4/19/2016 Final Consensus-Based Language 1

1 The negotiating committee reached consensus on the following 

2 regulatory language relating to Title I, Part A assessments:

3

4 §200.2 State responsibilities for assessment.

5 (a)(1) Each State, in consultation with its LEAs, must 

6 implement a system of high-quality, yearly student academic 

7 assessments that includes, at a minimum, academic assessments in 

8 mathematics, reading/language arts, and science. 

9 (2)(i) The State may also measure the achievement of 

10 students in other academic subjects in which the State has 

11 adopted challenging State academic standards. 

12 (ii) If a State has developed assessments in other subjects 

13 for all students, the State must include students participating 

14 under subpart A of this part in those assessments. 

15 (b) The assessments required under this section must--

16 (1)(i) Except as provided in §§200.3, 200.5(b), and 200.6(c) 

17 and section 1204 of the Act, be the same assessments used to 

18 measure the achievement of all students; and

19 (ii) Be administered to all students consistent with 

20 §200.5(a);

21 (2)(i) Be designed to be valid and accessible for use by all 

22 students, including students with disabilities and English 

23 learners; and

24 (ii) Be developed, to the extent practicable, using the 

25 principles of universal design for learning. For the purposes 

26 of this section, “universal design for learning” means a 

27 scientifically valid framework for guiding educational practice 

28 that--

29 (A) Provides flexibility in the ways information is 

30 presented, in the ways students respond or demonstrate knowledge 

31 and skills, and in the ways students are engaged; and

32 (B) Reduces barriers in instruction, provides appropriate 

33 accommodations, supports, and challenges, and maintains high 

34 achievement expectations for all students, including students 

35 with disabilities and English learners;

36 (3)(i)(A) Be aligned with the challenging State academic 

37 standards; and

38 (B) Provide coherent and timely information about student 

39 attainment of those standards and whether a student is 

40 performing at the grade level in which the student is enrolled;

41 (ii)(A)(1) Be aligned with the challenging State academic 

42 content standards; and 

43 (2) Address the depth and breadth of those standards; and

44 (B)(1) Measure student performance based on challenging 

45 State academic achievement standards that are aligned with 

46 entrance requirements for credit-bearing coursework in the 

47 system of public higher education in the State and relevant 
4/19/2016 Final Consensus-Based Language 2

1 State career and technical education standards consistent with 

2 section 1111(b)(1)(D) of the Act; or

3 (2) With respect to alternate assessments for students with 

4 the most significant cognitive disabilities, measure student 

5 performance based on alternate academic achievement standards 

6 defined by the State consistent with section 1111(b)(1)(E) of 

7 the Act that reflect professional judgment as to the highest 

8 possible standards achievable by such students to ensure that a 

9 student who meets the alternate academic achievement standards 

10 is on track to pursue postsecondary education or competitive, 

11 integrated employment, consistent with the purposes of the 

12 Rehabilitation Act of 1973, as amended by the Workforce 

13 Innovation and Opportunity Act, as in effect on July 22, 2014; 

14 and 

15 (4)(i) Be valid, reliable, and fair for the purposes for 

16 which the assessments are used; and 

17 (ii) Be consistent with relevant, nationally recognized 

18 professional and technical testing standards;

19 (5) Be supported by evidence that--

20 (i) The assessments are of adequate technical quality--

21 (A) For each purpose required under the Act; and 

22 (B) Consistent with the requirements of this section; and

23 (ii) Is made available to the public, including on the 

24 State’s Web site;

25 (6) Be administered in accordance with the frequency 

26 described in §200.5(a);

27 (7) Involve multiple up-to-date measures of student academic 

28 achievement, including measures that assess higher-order 

29 thinking skills and understanding of challenging content, as 

30 defined by the State. These measures may--

31 (i) Include valid and reliable measures of student academic 

32 growth at all achievement levels to help ensure that the 

33 assessment results could be used to improve student instruction; 

34 and

35 (ii) Be partially delivered in the form of portfolios, 

36 projects, or extended performance tasks;

37 (8) Objectively measure academic achievement, knowledge, and 

38 skills without evaluating or assessing personal or family 

39 beliefs and attitudes, except that this provision does not 

40 preclude the use of--

41 (i) Constructed-response, short answer, or essay questions; 

42 or 

43 (ii) Items that require a student to analyze a passage of 

44 text or to express opinions;

45 (9) Provide for participation in the assessments of all 

46 students in the grades assessed consistent with §§200.5(a) and 

47 200.6;
4/19/2016 Final Consensus-Based Language 3

1 (10) At the State’s discretion, be administered through--

2 (i) A single summative assessment; or

3 (ii) Multiple statewide interim assessments during the 

4 course of the academic year that result in a single summative 

5 score that provides valid, reliable, and transparent information 

6 on student achievement and, at the State’s discretion, student 

7 growth, consistent with paragraph (b)(4) of this section;

8 (11) Consistent with section 1111(b)(2)(B)(xi) and section 

9 1111(h)(1)(C)(ii) of the Act, enable results to be disaggregated 

10 within each State, LEA, and school by--

11 (i) Gender; 

12 (ii) Each major racial and ethnic group; 

13 (iii) Status as an English learner as defined in section 

14 8101(20) of the Act; 

15 (iv) Status as a migratory child as defined in section 

16 1309(3) of title I, part C of the Act;

17 (v) Children with disabilities as defined in section 602(3) 

18 of the Individuals with Disabilities Education Act (IDEA) as 

19 compared to all other students; 

20 (vi) Economically disadvantaged students as compared to 

21 students who are not economically disadvantaged;

22 (vii) Status as a homeless child or youth as defined in 

23 section 725(2) of title VII, subtitle B of the McKinney-Vento 

24 Homeless Assistance Act, as amended;

25 (viii) Status as a child in foster care. “Foster care”

