA, appropriate accommodations that the student\'s IEP
team determines are necessary to measure the academic achievement of the
student relative to the State\'s academic content and academic
achievement standards for the grade in which the student is enrolled,
consistent with §200.1(b)(2), (b)(3), and (c); and

\(B\) For each student covered under section 504 of the

Rehabilitation Act of 1973, as amended (Section 504), appropriate
accommodations that the student\'s placement team determines are
necessary to measure the academic achievement of the student relative to
the State\'s academic content and academic achievement standards for the
grade in which the student is enrolled, consistent with §200.1(b)(2),
(b)(3), and (c).

\(ii\) A State must\--

\(A\) Develop, disseminate information on, and promote the use of
appropriate accommodations to increase the number of students with
disabilities who are tested against academic achievement standards for
the grade in which a student is enrolled; and

\(B\) Ensure that regular and special education teachers and other
appropriate staff know how to administer assessments, including making
appropriate use of accommodations, for students with disabilities and
students covered under Section 504.

\(2\) \* \* \*

\(iii\) If a State permits the use of alternate assessments that yield
results based on alternate academic achievement standards, the State
must document that students with the most significant cognitive
disabilities are, to the extent possible, included in the general
curriculum.

\(3\) [Alternate assessments that are based on modified academic
achievement standards]{.underline}. (i) To assess students with
disabilities based on modified academic achievement standards, a State
may develop a new alternate assessment or adapt an assessment based on
grade-level academic achievement standards.

\(ii\) An alternate assessment under paragraph (a)(3)(i) of this section
must\--

\(A\) Be aligned with the State\'s grade-level academic content
standards;

\(B\) Yield results that measure the achievement of those students
separately in reading/language arts and mathematics relative to the
modified academic achievement standards;

\(C\) Meet the requirements in §§200.2 and 200.3, including the
requirements relating to validity, reliability, and high technical
quality; and

\(D\) Fit coherently in the State\'s overall assessment system under
§200.2.

\(4\) [Reporting]{.underline}. A State must report separately to the
Secretary, under section 1111(h)(4) of the Act, the number and
percentage of students with disabilities taking\--

\(i\) Regular assessments described in §200.2;

\(ii\) Regular assessments with accommodations;

\(iii\) Alternate assessments based on the grade-level academic
achievement standards described in §200.1(c);

\(iv\) Alternate assessments based on the modified academic achievement
standards described in §200.1(e); and

\(v\) Alternate assessments based on the alternate academic achievement
standards described in §200.1(d).

\* \* \* \* \*

4\. Section 200.7 is amended by redesignating paragraph (a)(2) as
(a)(2)(i) and adding a new paragraph (a)(2)(ii) to read as follows:

[§200.7 Disaggregation of data]{.underline}.

\(a\) \* \* \*

(2)(i) \* \* \*

\(ii\) Beginning with AYP decisions that are based on the assessments
administered in the 2007-08 school year, a State may not establish a
different minimum number of students under paragraph (a)(2)(i) of this
section for separate subgroups under §200.13(b)(7)(ii) or for the school
as a whole.

\* \* \* \* \*

5\. Section 200.13 is amended by:

A. Revising paragraph (c).

B. Adding an appendix at the end of the section.

The revisions and addition read as follows:

[§200.13 Adequate yearly progress in general]{.underline}.

\* \* \* \* \*

(c)(1) In calculating AYP for schools, LEAs, and the State, a State
must, consistent with §200.7(a), include the scores of all students with
disabilities.

\(2\) With respect to scores based on alternate or modified academic
achievement standards, a State may include\--

\(i\) The proficient and advanced scores of students with the most
significant cognitive disabilities based on the alternate academic
achievement standards described in §200.1(d), provided that the number
of those scores at the LEA and at the State levels, separately, does not
exceed 1.0 percent of all students in the grades assessed in
reading/language arts and in mathematics; and

\(ii\) The proficient and advanced scores of students with disabilities
based on the modified academic achievement standards described in
§200.1(e)(1), provided that the number of those scores at the LEA and at
the State levels, separately, does not exceed 2.0 percent of all
students in the grades assessed in reading/language arts and in
mathematics.

\(3\) A State\'s or LEA\'s number of proficient and advanced scores of
students with disabilities based on the modified academic achievement
standards described in §200.1(e)(1) may exceed 2.0 percent of all
students in the grades assessed if the number of proficient and advanced
scores based on the alternate academic achievement standards described
in §200.1(d) is less than 1.0 percent, provided the number of proficient
and advanced scores based on modified and alternate academic achievement
standards combined does not exceed 3.0 percent of all students in the
grades assessed.

\(4\) A State may not request from the Secretary an exception permitting
it to exceed the caps on proficient and advanced scores based on
alternate or modified academic achievement standards under paragraph
(c)(2) and (3) of this section.

