U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
U.S. DEPARTMENT OF EDUCATION

POLICY STATEMENT ON
INCLUSION OF CHILDREN WITH DISABILITIES IN
EARLY CHILDHOOD PROGRAMS
EXECUTIVE SUMMARY
September 14, 2015
This year our country proudly celebrates the 25th anniversary of the Americans with Disabilities Act, the
40th anniversary of the Individuals with Disabilities Education Act (IDEA), and the 50th anniversary of
Head Start. All three efforts have been transformative in ensuring equal opportunity for all Americans.
While tremendous progress has been made, the anniversaries of these laws are cause for reflection on the
work that lies ahead. Children with disabilities and their families continue to face significant barriers to
accessing inclusive high-quality early childhood programs and too many preschool children with
disabilities are only offered the option of receiving special education services in settings separate from
their peers without disabilities. This lag in inclusive opportunities is troubling for many reasons:
•

Being meaningfully included as a member of society is the first step to equal opportunity, one of
America’s most cherished ideals, and is every person’s right – a right supported by our laws.

•

Research indicates that meaningful inclusion is beneficial to children with and without disabilities
across a variety of developmental domains.

•

Preliminary research shows that operating inclusive early childhood programs is not necessarily
more expensive than operating separate early childhood programs for children with disabilities.

•

Meaningful inclusion in high-quality early childhood programs can support children with
disabilities in reaching their full potential resulting in broad societal benefits.

It is the Departments’ position that all young children with disabilities should have access to inclusive
high-quality early childhood programs, where they are provided with individualized and appropriate
support in meeting high expectations. To further this position, the Departments’ policy statement on the
inclusion of young children with disabilities in early childhood programs:
•

Sets an expectation for high-quality inclusion in early childhood programs;

•

Highlights the legal and research foundations supporting inclusion; and

•

Provides recommendations to States, local educational agencies (LEAs), schools, and early childhood
programs for increasing inclusive early learning opportunities for all children.

Though this policy statement focuses on including young children with disabilities, it is our shared vision
that all people be meaningfully included in all facets of society throughout the life course. This begins in
early childhood programs and continues into schools, places of employment, and the broader community.
Inclusion in Early Childhood Programs
Inclusion in early childhood programs refers to including children with disabilities in early childhood
programs, together with their peers without disabilities; holding high expectations and intentionally
promoting participation in all learning and social activities, facilitated by individualized accommodations;
and using evidence-based services and supports to foster their development (cognitive, language,
communication, physical, behavioral, and social-emotional) , friendships with peers, and sense of
belonging. This applies to all young children with disabilities, from those with the mildest disabilities, to
those with the most significant disabilities.
The vision of inclusion in early childhood programs and recommendations provided in the policy
statement build on the principles and definition set forth in the joint position statement from the National
Association for the Education of Young Children (NAEYC) and the Council for Exceptional Children’s
Division for Early Childhood (DEC).
The Scientific Base for the Benefits of Inclusion
•

Individualized evidence-based strategies for children with disabilities can be implemented
successfully in inclusive early childhood programs.

•

Children with disabilities, including those with the most significant disabilities, can make
significant developmental and learning progress in inclusive settings.

•

Research suggests that children’s growth and learning is related to their peers’ skills and the
effects are most pronounced for children with disabilities.

•

These outcomes are achieved when children with disabilities are included several days per week
in social and learning opportunities with their typically developing peers and specialized
instructional strategies are used.

•

Typically developing children show positive developmental, social, and attitudinal outcomes
from inclusive experiences.

The Legal Foundation
•

IDEA Part C requires that appropriate early intervention services are made available to the
maximum extent appropriate to eligible infants and toddlers with disabilities in natural
environments, including the home, and community settings in which children without disabilities
participate.

•

For eligible children with disabilities ages three through 21, IDEA Part B requires that, special
education and related services, be provided, to the maximum extent appropriate, in the least
restrictive environment (LRE), which includes a continuum of placement options and
supplementary services.

•

The IDEA presumes that the first placement option considered for an eligible child with a
disability is the regular classroom the child would attend if he or she did not have a disability.
LEAs must ensure that a free appropriate public education is provided in the LRE regardless of
whether they operate a general early childhood program. This may include providing special

education and related services in public or private general early childhood programs, including
Head Start and Early Head Start programs, and community-based child care programs.
•

The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973
(Section 504) prohibit discrimination on the basis of disability. HHS and ED’s Section 504
regulations require recipients such as schools to provide equal educational opportunities for
children with disabilities in the most integrated setting appropriate to the child’s needs.

