17748 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

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 

May 9, 2007. 

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 12th 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., 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 (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 

What are modified academic 

achievement standards? 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 


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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? 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, 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 gradelevel 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 


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academic achievement standards may 

be included in calculating AYP. 

What assessments measure 

performance based on modified 

academic achievement standards? 

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 outof-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 gradelevel 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 

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. 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. 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. 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. 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. 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 

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 

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)) 

• Section 200.1(a)(1) and (a)(2) have 

been revised to clarify that the same 


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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)) 

• 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 standardssetting 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 gradelevel 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 gradelevel curriculum includes instruction. 

(5) A new paragraph (e)(1)(iii) has 

been added to §00.1 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 highquality 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)) 

• 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 


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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) 

• 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) 

• 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)) 

• 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 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)) 

• 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. 


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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17753 

PART 300—ASSISTANCE TO STATES 

FOR THE EDUCATION OF CHILDREN 

WITH DISABILTIES 

Participation in Assessments (§ 300.160) 

• 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 

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: 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 


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17754 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

1AERA, 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. 

Title I negotiated rulemaking 

requirements. 

Discussion: 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: 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: 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: 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: 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: 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: 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 standardssetting 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: 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 


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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17755 

documented and validated standardssetting 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: 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: 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: None. 

Comment: 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 gradelevel content standards. 

Discussion: Modified academic 

achievement standards are intended to 

be challenging for a small group of 

students whose disability has thus far 

prevented them from attaining gradelevel 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 gradelevel 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: 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: 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: 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 gradelevel 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: None. 

Comment: We received several 

comments regarding proposed 

§ 200.1(e)(1)(iii), which requires that 

modified academic achievement 

standards not preclude a student from 


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17756 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

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: 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 gradelevel 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: 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: 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: 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: None. 

Criteria for Defining Eligible Students 

(§ 200.1(e)(2)) 

Comment: 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: 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 


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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: 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: 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: 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: None. 

Comment: 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 highquality instruction, but stated that this 

is not always the case. 

Discussion: 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 

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: We have replaced ‘‘highquality instruction’’ with ‘‘appropriate 

instruction’’ in § 200.1(e)(2)(ii)(A). We 

also have added ‘‘to date’’ following 

‘‘progress’’ for clarity. 

Comment: 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: 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: None. 

Comment: 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: 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 


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17758 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

2Ahearn, E. (2006). Standards-based IEPs: 

Implementation in Selected States. National 

Association of State Directors of Special Education, 

1800 Diagonal Road, Suite 320, Alexandria, VA 

22314. 

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: None. 

Comment: 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: 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: None. 

Comment: 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 gradelevel 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 gradelevel achievement. 

Discussion: 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. 


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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: 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: 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: 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 gradelevel 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: None. 

Comment: 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: 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: 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: 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: 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: 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: Several commenters 

requested that the decision to assess a 

student based on modified academic 

achievement standards be reviewed 

annually. 

Discussion: 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: None. 

Comment: 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: 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 


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standards and, therefore, decline to 

make the requested change. 

Changes: None. 

State Guidelines (§ 200.1(f)) 

Comment: 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: 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: 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: 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: 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: None. 

Comment: 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 gradelevel academic achievement standards 

even if provided with the very best 

possible education and 

accommodations. 

Discussion: 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: None. 

Inclusion of All Students (§ 200.6) 

Students Eligible Under IDEA and 

Section 504 (§ 200.6(a)) 

Comment: 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: 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: None. 

Comment: 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: 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: None. 

Comment: None. 

Discussion: In reviewing the proposed 

regulations, we noted that 


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3Current § 200.6(a)(2)(iii) was finalized in the 

December 9, 2003 regulations for students with the 

most significant cognitive disabilities (68 FR 

68698). 

4See section 614(d)(1)(A)(i)(IV)(bb) of the IDEA. 

5Alternate Achievement Standards for Students 

with the Most Significant Cognitive Disabilities 

(August, 2005) is available at http://www.ed.gov/ 

policy/elsec/guid/altguidance.doc. 

§ 200.6(a)(1)(ii)(A) referred to ‘‘gradelevel 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: 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: 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: 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 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: None. 

Comment: 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: 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: None. 

Comment: 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: 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: None. 

Comment: 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: 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 

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 


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6Standards and assessment peer review 

guidance: Information and examples for meeting 

requirements of the No Child Left Behind Act of 

2001, (April 28, 2004). Available at http:// 

www.ed.gov/policy/elsec/guid/saaprguidance.doc. 

academic achievement standards. 