(5)(i) A State may grant an exception to an LEA permitting it to exceed
the 1.0 percent cap on proficient and advanced scores based on the
alternate academic achievement standards described in paragraph
(c)(2)(i) of this section only if\--

\(A\) The LEA demonstrates that the incidence of students with the most
significant cognitive disabilities exceeds 1.0 percent of all students
in the combined grades assessed;

\(B\) The LEA explains why the incidence of such students exceeds 1.0
percent of all students in the combined grades assessed, such as school,
community, or health programs in the LEA that have drawn large numbers
of families of students with the most significant cognitive
disabilities, or that the LEA has such a small overall student
population that it would take only a few students with such disabilities
to exceed the 1.0 percent cap; and

\(C\) The LEA documents that it is implementing the State\'s guidelines
under §200.1(f).

\(ii\) The State must review regularly whether an LEA\'s exception to
the 1.0 percent cap is still warranted.

\(6\) A State may not grant an exception to an LEA to exceed the 2.0
percent cap on proficient and advanced scores based on modified academic
achievement standards under paragraph (c)(2)(ii) of this section, except
as provided in paragraph (c)(3) of this section.

\(7\) In calculating AYP, if the percentage of proficient and advanced
scores based on alternate or modified academic achievement standards
under §200.1(d) or (e) exceeds the caps in paragraph (c) of this section
at the State or LEA level, the State must do the following:

\(i\) Consistent with §200.7(a), include all scores based on alternate
and modified academic achievement standards.

\(ii\) Count as non-proficient the proficient and advanced scores that
exceed the caps in paragraph (c) of this section.

\(iii\) Determine which proficient and advanced scores to count as
non-proficient in schools and LEAs responsible for students who are
assessed based on alternate or modified academic achievement standards.

\(iv\) Include non-proficient scores that exceed the caps in paragraph
(c) of this section in each applicable subgroup at the school, LEA, and
State level.

\(v\) Ensure that parents of a child who is assessed based on alternate
or modified academic achievement standards are informed of the actual
academic achievement levels of their child.

\* \* \* \* \*

Appendix to §200.13\--When May a State or LEA Exceed the 1% and 2% Caps?

The following table provides a summary of the circumstances in which a
State or LEA may exceed the 1% and 2% caps described in §200.13.

When May a State or LEA Exceed the 1% and 2% Caps?

+--------+------------------+--------------------+--------------------+
|        | Alternate        | Modified Academic  | Alternate and      |
|        | Academic         | Achievement        | Modified Academic  |
|        | Achievement      | Standards\--2% Cap | Achievement        |
|        | Standards\--1%   |                    | Standards\--3%     |
|        | Cap              |                    |                    |
+--------+------------------+--------------------+--------------------+
| #      | Not permitted.   | Only if State is   | Not permitted.     |
|  State |                  | below 1% cap, but  |                    |
|        |                  | cannot exceed 3%.  |                    |
+--------+------------------+--------------------+--------------------+
| #####  | Only if granted  | Only if LEA is     | Only if granted an |
| ## LEA | an exception by  | below 1% cap, but  | exception to the   |
|        | the SEA.         | cannot exceed 3%.  | 1% cap by the SEA, |
|        |                  |                    | and only by the    |
|        |                  |                    | amount of the      |
|        |                  |                    | exception.         |
+--------+------------------+--------------------+--------------------+

6\. Section 200.20 is amended by:

A. Revising paragraph (c)(3).

B.  Revising paragraph (f)(2).

C.  Adding a new paragraph (g).

The revisions and addition read as follows:

[§200.20 Making adequate yearly progress]{.underline}.

\* \* \* \* \*

> (c)\*\*\*

\(3\) To count a student who is assessed based on alternate or modified
academic achievement standards described in §200.1(d) or (e) as a
participant for purposes of meeting the requirements of this paragraph,
the State must have, and ensure that its LEAs adhere to, guidelines that
meet the requirements of §200.1(f).

\* \* \* \* \*

(f)\*\*\*

(2)(i) In determining AYP for the subgroup of limited English proficient
students and the subgroup of students with disabilities, a State may
include, for up to two AYP determination cycles, the scores of\--

\(A\) Students who were limited English proficient but who no longer
meet the State's definition of limited English proficiency; and

\(B\) Students who were previously identified under section 602(3) of
the IDEA but who no longer receive special education services.