•

The Head Start Act and the Child Care and Development Block Grant Act have specific
provisions that support high-quality early learning opportunities for children with disabilities.

Challenges to Inclusion
Attitudes and Beliefs: These are the most frequently reported barrier to early childhood inclusion, and
may be influenced by misinformation of the feasibility of inclusion, resistance to changing existing
practices, stereotyping of children with disabilities, and lack of awareness of the benefits for all children.
IDEA Interpretation and Perceived Barriers: Some jurisdictions misinterpret IDEA’s Part C natural
environment provision as only allowing early intervention services to be provided in children’s homes, and
not in community settings where typically developing children are included. Other jurisdictions misinterpret
IDEA’s free appropriate public education (FAPE) and LRE requirements as only allowing IDEA preschool
special education services to be delivered in preschool programs operated in a public school building.
Lack of Expertise of the Early Childhood Workforce: Early childhood providers and teachers may lack
knowledge and competencies in child development, early childhood pedagogy, and individualizing
instruction. This affects all children and presents a challenge to high-quality inclusive early learning.
Lack of Comprehensive Services: The systems that provide services to young children often deliver
services in separate settings. The lack of delivery of comprehensive supports in early childhood programs
may be a barrier to the full participation and success of children with disabilities in inclusive settings.
Limited Time and Commitment to Build Partnerships: A key ingredient to successful inclusion is a
strong partnership between general early childhood programs and early intervention and early childhood
special education providers. Many communities believe in the importance of inclusion but have made
little progress due to limited planning time or a lack of commitment and support from leaders.
Building a Culture of Inclusion
Addressing the barriers to inclusion in early childhood programs and ensuring individualized supports to
children with disabilities requires a community-based approach that brings families, advocates,
developmental specialists, early childhood programs, schools, LEAs, communities and States leaders
together to build a culture of inclusion, supported by the empirical and legal foundations of inclusion. A
culture of inclusion sets the stage for the recommendations provided in the Federal policy statement and is
the first step to reaching the ultimate vision of providing access to inclusive high-quality early learning
opportunities for all children.
State Recommendations
1. Create a State-Level Interagency Task Force and Plan for Inclusion: States should leverage
existing early childhood councils or taskforces and create or strengthen a focus on early childhood
inclusion. This council should build on existing early childhood efforts, bring partners together, cocreate a written vision statement for early childhood inclusion, and carry out an inclusion State plan.

2. Ensure State Policies Support High-Quality Inclusion: States should review their policies to
ensure that they facilitate high-quality inclusion. The State should ensure that future early learning
initiatives within the State have specific policies and procedures to recruit, enroll, and appropriately
support the learning and developmental needs of young children with disabilities.
3. Set Goals and Track Data: States should set concrete goals for expanding access to inclusive highquality early learning opportunities, and track progress in reaching these goals.
4. Review and Modify Resource Allocations: States should review how resources are allocated and
how they may be reallocated to better support increased access to inclusive early childhood programs.
States should consider using funds across multiple early childhood programs, particularly IDEA funds
with other early childhood funding streams.
5. Ensure Quality Rating Frameworks are Inclusive: Each level in a quality framework should
include indicators applicable to children with disabilities, as opposed to indicators specific to children
with disabilities being optional or only applying at the highest level of a framework.
6. Strengthen Accountability and Build Incentive Structures: The State should address barriers to
inclusion within their accountability system. This should include reviewing the individualized
education program (IEP) processes to ensure that placement decisions are individualized and
consistent with LRE requirements for eligible children under the IDEA.
7. Build a Coordinated Early Childhood Professional Development (PD) System: An effective early
childhood workforce is a key component of expanding access to inclusive high-quality early
childhood programs. States should ensure that their professional development efforts are coordinated
and that inclusion of children with disabilities are meaningfully addressed across all efforts.
Specifically, States should:
•

Build a Common Knowledge and Competency Base Across Child-Serving Providers

•

Ensure that State Certifications, Credentials, and Workforce Preparation Programs have a
Strong Focus on Inclusion