26 means 24-hour substitute care for children placed away from 

27 their parents and for whom the agency under title IV-E of the 

28 Social Security Act has placement and care responsibility. This 

29 includes, but is not limited to, placements in foster family 

30 homes, foster homes of relatives, group homes, emergency 

31 shelters, residential facilities, child care institutions, and 

32 preadoptive homes. A child is in foster care in accordance with 

33 this definition regardless of whether the foster care facility 

34 is licensed and payments are made by the State, tribal, or local 

35 agency for the care of the child, whether adoption subsidy 

36 payments are being made prior to the finalization of an 

37 adoption, or whether there is Federal matching of any payments 

38 that are made; and

39 (ix) Status as a student with a parent who is a member of 

40 the armed forces on active duty or serves on full-time National 

41 Guard duty, where “armed forces,” “active duty,” and “full-time 

42 National Guard duty” have the same meanings given them in 10 

43 U.S.C. 101(a)(4), 101(d)(1), and 101(d)(5); 

44 (12) Produce individual student reports consistent with 

45 §200.8(a); and

46 (13) Enable itemized score analyses to be produced and 

47 reported to LEAs and schools consistent with §200.8(b).
4/19/2016 Final Consensus-Based Language 4

1 (c)(1) At its discretion, a State may administer the 

2 assessments required under this section in the form of computer3 adaptive assessments if such assessments meet the requirements 

4 of section 1111(b)(2)(J) of the Act and this section. A 

5 computer-adaptive assessment-–

6 (i) Must measure a student’s academic proficiency based on 

7 the challenging State academic standards for the grade in which 

8 the student is enrolled and growth toward those standards; and

9 (ii) May measure a student’s academic proficiency and growth 

10 using items above or below the student’s grade level. 

11 (2) If a State administers a computer-adaptive assessment, 

12 the determination under paragraph (b)(3)(i)(B) of this section 

13 of a student’s academic proficiency for the grade in which the 

14 student is enrolled must be reported on all reports required by 

15 §200.8 and section 1111(h) of the Act.

16 (d) A State must submit evidence for peer review under 

17 section 1111(a)(4) of the Act that its assessments under this 

18 section and §§200.3, 200.4, 200.5(b), 200.6(c), 200.6(f)(1) and 

19 (3), and 200.6(g) meet all applicable requirements.

20 (e) Information provided to parents under section 1111(b)(2) 

21 of the Act must--

22 (i) Be in an understandable and uniform format;

23 (ii) Be, to the extent practicable, written in a language 

24 that parents can understand or, if it is not practicable to 

25 provide written translations to a parent with limited English 

26 proficiency, be orally translated for such parent; and

27 (iii) Be, upon request by a parent who is an individual with 

28 a disability as defined by the Americans with Disabilities Act

29 (ADA), provided in an alternative format accessible to that 

30 parent.

31 (Authority: 10 U.S.C. 101(a)(4), (d)(1), and (d)(5); 20 U.S.C. 

32 1003(24), 6311(a)(4), 6311(b)(2), and 6399(3); 42 U.S.C. 11434a; 

33 and 45 CFR 1355(a))
4/19/2016 Final Consensus-Based Language 5

1 §200.3 Locally Selected, Nationally Recognized High School 

2 Academic Assessments.

3 (a) In general. (1) A State, at the State’s discretion, 

4 may permit an LEA to administer a nationally recognized high 

5 school academic assessment in each of reading/language arts, 

6 mathematics, or science, approved in accordance with paragraph 

7 (b) of this section, in lieu of the respective statewide 

8 assessment under §200.5(a)(1)(i)(B) and (a)(1)(ii)(C) if such 

9 assessment meets all requirements of this section.

10 (2) An LEA must administer the same locally selected, 

11 nationally recognized academic assessment to all high school 

12 students in the LEA consistent with the requirements in 

13 §200.5(a)(1)(i)(B) and (a)(1)(ii)(C), except for students with 

14 the most significant cognitive disabilities who are assessed on 

15 an alternate assessment aligned with alternate academic 

16 achievement standards, consistent with §200.6(c).

17 (b) State approval. If a State chooses to allow an LEA to 

18 administer a nationally recognized high school academic 

19 assessment under paragraph (a) of this section, the State must--

20 (1) Establish and use technical criteria to determine if the 

21 assessment--

22 (i) Is aligned with the challenging State academic 

23 standards;

24 (ii) Addresses the depth and breadth of those standards;

25 (iii) Is equivalent to or more rigorous than the statewide 

26 assessments under §200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as 

27 applicable, with respect to--

28 (A) The coverage of academic content;

29 (B) The difficulty of the assessment; 

30 (C) The overall quality of the assessment; and

31 (D) Any other aspects of the assessment that the State may 

32 establish in its technical criteria;

33 (iv) Meets all requirements under §200.2(b), except for 

34 §200.2(b)(1), and ensures that all high school students in the 

35 LEA are assessed consistent with §§200.5(a) and 200.6; and

36 (v) Produces valid and reliable data on student academic 

37 achievement with respect to all high school students and each 

38 subgroup of high school students in the LEA that--

39 (A) Are comparable to student academic achievement data for 

40 all high school students and each subgroup of high school 

41 students produced by the statewide assessment;

42 (B) Are expressed in terms consistent with the State’s 

43 academic achievement standards under section 1111(b)(1)(A) of 

44 the Act; and

45 (C) Provide unbiased, rational, and consistent 

46 differentiation among schools within the State for the purpose 
4/19/2016 Final Consensus-Based Language 6

1 of the State-determined accountability system under section 

2 1111(c) of the Act;

3 (2) Before approving any nationally recognized high school 

4 academic assessment for use by an LEA in the State--

5 (i) Ensure that the use of appropriate accommodations under 

6 §200.6(b) and (f) does not deny a student with a disability or 

7 an English learner--

8 (A) The opportunity to participate in the assessment; and

9 (B) Any of the benefits from participation in the assessment 

10 that are afforded to students without disabilities or students 

11 who are not English learners; and

12 (ii) Submit evidence to the Secretary in accordance with the 

13 requirements for peer review under section 1111(a)(4) of the Act 

14 demonstrating that any such assessment meets the requirements of

15 this section; and

16 (3) Approve an LEA’s request to use a locally selected, 

17 nationally recognized high school academic assessment that meets 

18 the requirements of this section.