\(ii\) If a State, in determining AYP for the subgroup of limited
English proficient students and the subgroup of students with
disabilities, includes the scores of the students described in paragraph
(f)(2)(i) of this section, the State must include the scores of all such
students, but is not required to\--

\(A\) Include those students in the limited English proficient subgroup
or in the students with disabilities subgroup in determining if the
number of limited English proficient students or students with
disabilities, respectively, is sufficient to yield statistically
reliable information under §200.7(a); or

\(B\) With respect to students who are no longer limited English
proficient\--

([1]{.underline}) Assess those students' English language proficiency
under §200.6(b)(3); or

([2]{.underline}) Provide English language services to those students.

\(iii\) For the purpose of reporting information on report cards under
section 1111(h) of the Act\--

\(A\) A State may include the scores of former limited English
proficient students and former students with disabilities as part of the
limited English proficient and students with disabilities subgroups,
respectively, for the purpose of reporting AYP at the State level under
section 1111(h)(1)(C)(ii) of the Act;

\(B\) An LEA may include the scores of former limited English proficient
students and former students with disabilities as part of the limited
English proficient and students with disabilities subgroups,
respectively, for the purpose of reporting AYP at the LEA and school
levels under section 1111(h)(2)(B) of the Act; but

\(C\) A State or LEA may not include the scores of former limited
English proficient students or former students with disabilities as part
of the limited English proficient or students with disabilities
subgroup, respectively, in reporting any other information under section
1111(h) of the Act.

\(g\) [Transition provision regarding modified academic achievement
standards]{.underline}. The Secretary may provide a State that is moving
expeditiously to adopt and administer alternate assessments based on
modified academic achievement standards flexibility in accounting for
the achievement of students with disabilities in AYP determinations that
are based on assessments administered in 2007-08 and 2008-09. To be
eligible for this flexibility, a State must meet criteria, as the
Secretary determines appropriate, for each year for which the
flexibility is available.

7\. Section 200.103 is amended by adding a new paragraph (c) to read as
follows:

[§200.103 Definitions]{.underline}.

\* \* \* \* \*

\(c\) [Student with a disability]{.underline} means child with a
disability, as defined in section 602(3) of the IDEA.

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

8\. The authority citation for part 300 is revised to read as follows:

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

9\. A new §300.160 is added to read as follows:

[§300.160 Participation in assessments]{.underline}.

\(a\) [General]{.underline}. A State must ensure that all children with
disabilities are included in all general State and district-wide
assessment programs, including assessments described under section 1111
of the ESEA, 20 U.S.C. 6311, with appropriate accommodations and
alternate assessments, if necessary, as indicated in their respective
IEPs.

\(b\) [Accommodation guidelines]{.underline}. (1) A State (or, in the
case of a district-wide assessment, an LEA) must develop guidelines for
the provision of appropriate accommodations.

\(2\) The State\'s (or, in the case of a district-wide assessment, the
LEA\'s) guidelines must\--

\(i\) Identify only those accommodations for each assessment that do not
invalidate the score; and

\(ii\) Instruct IEP Teams to select, for each assessment, only those
accommodations that do not invalidate the score.

\(c\) [Alternate assessments]{.underline}. (1) A State (or, in the case
of a district-wide assessment, an LEA) must develop and implement
alternate assessments and guidelines for the participation of children
with disabilities in alternate assessments for those children who cannot
participate in regular assessments, even with accommodations, as
indicated in their respective IEPs, as provided in paragraph (a) of this
section.

\(2\) For assessing the academic progress of students with disabilities
under Title I of the ESEA, the alternate assessments and guidelines in
paragraph (c)(1) of this section must provide for alternate assessments
that\--

\(i\) Are aligned with the State\'s challenging academic content
standards and challenging student academic achievement standards;

\(ii\) If the State has adopted modified academic achievement standards
permitted in 34 CFR §200.1(e), measure the achievement of children with
disabilities meeting the State's criteria under §200.1(e)(2) against
those standards; and

\(iii\) If the State has adopted alternate academic achievement
standards permitted in 34 CFR §200.1(d), measure the achievement of
children with the most significant cognitive disabilities against those
standards.

\(d\) [Explanation to IEP Teams]{.underline}. A State (or in the case of
a district-wide assessment, an LEA) must provide IEP Teams with a clear
explanation of the differences between assessments based on grade-level
academic achievement standards and those based on modified or alternate
academic achievement standards, including any effects of State or local
policies on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement standards
(such as whether only satisfactory performance on a regular assessment
would qualify a student for a regular high school diploma).

\(e\) [Inform parents]{.underline}. A State (or in the case of a
district-wide assessment, an LEA) must ensure that parents of students
selected to be assessed based on alternate or modified academic
achievement standards are informed that their child's achievement will
be measured based on alternate or modified academic achievement
standards.

\(f\) [Reports]{.underline}. An SEA (or, in the case of a district-wide
assessment, an LEA) must make available to the public, and report to the
public with the same frequency and in the same detail as it reports on
the assessment of nondisabled children, the following:

\(1\) The number of children with disabilities participating in regular
assessments, and the number of those children who were provided
accommodations (that did not result in an invalid score) in order to
participate in those assessments.