•

Ensure Personnel Policies Facilitate Inclusion

•

Offer Cross-Sector Professional Development and Technical Assistance

8. Implement Statewide Supports for Children’s Social-Emotional and Behavioral Health: Early
childhood programs should have access to specialists who can build capacity in working with young
children, with an emphasis on fostering social-emotional and behavioral health.
9. Raise Public Awareness: The State should take an active role in trying to shift perceptions of
inclusion by partnering with community leaders to communicate the benefits of early childhood
inclusion, affirm the laws and research that form the foundation for inclusion, and set the expectation
that the community is responsible for ensuring that all children have access to high-quality early
childhood programs and the individualized supports they need to fully participate in those programs.
Local Recommendations
1. Partner with Families: Families are children’s first and most important teachers and advocates.
Schools and programs should ensure all families are knowledgeable about the benefits of inclusion
and include them in policy development, advocacy efforts, and public information initiatives. They

should build staff’s capacity to form strong goal-oriented relationships with families that are linked to
their child’s learning, development, and wellness.
2. Adhere to Legal Provisions of Supports and Services in Inclusive Settings with IFSPs/IEPs:
LEAs, schools, and other local early intervention service providers should review their IFSP/IEP
processes to ensure that inclusive settings are meaningfully discussed for each child.
3. Assess and Improve the Quality of Inclusion in Early Childhood Programs: Pair children’s
assessments with environmental assessments of their early childhood programs to ensure that there
are appropriate accommodations and modifications to support children in reaching their goals.
4. Review and Modify Resource Allocation: LEAs, schools, and early childhood programs can
examine the ways they allocate funds that serve children with disabilities and modify them to promote
inclusion.
5. Enhance Professional Development: A high-quality staff should have knowledge, competencies,
and positive attitudes and beliefs about inclusion and disability in order to foster the development of
all children. Specifically:
•

LEA Administrators, Early Childhood Directors and Principals should participate in
professional development focused on the research on inclusion, establishing a culture of inclusion
and enacting strong inclusive policies, and practical resource allocation strategies that support
inclusion. Leaders should require staff to engage in professional development specific to
inclusion and supporting the learning and developmental needs of children with disabilities.

•

Teachers and Providers should have the skills necessary to meet the learning needs of all
children. All professional development opportunities offered to early childhood staff should
incorporate how the content applies and can be individualized for children with disabilities.

•

Early interventionists, Special Educators and Related Service Personnel should deliver services
to children with disabilities in early childhood settings that are embedded in everyday routines;
and/or co-teach and coach early childhood teachers and providers to encourage inclusive
educational environments, as opposed to focusing on working with children in separate settings or
pulling children out of their settings for specialized instruction, as a first option.

6. Establish an Appropriate Staffing Structure and Strengthen Staff Collaboration: LEAs, schools,
and early childhood programs should shift existing resources and systems to establish staffing
structures and increase staff collaboration to better support inclusion. Early childhood programs could
consist of a skilled teacher or provider and an aide, supported by specialized service providers.
Programs should also have a disability or inclusion coordinator.
7. Ensure Access to Specialized Supports: Early childhood programs and schools should have access
to specialized supports delivered by experts. These specialized supports can increase the quality of
early learning experiences for all children.
8. Develop Formal Collaborations with Community Partners: Early childhood programs and schools
should establish formal agreements with service providers in their community to ensure alignment
and delivery of comprehensive services.


Addendum to Questions and Answers Regarding Inclusion of English
Learners with Disabilities in English Language Proficiency Assessments and
Title III Annual Measurable Achievement Objectives Issued July 18, 2014
(2014 Qs and As)1
Table of Contents:
Initial Identification
14. Why is it important to consider the results of an EL screener for students with
disabilities or students suspected of having a disability?
15. Can IDEA funds be used to identify a student with a disability, or a student suspected of
having a disability, as an EL?
16. Does Federal law provide that ELs may not be evaluated for special education services
for a certain period of time?
17. How can States ensure the appropriate identification of ELs with disabilities and prevent
the over/under identification of ELs for special education services?
Role of the IEP Team
18. What guidance and resources are available to assist IEP Teams in determining whether
an EL with a disability should take the regular ELP assessment with accommodations or
an alternate assessment?
Accommodations and Alternate Assessments
19. May States develop alternate ELP standards for ELs with disabilities to define what
they know in English and are able to do in English?
20. Are all ELs with disabilities expected to have their ELP assessed in the same way as ELs
without disabilities?
21. May a State use different cut scores or achievement standards on the State ELP
assessment for determining whether ELs with disabilities are proficient in English?
22. May a State use Title III funds to develop an alternate ELP assessment for students with
disabilities?

1

The Qs and As can be accessed at the following link:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/q-and-a-on-elp-swd.pdf.