19 (c) LEA applications. (1) Before an LEA requests 

20 approval from the State to use a locally selected, nationally 

21 recognized high school academic assessment, the LEA must--

22 (i) Notify all parents of high school students it serves--

23 (A) That the LEA intends to request approval from the State 

24 to use a locally selected, nationally recognized high school 

25 academic assessment in place of the statewide academic 

26 assessment under §200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as 

27 applicable;

28 (B) Of how parents may provide meaningful input regarding 

29 the LEA’s request; and

30 (C) Of any effect of such request on the instructional 

31 program in the LEA; and

32 (ii) Provide an opportunity for meaningful consultation to 

33 all public charter schools whose students would be included in 

34 such assessments.

35 (2) As part of requesting approval to use a locally 

36 selected, nationally recognized high school academic assessment, 

37 an LEA must--

38 (i) Update its LEA plan under section 1112 or section 8305 

39 of the Act, including to describe how the request was developed 

40 consistent with all requirements for consultation under sections 

41 1112 and 8538 of the Act; and

42 (ii) If the LEA is a charter school under State law, provide 

43 an assurance that the use of the assessment is consistent with 

44 State charter school law and it has consulted with the 

45 authorized public chartering agency.

46 (3) Upon approval, the LEA must notify all parents of high 

47 school students it serves that the LEA received approval and 
4/19/2016 Final Consensus-Based Language 7

1 will use such locally selected, nationally recognized high 

2 school academic assessment instead of the statewide academic 

3 assessment under §200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as 

4 applicable.

5 (4) In each subsequent year following approval in which the 

6 LEA elects to administer a locally selected, nationally 

7 recognized high school academic assessment, the LEA must notify8 -

9 (i) The State of its intention to continue administering 

10 such assessment; and

11 (ii) Parents of which assessment the LEA will administer to 

12 students to meet the requirements of §200.5(a)(1)(i)(B) and 

13 (a)(1)(ii)(C), as applicable, at the beginning of the school 

14 year.

15 (5) The notices to parents under this paragraph (c) must be 

16 consistent with §200.2(e).

17 (d) Definition. “Nationally recognized high school academic 

18 assessment” means an assessment of high school students’

19 knowledge and skills that is administered in multiple States and 

20 is recognized by institutions of higher education in those or 

21 other States for the purposes of entrance or placement into 

22 courses in postsecondary education or training programs. 

23 (Authority: 20 U.S.C. 6311(b)(2)(H), 6312(a), 7483, 7918; 29 

24 U.S.C. 794; 42 U.S.C. 2000d-1, 12102, and 12132)
4/19/2016 Final Consensus-Based Language 8

1 §200.4 State law exception.

2 (a) If a State provides satisfactory evidence to the 

3 Secretary that neither the State educational agency (SEA) nor 

4 any other State government official, agency, or entity has 

5 sufficient authority under State law to adopt academic content 

6 standards, student academic achievement standards, and academic 

7 assessments applicable to all students enrolled in the State's 

8 public schools, the State may meet the requirements under 

9 §§200.1 and 200.2 by--

10 (1) Adopting academic standards and academic assessments 

11 that meet the requirements of §§200.1 and 200.2 on a statewide 

12 basis and limiting their applicability to students served under 

13 subpart A of this part; or 

14 (2) Adopting and implementing policies that ensure that each 

15 LEA in the State that receives funds under subpart A of this 

16 part will adopt academic standards and academic assessments 

17 aligned with those standards that--

18 (i) Meet the requirements in §§200.1 and 200.2; and 

19 (ii) Are applicable to all students served by the LEA.

20 (b) A State that qualifies under paragraph (a) of this 

21 section must--

22 (1) Establish technical criteria for evaluating whether each 

23 LEA's--

24 (i) Academic content and student academic achievement 

25 standards meet the requirements in §200.1; and 

26 (ii) Academic assessments meet the requirements in §200.2, 

27 particularly regarding validity and reliability, technical 

28 quality, alignment with the LEA's academic standards, and 

29 inclusion of all students in the grades assessed; 

30 (2) Review and approve each LEA's academic standards and 

31 academic assessments to ensure that they--

32 (i) Meet or exceed the State's technical criteria; and 

33 (ii) For purposes of this section--

34 (A) Are equivalent to one another in their content coverage, 

35 difficulty, and quality; 

36 (B) Have comparable validity and reliability with respect to 

37 groups of students described in section 1111(c)(2) of the Act; 

38 and 

39 (C) Provide unbiased, rational, and consistent determinations 

40 of the annual progress of schools within the State; and 

41 (3) Be able to aggregate, with confidence, data from local 

42 assessments to make accountability determinations under section 

43 1111(c) of the Act. 

44 (Authority: 20 U.S.C. 6311(b)(2)(E))
4/19/2016 Final Consensus-Based Language 9

1 §200.5 Assessment administration.

2 (a) Frequency. (1) A State must administer the assessments 

3 required under §200.2 annually as follows:

4 (i) With respect to both the reading/language arts and 

5 mathematics assessments--

6 (A) In each of grades 3 through 8; and 

7 (B) At least once in grades 9 through 12. 

8 (ii) With respect to science assessments, not less than one 

9 time during each of--

10 (A) Grades 3 through 5; 

11 (B) Grades 6 through 9; and 

12 (C) Grades 10 through 12. 