\(2\) The number of children with disabilities, if any, participating in
alternate assessments based on grade-level academic achievement
standards.

\(3\) The number of children with disabilities, if any, participating in
alternate assessments based on modified academic achievement standards.

\(4\) The number of children with disabilities, if any, participating in
alternate assessments based on alternate academic achievement standards.

\(5\) Compared with the achievement of all children, including children
with disabilities, the performance results of children with disabilities
on regular assessments, alternate assessments based on grade-level
academic achievement standards, alternate assessments based on modified
academic achievement standards, and alternate assessments based on
alternate academic achievement standards if\--

\(i\) The number of children participating in those assessments is
sufficient to yield statistically reliable information; and

\(ii\) Reporting that information will not reveal personally
identifiable information about an individual student on those
assessments.

\(g\) [Universal design]{.underline}. An SEA (or, in the case of a
district-wide assessment, an LEA) must, to the extent possible, use
universal design principles in developing and administering any
assessments under this section.

(Authority: 20 U.S.C. 1412(a)(16))

[^1]: AERA, APA, & NCME. (1999). (American Educational Research
    Association, American Psychological Association, & National Council
    on Measurement in Education) Joint Committee on Standards for
    Educational and Psychological Testing. Standards for educational and
    psychological testing. Washington, DC: AERA.

[^2]: Ahearn, E. (2006). [Standards-based IEPs: Implementation in
    Selected States]{.underline}. National Association of State
    Directors of Special Education, 1800 Diagonal Road, Suite 320,
    Alexandria, VA 22314.

[^3]: Current §200.6(a)(2)(iii) was finalized in the December 9, 2003
    regulations for students with the most significant cognitive
    disabilities (68 FR 68698).

[^4]: [See]{.underline} section 614(d)(1)(A)(i)(IV)(bb) of the IDEA.

[^5]: Alternate Achievement Standards for Students with the Most
    Significant Cognitive Disabilities (August, 2005) is available at
    http://www.ed.gov/policy/elsec/guid/altguidance.doc.

[^6]: [Standards and assessment peer review guidance: Information and
    examples for meeting requirements of the No Child Left Behind Act of
    2001]{.underline}, (April 28, 2004). Available at
    http://www.ed.gov/policy/elsec/guid/saaprguidance.doc

[^7]: Clapper, A.T., Morse, A.B., Lazarus, S.S., Thompson, S.J., &
    Thurlow, M.L. (2005). [2003 State policies on assessment
    participation and accommodations for students with disabilities
    (Synthesis Report
    56)](http://www.education.umn.edu/nceo/OnlinePubs/Synthesis56.html).
    Minneapolis, MN: University of Minnesota, National Center on
    Educational Outcomes.

[^8]: Posny, A. (2004). [Clash of the titans: No child left behind and
    students with disabilities]{.underline}*.* Paper presented at the
    Center on Education Policy's forum on ideas to improve the NCLB
    accountability provisions for students with disabilities and English
    language learners, September 14, 2004, Washington, D.C. Available
    at:
    <http://www.cep-c.org/pubs/Forum14September2004/PochowskiPaper.pdf>

[^9]: McMaster, K.L., Fuchs, D., Fuchs, L.S., & Compton, D.L. (2005).
    Responding to non-responders: An experimental field trial of
    identification and intervention methods. [Exceptional
    Children]{.underline}, [71]{.underline}, 445-463; Torgensen, J.K.,
    Alexander, A.W., Wagner, R.K., Rashotee, C.A., Voeller, K.K.S., &
    Conway, T. (2001). Intensive remedial instruction for children with
    severe reading disabilities: Immediate and long-term outcomes from
    two instructional approaches. [Journal of Learning
    Disabilities]{.underline}, 34, 33-58; Lyon, G.R., Fletcher, J.M.,
    Fuchs, L.S., & Chhabra, V. (in press). Learning Disabilities. In E.
    Mash & R. Barkley (Eds.), [Treatment of Childhood
    Disorders]{.underline} (2^nd^ ed.) New York: Guilford Press.

[^10]: Common Core of Data (CCD), "State Nonfiscal Survey of Public
    Elementary/Secondary Education, 2004-05 v.1c, National Center for
    Education Statistics, U.S. Department of Education.

[^11]: U.S. Government Accountability Office, Report 03-389, pg. 17.

[^12]: We received a comment from one State indicating that the cost of
    developing its assessments was approximately \$250,000. However, we
    do not have any information about how that figure was derived and
    have, therefore, declined to use that estimate in this analysis.

[^13]: GAO reported test development expenditures of \$190,870 for the
    State of Massachusetts.