1

23. May a State use Title III funds for SEA capacity-building activities, such as funding a
meeting to gather stakeholders to make determinations about how to develop an
alternate ELP assessment?
Other Considerations
24. What responsibilities do States and LEAs have for students who were identified as ELs
with disabilities but whose parents/guardians refused EL services, with regard to the
annual ELP assessment?
Questions and Answers:
Initial Identification
Consistent with obligations under Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§2000d, schools must take affirmative steps to ensure that students with limited English
proficiency can meaningfully participate in their educational programs and services. This
requires a mechanism for initially identifying a student as an English learner (EL).2 Some
States and local educational agencies (LEAs) use an EL screening assessment or tool to
determine whether students are ELs who are in need of language assistance services. Other
States and LEAs use the annual English Language Proficiency (ELP) assessment required in
section 1111(b)(7) of the ESEA for this purpose. The term “EL screener” will be used in
questions 14 and 15 to encompass both identification mechanisms. Question 14 addresses
the importance of the EL screener for students with disabilities or for students suspected of
having a disability under the IDEA, and question 15 addresses whether it could be
permissible to use IDEA funds in connection with the EL screening process. Questions 16
and 17 address the appropriate and timely evaluation and identification of ELs as students
with disabilities under the IDEA.
14. Why is it important to consider the results of an EL screener for students with
disabilities or students suspected of having a disability?
Under the IDEA, a student may not be determined to be a student with a disability if the
determinant factor is the student’s limited English proficiency, and if the student does not
otherwise meet the IDEA’s definition of a “child with a disability” (34 CFR
§300.306(b)(1)(iii) and (2)). To ensure that the IDEA eligibility determination is based on
the student’s disability and need for special education and related services, and not solely on
a student’s limited English proficiency, providing accommodations on the regular EL
screener or administering an alternate form of the EL screener could be necessary to give a
2

As noted in the 2014 Qs and As, the term “English Learner” (EL) means a student who is considered limited
English proficient (LEP) as defined in section 9101(25) of the ESEA. The term “students with disabilities,” as
used in this document, refers to children who meet the definition of “child with a disability” in section 602(3)
of the IDEA and 34 CFR §300.8 of the IDEA Part B regulations.

2

student with a disability, or a student suspected of having a disability, a meaningful
opportunity to accurately demonstrate his or her English language proficiency.
An EL screener may be necessary after a child is found eligible for services under the IDEA
but has not yet been determined to be an EL. In developing, reviewing, or revising the IEP
for a student with limited English proficiency, one of the special factors that the IEP Team
must consider is how the language needs of the student relate to the student's IEP (34 CFR
§300.324(a)(2)(ii) and (b)(2)). For a description of the IEP Team participants, see 2014 Qs
and As question four. Thus, the student’s ELP level indicated by the EL screener could
provide information that the IEP Team could use in ascertaining the student’s language
needs and ensuring that the student receives a program of special education and related
services, and supplementary aids and services, designed to enable the student to advance
appropriately toward attaining his or her annual IEP goals and to be involved and make
progress in the general education curriculum (34 CFR §300.320(a)(4)(iv)). Also, it may be
necessary to revisit EL determinations for students with disabilities who were previously
identified as ELs based on a regular EL screener, but who may have been inappropriately
identified as ELs based on their disabilities due to lack of accommodations or an alternate
EL screener.
15. Can IDEA funds be used to identify a student with a disability, or a student
suspected of having a disability, as an EL?
Yes. It may be possible to use IDEA funds in connection with the EL screening process, as
long as using those funds is consistent with the requirements in Part B of the IDEA.3 IDEA
Part B consists of the Grants to States program for children with disabilities ages three
through 21, authorized by section 611 of the IDEA, and the Preschool Grants program for
children with disabilities ages three through five, authorized by section 619 of the IDEA.
There are two possible funding sources:


IDEA Part B funds reserved for other State-level activities (34 CFR §§300.704(b)
(Grants to States) and 300.814 (Preschool Grants)); and



Subgrants to eligible LEAs for the provision of special education and related
services (34 CFR §§300.705 (Grants to States) and 300.815-300.816 (Preschool
Grants)).

It may be permissible for States and LEAs to use a portion of these funds to support the
development and provision of an EL screener designed specifically for students with
disabilities, and for appropriate accommodations for students with disabilities on the regular
EL screener.
3

Funds paid to a State under Part B of the Act, including Part B funds reserved for other State-level activities,
must be expended in accordance with all of the provisions of 34 CFR Part 300 (34 CFR §300.162(a)).
Amounts provided to the LEA under Part B of the Act must be expended in accordance with the applicable
provisions of 34 CFR Part 300 (34 CFR §300.202(a)(1)).