Therefore, we cannot make the 

requested change in these final 

regulations. 

Changes: 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)) 

Comment: Many commenters 

recommended requiring that an 

assessment based on modified academic 

achievement standards be referred to as 

an alternate assessment. 

Discussion: 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: 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: 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: 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: None. 

Comment: 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. 

Discussion: 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 gradelevel 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 prerequisite 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 gradelevel 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 


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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: None. 

Comment: Several commenters argued 

that the regulations should permit the 

use of out-of-level assessments. Another 

commenter questioned whether out-oflevel assessments would be as valid as 

alternate assessments based on modified 

academic achievement standards. 

Discussion: 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-oflevel 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: None. 

Comment: 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: 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: None. 

Comment: Many commenters 

requested additional guidance on 

developing an alternate assessment 

based on modified academic 

achievement standards. 

Discussion: 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: 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)) 

Comment: 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 gradelevel 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: 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: We have redesignated 

proposed paragraph (a)(4)(iv), regarding 

alternate assessments based on gradelevel 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: 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: 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 


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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: 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: 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: 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: None. 

Disaggregation of Data (§ 200.7) 

Comment: 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: 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: 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: 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: 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: None. 

Comment: 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: 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: 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: 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. 


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7Clapper, 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). Minneapolis, MN: University 

of Minnesota, National Center on Educational 

Outcomes. 

8Posny, A. (2004). Clash of the titans: No child 

left behind and students with disabilities. 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, 

DC. Available at: http://www.cep-c.org/pubs/ 

Forum14September2004/PochowskiPaper.pdf. 

9McMaster, K.L., Fuchs, D., Fuchs, L.S., & 

Compton, D.L. (2005). Responding to nonresponders: An experimental field trial of 

identification and intervention methods. 

Exceptional Children, 71, 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, 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 

(2nd ed.) New York: Guilford Press. 

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 gradelevel 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: 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 nonresponders 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 bestdesigned 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: None. 

Comment: 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 


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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: 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: None. 

Comment: 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: 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 nonproficient the proficient and advanced 

scores that exceed the caps and 

determine which scores to count as nonproficient in the schools and LEAs 

responsible for students who are 

assessed based on alternate or modified 

academic achievement standards. 

Changes: None. 

Comment: 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: 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: None. 

Comment: 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: 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 


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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: None. 

Comment: 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: 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: None. 

Making Adequate Yearly Progress 

(§ 200.20) 

Comment: One commenter stated that 

multiple assessment administrations 

should be permitted for all students, not 

just for students with disabilities. 

Discussion: 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: None. 

Comment: 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: A State that permits 

multiple administrations of its 

assessment must ensure that the 

assessment continues to be reliable and 

valid and provides 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: None. 

Comment: A few commenters 

recommended allowing a student’s IEP 

Team to determine the number of times 

the student may retake an assessment. 

Discussion: The IEP Team is 

responsible for determining how a 

student will participate in State and 

district-wide assessments. (See 

§ 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: None. 

Including Scores of Students Previously 

Identified Under IDEA in AYP 

Calculations for the Students With 

Disabilities Subgroup (§ 200.20(f)) 

Comment: 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: 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 


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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: 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: 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 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: 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 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 former students with 

disabilities for AYP calculations if the 

State decides to include the scores of 

any former student with a disability. 

Changes: 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: 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. 


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Discussion: 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: None. 

Comment: 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: 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: None. 

Definitions (§ 200.103) 

Comment: A few commenters 

recommended including a definition of 

‘‘universal design’’ in these regulations. 

Discussion: 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: None. 

Comment: A few commenters 

recommended defining ‘‘pupil services’’

to mean ‘‘related services,’’ as defined in 

section 602(26) of the IDEA. 

Discussion: 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: 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 on 

December 15, 2005 (70 FR 74624), as 

well as comments made in response to 

the proposed IDEA regulations 

published in the Federal Register 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) 

General (§ 300.160) 

Comment: 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: 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: None. 

Comment: 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: Section 612(a)(16)(A) of 

the IDEA is clear that all children must 

participate in State as well as districtwide 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: None. 

Comment: 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: 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 shortterm 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 


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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: None. 

Accommodation Guidelines 

(§ 300.160(b)) 

Comment: 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: 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: None. 