13 (2) With respect to any other subject chosen by a State, the 

14 State may administer the assessments at its discretion.

15 (b) Middle school mathematics exception. A State that 

16 administers an end-of-course mathematics assessment to meet the 

17 requirements under paragraph (a)(1)(i)(B) of this section may 

18 exempt an eighth-grade student from the mathematics assessment 

19 typically administered in eighth grade under paragraph 

20 (a)(1)(i)(A) of this section if-–

21 (1) The student instead takes the end-of-course mathematics 

22 assessment the State administers to high school students under 

23 paragraph (a)(1)(i)(B) of this section;

24 (2) The student’s performance on the high school assessment 

25 is used in the year in which the student takes the assessment 

26 for purposes of measuring academic achievement under section 

27 1111(c)(4)(B)(i) of the Act and participation in assessments 

28 under section 1111(c)(4)(E) of the Act; 

29 (3) In high school-–

30 (i) The student takes a State-administered end-of-course 

31 assessment or nationally recognized high school academic 

32 assessment as defined in §200.3(d) in mathematics that--

33 (A) Is more advanced than the assessment the State 

34 administers under paragraph (a)(1)(i)(B) of this section; and

35 (B) Provides for appropriate accommodations consistent with 

36 §200.6; and

37 (ii) The student’s performance on the more advanced 

38 mathematics assessment is used for purposes of measuring 

39 academic achievement under section 1111(c)(4)(B)(i) of the Act 

40 and participation in assessments under section 1111(c)(4)(E) of 

41 the Act; and

42 (4) The State describes in its State plan, with regard to 

43 this exception, its strategies to provide all students in the 

44 State the opportunity to be prepared for and to take advanced 

45 mathematics coursework in middle school.

46 (Authority: 20 U.S.C. 6311(b)(2)(B)(v) and (b)(2)(C))
4/19/2016 Final Consensus-Based Language 10

1 §200.6 Inclusion of all students.

2 A State's academic assessment system required under §200.2 

3 must provide for the participation of all students in the grades 

4 assessed under §200.5(a) in accordance with this section.

5 (a) Students with disabilities in general. (1) A State 

6 must include students with disabilities in all assessments under 

7 section 1111(b)(2) of the Act, with appropriate accommodations 

8 consistent with paragraphs (b), (f)(1), and (f)(3)(iv) of this 

9 section. For purposes of this section, students with 

10 disabilities, collectively, are--

11 (i) All children with disabilities as defined under section 

12 602(3) of the IDEA;

13 (ii) Students with the most significant cognitive 

14 disabilities who are identified from among the students in 

15 paragraph (a)(1)(i) of this section; and

16 (iii) Students with disabilities covered under other acts, 

17 including--

18 (A) Section 504 of the Rehabilitation Act of 1973, as 

19 amended; and 

20 (B) Title II of the ADA.

21 (2)(i) A student with a disability under paragraph (a)(1)(i) 

22 or (iii) of this section must be assessed with an assessment 

23 aligned with the challenging State academic standards for the 

24 grade in which the student is enrolled.

25 (ii) If a State has adopted alternate academic achievement 

26 standards permitted under section 1111(b)(1)(E) of the Act for 

27 students with the most significant cognitive disabilities, a 

28 student with the most significant cognitive disabilities under 

29 paragraph (a)(1)(ii) of this section may be assessed with--

30 (A) The general assessment under paragraph (a)(2)(i) of this 

31 section; or 

32 (B) An alternate assessment under paragraph (c) of this 

33 section aligned with the challenging State academic content 

34 standards for the grade in which the student is enrolled and the 

35 State’s alternate academic achievement standards.

36 (b) Appropriate accommodations. (1) A State's academic 

37 assessment system must provide, for each student with a 

38 disability under paragraph (a) of this section, the appropriate 

39 accommodations, such as interoperability with, and ability to 

40 use, assistive technology devices consistent with nationally 

41 recognized accessibility standards, that are necessary to 

42 measure the academic achievement of the student consistent with 

43 paragraph (a)(2) of this section, as determined by--

44 (i) For each student under paragraph (a)(1)(i) and (ii) of 

45 this section, the student’s IEP team; 

46 (ii) For each student under paragraph (a)(1)(iii)(A) of this 

47 section, the student's placement team; or
4/19/2016 Final Consensus-Based Language 11

1 (iii) For each student under paragraph (a)(1)(iii)(B) of 

2 this section, the individual or team designated by the LEA to 

3 make these decisions.

4 (2) A State must--

5 (i) Develop, disseminate information to, at a minimum, 

6 schools and parents, and promote the use of appropriate 

7 accommodations to ensure that all students with disabilities are 

8 able to participate in academic instruction and assessments 

9 consistent with paragraph (a)(2) of this section; and

10 (ii) Ensure that general and special education teachers,

11 paraprofessionals, specialized instructional support personnel,

12 and other appropriate staff receive necessary training to 

13 administer assessments and know how to administer assessments, 

14 including, as necessary, alternate assessments under paragraphs 

15 (c) and (f)(3)(v) of this section, and know how to make use of 

16 appropriate accommodations during assessment for all students 

17 with disabilities.

18 (3) A State must ensure that the use of appropriate 

19 accommodations under this paragraph (b) does not deny a student 

20 with a disability--

21 (i) The opportunity to participate in the assessment; and

22 (ii) Any of the benefits from participation in the 

23 assessment that are afforded to students without disabilities. 

24 (c) Alternate assessments aligned with alternate academic 

25 achievement standards for students with the most significant 

26 cognitive disabilities. (1) If a State has adopted alternate 

27 academic achievement standards permitted under section 

28 1111(b)(1)(E) of the Act for students with the most significant 

29 cognitive disabilities, the State must measure the achievement 

30 of those students with an alternate assessment that--

31 (i) Is aligned with the challenging State academic content 

32 standards under section 1111(b)(1) of the Act for the grade in 

33 which the student is enrolled;

34 (ii) Yields results for those students relative to the 

35 alternate academic achievement standards; and

36 (iii) At the State’s discretion, provides valid and reliable

37 measures of student growth at all alternate academic achievement 

38 levels to help ensure that the assessment results can be used to 

39 improve student instruction.

40 (2) For each subject for which assessments are administered 

41 under §200.2(a)(1), the total number of students assessed in 

42 that subject using an alternate assessment aligned with 

43 alternate academic achievement standards under paragraph (c)(1) 

44 of this section may not exceed 1.0 percent of the total number 

45 of students in the State who are assessed in that subject.

46 (3) A State must-–
4/19/2016 Final Consensus-Based Language 12

1 (i) Not prohibit an LEA from assessing more than 1.0 percent 

2 of its assessed students in a given subject with an alternate 

3 assessment aligned with alternate academic achievement 

4 standards;

5 (ii) Require that an LEA submit information justifying the 

6 need of an LEA to assess more than 1.0 percent of its assessed 

7 students in an assessed subject with such an alternate 

8 assessment; 

9 (iii) Provide appropriate oversight, as determined by the 

10 State, of an LEA that is required to submit information to the 

11 State; and

12 (iv) Make the information submitted by an LEA under 

13 paragraph (c)(3)(ii) of this section publicly available, 

14 provided that such information does not reveal personally 

15 identifiable information about an individual student.

16 (4) If a State anticipates that it will exceed the cap 

17 under paragraph (c)(2) of this section with respect to any 

18 subject for which assessments are administered under 

19 §200.2(a)(1) in any school year, the State may request that the 

20 Secretary waive the cap for the relevant subject, pursuant to 

21 section 8401 of the Act, for one year. Such request must--

22 (i) Be submitted at least 90 days prior to the start of the 

23 State’s first testing window;

24 (ii) Provide State-level data, from the current or previous 

25 school year, to show--

26 (A) The number and percentage of students in each subgroup 

27 of students defined in section 1111(c)(2)(A), (B), and (D) of 

28 the Act who took the alternate assessment aligned with alternate 

29 academic achievement standards; and

30 (B) The State has measured the achievement of at least 95 

31 percent of all students and 95 percent of students in the 

32 children with disabilities subgroup under section 1111(c)(2)(C) 

33 of the Act who are enrolled in grades for which the assessment 

34 is required under §200.5(a);

35 (iii) Include assurances from the State that it has verified 

36 that each LEA that the State anticipates will assess more than 

37 1.0 percent of its assessed students in any subject for which 

38 assessments are administered under §200.2(a)(1) in that school 

39 year using an alternate assessment aligned with alternate 

40 academic achievement standards, and any other LEA that the State 

41 determines will significantly contribute to the State’s 

42 exceeding the cap under paragraph (c)(2) of this section-–

43 (A) Followed each of the State’s guidelines under paragraph 

44 (d) of this section, including criteria in paragraph (d)(1)(i)-

45 (iii) except paragraph (d)(6);

46 (B) Will not significantly increase, from the prior year, 

47 the extent to which the LEA assessed more than 1.0 percent of 
4/19/2016 Final Consensus-Based Language 13

1 students in any subject for which assessments were administered 

2 under §200.2(a)(1) in that school year using an alternate 

3 assessment aligned with alternate academic achievement standards 

4 unless the LEA has demonstrated to the State a higher prevalence 

5 of students with the most significant cognitive disabilities 

6 than were enrolled in assessed grades in the prior year; and

7 (C) Will address any disproportionality in the number and 

8 percentage of students in any particular subgroup under section 

9 1111(c)(2)(A), (B), or (D) of the Act taking an alternate 

10 assessment aligned with alternate academic achievement 

11 standards;

12 (iv) Include a plan and timeline by which--

13 (A) The State will improve the implementation of its 

14 guidelines under paragraph (d) of this section, including by 

15 reviewing and, if necessary, revising its definition under 

16 paragraph (d)(1) of this section, so that the State meets the 

17 cap in paragraph (c)(2) of this section in each subject for 

18 which assessments are administered under §200.2(a)(1) in future 

19 school years; 

20 (B) The State will take additional steps to support and 

21 provide appropriate oversight to each LEA that the State 

22 anticipates will assess more than 1.0 percent of its assessed 

23 students in a subject in a school year using an alternate 

24 assessment aligned with alternate academic achievement 

25 standards, and any other LEA that the State determines will 

26 significantly contribute to the State’s exceeding the cap under 

27 paragraph (c)(2) of this section, to ensure that only students 

28 with the most significant cognitive disabilities take an 

29 alternate assessment aligned with alternate academic achievement 

30 standards. The State must describe how it will monitor and 

31 regularly evaluate each such LEA to ensure that the LEA provides 

32 sufficient training such that school staff who participate as 

33 members of an IEP team or other placement team understand and 

34 implement the guidelines established by the State under 

35 paragraph (d) of this section so that all students are 

36 appropriately assessed; and

37 (C) The State will address any disproportionality in the 

38 number and percentage of students taking an alternate assessment 

39 aligned with alternate academic achievement standards as 

40 identified through the data provided in accordance with

41 paragraph (c)(4)(ii)(A) of this section; and

42 (v) If the State is requesting to extend a waiver for an 

43 additional year, meet the requirements in paragraph (c)(4)(i) 

44 through (iv) and demonstrate substantial progress towards 

45 achieving each component of the prior year’s plan and timeline 

46 required under paragraph (c)(4)(iv) of this section.
4/19/2016 Final Consensus-Based Language 14

1 (5) Reporting. A State must report separately to the 

2 Secretary, under section 1111(h)(5) of the Act, the number and 

3 percentage of children with disabilities under paragraph 

4 (a)(1)(i) and (ii) of this section taking--

5 (i) General assessments described in §200.2;

6 (ii) General assessments with accommodations; and

7 (iii) Alternate assessments aligned with alternate academic 

8 achievement standards under this paragraph (c). 