Comment: 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: 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: Section 300.160(b)(2)(i) has 

been changed to require a State’s 

guidelines (or in the case of a districtwide assessment, an LEA’s guidelines) 

to identify the accommodations for each 

assessment that do not invalidate the 

score. 

Comment: 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: 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 


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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: 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: 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: 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: None. 

Comment: 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: 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 http:// 

www.education.umn.edu/nceo/) and the 

Office of Elementary and Secondary 

Education supports a Comprehensive 

Center on Accountability and 

Assessments (See 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 http://ies.ed.gov/ 

ncser/). 

Changes: None. 

Comment: 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: 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 districtwide 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: None. 

Comment: 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: 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 


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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: None. 

Comment: 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: 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 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: None. 

Comment: Several commenters 

requested that definitions of 

‘‘accommodations’’ and ‘‘modifications’’

be included in these regulations because 

definitions of these two terms vary 

across States. 

Discussion: 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: None. 

Comment: One commenter stated that 

special accommodations should be 

given for children with the most 

significant cognitive disabilities. 

Discussion: 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: None. 

Alternate Assessments (New 

§ 300.160(c)) (Proposed § 300.160(d)) 

Comment: 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: 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) 


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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 gradelevel 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: 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: 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: 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: 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)) 

Comment: 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: 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: None. 

Comment: 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: 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 


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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: 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: 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: 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: None. 

Comment: 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: 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: 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: 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: 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: None. 

Universal Design (New § 300.160(g)) 

(Proposed § 300.160(f)) 

Comment: One commenter 

recommended requiring a State to 

document where universal design 

principles are not used. 

Discussion: 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: 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 

Under Executive Order 12866, we 

have assessed the potential costs and 

benefits of this regulatory action. 

Summary of Public Comments: 

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 

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 


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10Common 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. 

11U.S. Government Accountability Office, Report 

03–389, pg. 17. 

12We 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. 

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 gradelevel 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, 


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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 choicerelated 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 

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 requesting comment on these 

collections. 

Regulatory section Collection information Collection 

§ 200.1(f) ............................................................ Requires SEAs opting for the flexibility offered 

by these regulations to 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.

Information collection 1810–0576, ‘‘Consolidated State Application.’’ 


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Regulatory section Collection information Collection 

§ 200.6(a)(4) and § 300.160(f)(3) ....................... Requires SEAs to report in their annual State 

performance reports the total number and 

percentage of students tested in math and 

reading with alternate assessments based 

on modified academic achievement standards.

Information collection 1875–0240, ‘‘Annual 

Mandatory Collection of Elementary and 

Secondary Education Data for EDFacts.’’

§ 200.20 ............................................................. Permits SEAs and LEAs to include the scores 

of former students with disabilities in the 

students with disabilities subgroup when reporting AYP on SEA and LEA report cards.

Information collection 1810–0581, ‘‘State Educational Agency and Local Educational 

Agency and School Data Collection and Reporting under ESEA, Title I, Part A.’’

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 

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as all other Department of Education 

documents published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) on the Internet 

at the following site: http://www.ed.gov/ 

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To use PDF, you must have Adobe 

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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: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

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of Federal Regulations is available on GPO 

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(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, Stateadministered 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—


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education, Privacy, Private Schools, 

Reporting and recordkeeping 

requirements. 

Dated: April 2, 2007. 

Margaret Spellings, 

Secretary of Education. 

■ 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. 

(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. (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 standardssetting 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. 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 


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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. 

* * * * * 

(a) Students eligible under IDEA and 

Section 504—(1) Appropriate 

accommodations. (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. (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 gradelevel 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. 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. 

(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. 

* * * * * 

(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—


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(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 nonproficient 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 academic achievement 

standards—1% cap 

Modified academic achievement 

standards—2% cap 

Alternate and modified academic 

achievement standards—3% 

State ................................. Not permitted ..................................... Only if State is below 1% cap, but 

cannot exceed 3%.

Not permitted. 

LEA .................................. Only if granted an exception by the 

SEA.

Only if LEA is below 1% cap, but 

cannot exceed 3%.

Only if granted an exception to the 

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. 

* * * * * 

(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) Assess those students’ English 

language proficiency under 

§ 200.6(b)(3); or 

(2) 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. 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 


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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. 

* * * * * 

(c) Student with a disability 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. 

(a) General. 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. (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. (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. 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. 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. 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 gradelevel 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. 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)) 

[FR Doc. 07–1700 Filed 4–4–07; 8:45 am] 

BILLING CODE 4000–01–P 


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