9 (6) A State may not develop, or implement for use under this 

10 part, any alternate or modified academic achievement standards 

11 that are not alternate academic achievement standards for 

12 students with the most significant cognitive disabilities that 

13 meet the requirements of section 1111(b)(1)(E) of the Act.

14 (7) For students with the most significant cognitive 

15 disabilities, a computer-adaptive alternate assessment aligned 

16 with alternate academic achievement standards must--

17 (i) Assess a student’s academic achievement based on the 

18 challenging State academic content standards for the grade in 

19 which the student is enrolled;

20 (ii) Meet the requirements for alternate assessments aligned 

21 with alternate academic achievement standards under this 

22 paragraph (c); and

23 (iii) Meet the requirements in §200.2, except that the 

24 alternate assessment need not measure a student’s academic 

25 proficiency based on the challenging State academic achievement 

26 standards for the grade in which the student is enrolled and 

27 growth toward those standards.

28 (d) State guidelines. If a State adopts alternate academic 

29 achievement standards for students with the most significant 

30 cognitive disabilities and administers an alternate assessment 

31 aligned with those standards, the State must--

32 (1) Establish, consistent with section 612(a)(16)(C) of the 

33 IDEA, and monitor implementation of clear and appropriate 

34 guidelines for IEP teams to apply in determining, on a case-by35 case basis, which students with the most significant cognitive 

36 disabilities will be assessed based on alternate academic 

37 achievement standards. Such guidelines must include a State 

38 definition of “students with the most significant cognitive 

39 disabilities” that would address factors related to cognitive 

40 functioning and adaptive behavior, such that--

41 (i) The identification of a student as having a particular 

42 disability as defined in the IDEA must not determine whether a 

43 student is a student with the most significant cognitive 

44 disabilities; 

45 (ii) A student with the most significant cognitive 

46 disabilities must not be identified solely on the basis of the 

47 student’s previous low academic achievement, or status as an 
4/19/2016 Final Consensus-Based Language 15

1 English learner, or the student’s previous need for 

2 accommodations to participate in general State or districtwide 

3 assessments; and

4 (iii) Students with the most significant cognitive 

5 disabilities require extensive, direct individualized 

6 instruction and substantial supports to achieve measurable gains 

7 on the challenging State academic content standards for the 

8 grade in which the student is enrolled;

9 (2) Provide to IEP teams a clear explanation of the 

10 differences between assessments based on grade-level academic 

11 achievement standards and those based on alternate academic 

12 achievement standards, including any effects of State and local 

13 policies on a student's education resulting from taking an 

14 alternate assessment aligned with alternate academic achievement 

15 standards, such as how participation in such assessments may 

16 delay or otherwise affect the student from completing the 

17 requirements for a regular high school diploma; 

18 (3) Ensure that parents of students selected to be assessed 

19 using an alternate assessment aligned with alternate academic 

20 achievement standards under the State's guidelines in this 

21 paragraph (d) are informed that their child's achievement will 

22 be measured based on alternate academic achievement standards, 

23 and how participation in such assessments may delay or otherwise 

24 affect the student from completing the requirements for a 

25 regular high school diploma consistent with §200.2(e);

26 (4) Not preclude a student with the most significant 

27 cognitive disabilities who takes an alternate assessment aligned 

28 with alternate academic achievement standards from attempting to 

29 complete the requirements for a regular high school diploma;

30 (5) Promote, consistent with requirements under the IDEA, 

31 the involvement and progress of students with the most 

32 significant cognitive disabilities in the general education 

33 curriculum;

34 (6) Ensure that it describes in its State plan the steps it 

35 has taken to incorporate the principles of universal design for

36 learning, to the extent feasible, in any alternate assessments 

37 aligned with alternate academic achievement standards that the 

38 State administers; and

39 (7) Develop, disseminate information on, and promote the use 

40 of appropriate accommodations consistent with paragraph (b) of 

41 this section to ensure that a student with significant cognitive 

42 disabilities who does not meet the criteria in paragraph 

43 (a)(1)(ii) of this section–-

44 (i) Participates in academic instruction and assessments for 

45 the grade level in which the student is enrolled; and

46 (ii) Is tested based on challenging State academic standards 

47 for the grade level in which the student is enrolled.
4/19/2016 Final Consensus-Based Language 16

1 (e) Definitions related to students with disabilities. 

2 Consistent with 34 CFR 300.5, “assistive technology device” 

3 means any item, piece of equipment, or product system, whether 

4 acquired commercially off the shelf, modified, or customized, 

5 that is used to increase, maintain, or improve the functional 

6 capabilities of a child with a disability. The term does not 

7 include a medical device that is surgically implanted, or the 

8 replacement of such device.

9 (f) English learners. A State must include English learners 

10 in its academic assessments required under §200.2 as follows: 

11 (1) In general. (i) Consistent with §200.2 and paragraph 

12 (f)(2) and (f)(4) of this section, a State must assess English 

13 learners in a valid and reliable manner that includes--

14 (A) Appropriate accommodations with respect to a student’s 

15 status as an English learner and, if applicable, the student’s 

16 status under paragraph (a) of this section; and

17 (B) To the extent practicable, assessments in the language 

18 and form most likely to yield accurate and reliable information 

19 on what those students know and can do to determine the 

20 students' mastery of skills in academic content areas until the 

21 students have achieved English language proficiency. 

22 (ii) To meet the requirements under paragraph (f)(1)(i) of 

23 this section, the State must, in its State plan--

24 (A) Ensure that the use of appropriate accommodations under 

25 this paragraph (f) and, if applicable, under paragraph (b) of 

26 this section does not deny an English learner--

27 (1) The opportunity to participate in the assessment; and

28 (2) Any of the benefits from participation in the assessment 

29 that are afforded to students who are not English learners; 

30 (B) Provide its definition for “languages other than English 

31 that are present to a significant extent in the participating 

32 student population,” consistent with paragraph (f)(1)(iv) of 

33 this section, and identify the specific languages that meet that 

34 definition; 

35 (C) Identify any existing assessments in languages other 

36 than English, and specify for which grades and content areas 

37 those assessments are available;

38 (D) Indicate the languages other than English that are 

39 present to a significant extent in the participating student 

40 population, as defined by the State, for which yearly student 

41 academic assessments are not available and are needed; and 

42 (E) Describe how it will make every effort to develop 

43 assessments, at a minimum, in languages other than English that 

44 are present to a significant extent in the participating student 

45 population including by providing--
4/19/2016 Final Consensus-Based Language 17

1 (1) The State’s plan and timeline for developing such 

2 assessments, including a description of how it met the 

3 requirements of paragraph (f)(1)(iv) of this section; 

4 (2) A description of the process the State used to gather 

5 meaningful input on assessments in languages other than English, 

6 collect and respond to public comment, and consult with 

7 educators, parents and families of English learners, and other 

8 stakeholders; and

9 (3) As applicable, an explanation of the reasons the State 

10 has not been able to complete the development of such 

11 assessments despite making every effort.

12 (iii) A State may request assistance from the Secretary in 

13 identifying linguistically accessible academic assessments that 

14 are needed. 

15 (iv) In determining which languages other than English are 

16 present to a significant extent in a State’s participating 

17 student population, a State must, at a minimum--

18 (A) Ensure that its definition of “languages other than 

19 English that are present to a significant extent in the 

20 participating student population” encompasses at least the most 

21 populous language other than English spoken by the State’s 

22 participating student population;

23 (B) Consider languages other than English that are spoken by 

24 distinct populations of English learners, including English 

25 learners who are migratory, English learners who were not born 

26 in the United States, and English learners who are Native 

27 Americans; and

28 (C) Consider languages other than English that are spoken by 

29 a significant portion of the participating student population in 

30 one or more of a State’s LEAs as well as languages spoken by a 

31 significant portion of the participating student population 

32 across grade levels.

33 (2) Assessing reading/language arts in English. (i) A 

34 State must assess, using assessments written in English, the 

35 achievement of an English learner in meeting the State's 

36 reading/language arts academic standards if the student has 

37 attended schools in the United States, excluding Puerto Rico

38 and, if applicable, students in Native American language schools 

39 or programs consistent with paragraph (g) of this section, for 

40 three or more consecutive years.

41 (ii) An LEA may continue, for no more than two additional 

42 consecutive years, to assess an English learner under paragraph 

43 (f)(1)(i)(B) of this section if the LEA determines, on a case44 by-case individual basis, that the student has not reached a 

45 level of English language proficiency sufficient to yield valid 

46 and reliable information on what the student knows and can do on 

47 reading/language arts assessments written in English.
4/19/2016 Final Consensus-Based Language 18

1 (iii) The requirements in paragraph (f)(2)(i) and (ii) of 

2 this section do not permit an exemption from participating in 

3 the State assessment system for English learners.

4 (3) Assessing English proficiency. (i) Each State must--

5 (A) Develop a uniform statewide assessment of English 

6 language proficiency, including reading, writing, speaking, and 

7 listening skills; and

8 (B) Require each LEA to use such assessment to assess 

9 annually the English language proficiency, including reading, 

10 writing, speaking, and listening skills, of all English learners 

11 in schools served by the LEA.

12 (ii) The assessment under paragraph (3)(i) of this section 

13 must be–-

14 (A) Aligned with the State’s English language proficiency 

15 standards under section 1111(b)(1)(F) of the Act and provide 

16 coherent and timely information about each student’s attainment 

17 of those standards, including information provided to parents 

18 consistent with §200.2(e); and

19 (B) Developed and used consistent with the requirements of 

20 §200.2(b)(2), (b)(4), and (b)(5).

21 (iii) If a State develops a computer-adaptive assessment to 

22 measure English language proficiency, the State must ensure that 

23 the computer-adaptive assessment--

24 (A) Assesses a student’s language proficiency, which may 

25 include growth toward proficiency, in order to measure the 

26 student’s acquisition of English; and

27 (B) Meets the requirements for English language proficiency 

28 assessments in paragraph (f) of this section.

29 (iv) A State must provide appropriate accommodations that 

30 are necessary to measure a student’s English language 

31 proficiency relative to the State’s English language proficiency 

32 standards under section 1111(b)(1)(F) of the Act for each 

33 English learner covered under paragraph (a)(1)(i) or (a)(1)(iii)

34 of this section.

35 (v) A State must provide for an alternate English language 

36 proficiency assessment for each English learner covered under 

37 paragraph (a)(1)(ii) of this section who cannot participate in 

38 the assessment under paragraph (f)(3)(i) of this section even 

39 with appropriate accommodations.

40 (4) Recently arrived English learners. (i)(A) A State may 

41 exempt a recently arrived English learner, as defined in 

42 paragraph (f)(5)(i) of this section, from one administration of 

43 the State's reading/language arts assessment under §200.2.

44 (B) If the State does not assess a recently arrived English 

45 learner on the State's reading/language arts assessment, the 

46 State must count the year in which the assessment would have 

47 been administered as the first of the three years in which the 
4/19/2016 Final Consensus-Based Language 19

1 student may take the State's reading/language arts assessment in 

2 a native language consistent with paragraph (f)(2)(i) of this 

3 section.

4 (C) The State and its LEAs must report on State and local 

5 report cards required under section 1111(h) of the Act the 

6 number of recently arrived English learners who are not assessed 

7 on the State's reading/language arts assessment.

8 (D) Nothing in this paragraph (f) relieves an LEA from its 

9 responsibility under applicable law to provide recently arrived 

10 English learners with appropriate instruction to enable them to 

11 attain English language proficiency as well as grade-level 

12 content knowledge in reading/language arts, mathematics, and 

13 science.

14 (ii) A State must assess the English language proficiency of 

15 a recently arrived English learner pursuant to paragraph (f)(3) 

16 of this section.

17 (iii) A State must assess the mathematics and science 

18 achievement of a recently arrived English learner pursuant to 

19 §200.2 with the frequency described in §200.5(a).

20 (5) Definitions related to English learners.

21 (i) A “recently arrived English learner” is an English 

22 learner who has been enrolled in schools in the United States 

23 for less than twelve months.

24 (ii) The phrase “schools in the United States” includes only 

25 schools in the 50 States and the District of Columbia.

26 (g) Students in Native American language schools or 

27 programs. (1) Except as provided in paragraph (g)(2) of this 

28 section, a State is not required to assess, using assessments 

29 written in English, student achievement in meeting the 

30 challenging State academic standards in reading/language arts 

31 for a student who is enrolled in a school or program that 

32 provides instruction primarily in a Native American language if33 -

34 (i) The State provides an assessment of reading/language 

35 arts in the Native American language to all students in the 

36 school or program, consistent with the requirements of §200.2;

37 (ii) The State submits the assessment of reading/language 

38 arts in the Native American language for peer review as part of 

39 its State assessment system, consistent with §200.2(d); and

40 (iii) For an English learner, as defined in section 

41 8101(2)(C)(ii) of the Act, the State continues to assess the 

42 English language proficiency of such English learner, using the 

43 annual English language proficiency assessment required under 

44 §200.6(f)(3), and provides appropriate services to enable him or 

45 her to attain proficiency in English.

46 (2) Notwithstanding §200.2(f)(2), the State must assess 

47 under §200.5(a)(1)(i)(A), using assessments written in English
4/19/2016 Final Consensus-Based Language 20

1 by no later than the end of the eighth grade, the achievement of 

2 each student enrolled in such a school or program in meeting the 

3 challenging State academic standards in reading/language arts.

4 (h) Definition. For the purpose of this section, “Native 

5 American” means “Indian” as defined in section 6151 of the Act, 

6 which includes Alaska Native and members of federally recognized 

7 or state-recognized tribes; Native Hawaiian; and Native American 

8 Pacific Islander.

9 (i) Highly mobile students. The State must include in its 

10 assessment system the following highly mobile student 

11 populations as defined in §200.2(b)(11):

12 (1) Students with status as a migratory child.

13 (2) Students with status as a homeless child or youth.

14 (3) Students with status as a child in foster care.

15 (4) Students with status as a student with a parent who is a 

16 member of the armed forces on active duty.

17 (Authority: 20 U.S.C. 1400 et seq. and 6311(b)(2); 25 U.S.C. 

18 2902; 29 U.S.C. 794; 42 U.S.C. 2000d-1, 11434a, and 12132; and 

19 34 CFR 300.5)
4/19/2016 Final Consensus-Based Language 21

1 §200.8 Assessment reports.

2 (a) Student reports. A State's academic assessment system 

3 must produce individual student interpretive, descriptive, and 

4 diagnostic reports that--

5 (1)(i) Include information regarding achievement on the 

6 academic assessments under §200.2 measured against the State's 

7 student academic achievement standards; and 

8 (ii) Help parents, teachers, and principals to understand 

9 and address the specific academic needs of students; and 

10 (2) Are provided to parents, teachers, and principals--

11 (i) As soon as is practicable after the assessment is given;

12 and

13 (ii) In an understandable and uniform format consistent with 

14 §200.2(e).

15 (b) Itemized score analyses for LEAs and schools. (1) A 

16 State's academic assessment system must produce and report to 

17 LEAs and schools itemized score analyses, consistent with 

18 §200.2(b)(13), so that parents, teachers, principals, and 

19 administrators can interpret and address the specific academic 

20 needs of students. 

21 (2) The requirement to report itemized score analyses in 

22 paragraph (b)(1) of this section does not require the release of 

23 test items.

24 (Authority: 20 U.S.C. 6311(b)(2)(B)(x) and (xii))
4/19/2016 Final Consensus-Based Language 22

1 §200.9 Deferral of assessments.

2 (a) A State may defer the start or suspend the 

3 administration of the assessments required under §200.2 for one 

4 year for each year for which the amount appropriated for State 

5 assessment grants under section 1002(b) of the Act is less than 

6 $369,100,000. 

7 (b) A State may not cease the development of the assessments 

8 referred to in paragraph (a) of this section even if sufficient 

9 funds are not appropriated under section 1002(b) of the Act. 

10 (Authority: 20 U.S.C. 6302(b), 6311(b)(2)(I), and 6363(a))
4/19/2016 Final Consensus-Based Language 23

1 §200.10 Applicability of a State's academic assessments to 

2 private schools and private school students.

3 (a) Nothing in §200.1 or §200.2 requires a private school, 

4 including a private school whose students receive services under 

5 subpart A of this part, to participate in a State's academic 

6 assessment system. 

7 (b)(1) If an LEA provides services to eligible private 

8 school students under subpart A of this part, the LEA must, 

9 through timely consultation with appropriate private school 

10 officials, determine how services to eligible private school 

11 students will be academically assessed and how the results of 

12 that assessment will be used to improve those services. 

13 (2) The assessments referred to in paragraph (b)(1) of this 

14 section may be the State's academic assessments under §200.2 or 

15 other appropriate academic assessments.

16 (Authority: 20 U.S.C. 6320 and 7886(a))