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16. Does Federal law provide that ELs may not be evaluated for special education
services for a certain period of time?
No. There is no such requirement in either the ESEA or the IDEA. Specifically, under the
IDEA, States and LEAs are required to have policies and procedures to ensure that all
children with disabilities residing in the State, and who are in need of special education and
related services, are identified, located, and evaluated (34 CFR §§300.111 and 300.201).
This obligation, known as “child find,” is fully applicable regardless of a child’s ELP level,
and includes highly mobile children and migrant children suspected of having a disability
under the IDEA (34 CFR §300.111(c)(2)).
The LEA proposing to conduct an initial evaluation to determine whether a child qualifies as
a child with a disability under 34 CFR §300.8 must, after providing notice, obtain informed
consent from the child’s parent before conducting the evaluation (34 CFR §300.300(a)).4
Once parental consent is obtained, the evaluation must occur in a timely manner.
Specifically, under 34 CFR §300.301(c), the initial evaluation must be conducted within 60
days of receiving parental consent for the evaluation or, if the State has established a
timeframe within which the evaluation must be conducted, within the State-established
timeframe.
17. How can States ensure the appropriate identification of ELs with disabilities and
prevent the over/under identification of ELs for special education services?
To ensure that EL students with disabilities are appropriately evaluated and determined
eligible for special education and related services, public agencies must adhere to applicable
IDEA procedures in conducting evaluations and reevaluations of ELs (34 CFR §§300.300300.311).
As explained in the Dear Colleague Letter: English Learner Students and Limited English
Proficient Parents jointly issued on January 7, 2015, by the Department and the Department
of Justice (2015 DCL):5
The Departments are aware that some school districts have a formal or informal
policy of “no dual services,” i.e., a policy of allowing students to receive either EL
services or special education services, but not both. Other districts have a policy of
delaying disability evaluations of EL students for special education and related
services for a specified period of time based on their EL status. These policies are
impermissible under the IDEA and Federal civil rights laws... (p. 25)

4

Notice must be provided consistent with 34 CFR §§300.503 and 300.504. Parental consent must be obtained
consistent with 34 CFR §300.9.
5

The DCL can be accessed at the following link: http://www2.ed.gov/about/offices/list/ocr/letters/colleagueel-201501.pdf .

4

Delaying a referral for an evaluation can result in the under-identification of ELs as
“children with disabilities” under the IDEA. There is also the possibility of overidentification of ELs as having a disability if a school district wrongly determines that a
student’s language difficulties are due to a disability rather than lack of English language
proficiency. Such determinations are inconsistent with the IDEA, which provides that a
child’s limited English proficiency may not be the determinant factor in the child’s
disability determination (34 CFR §300.306(b)(1)(iii) and (2)).
To ensure that students, including ELs, are appropriately evaluated, the IDEA specifies that,
among other requirements, assessments and other evaluation materials must be selected and
administered so as not to be discriminatory on a racial or cultural basis, and be provided and
administered in the student's native language or other mode of communication and in the
form most likely to yield accurate information on what the student knows and can do
academically, developmentally, and functionally, unless it is clearly not feasible to do so (34
CFR §300.304(c)(1)).
Under the IDEA, a group of qualified professionals and the child’s parent determines
whether a child is a “child with a disability,” as defined in the IDEA (34 CFR §300.306(a)).
In interpreting evaluation data for the purpose of determining a student’s eligibility and
educational needs, this group must draw upon information from a variety of sources,
including aptitude and achievement tests, parent input, teacher recommendations, and social
or cultural background (34 CFR §300.306(c)(1)(i)). Therefore, proper application of these
IDEA evaluation and eligibility requirements should ensure the appropriate identification of
ELs as children with disabilities under IDEA.
The following resources address practices that are important in avoiding misidentification of
ELs as students with learning disabilities:


“Tools and Resources for Identifying All English Learners,” available at
http://www2.ed.gov/about/offices/list/oela/english-learner-toolkit/index.html;



A report titled, “Processes and Challenges in Identifying Learning Disabilities
Among English Language Learner Students in Three New York State Districts,”
prepared for the Institute of Education Sciences at the U.S. Department of Education
in February 2010, available at
http://ies.ed.gov/ncee/edlabs/projects/project.asp?projectID=116; and



A report titled, “Identifying and Supporting English Learner Students with Learning
Disabilities: Key Issues in the Literature and State Practice,” prepared for the
Institute of Education Sciences at the U.S. Department of Education in July 2015,
available at http://ies.ed.gov/pubsearch/pubsinfo.asp?pubid=REL2015086.

5

Role of the IEP Team
18. What guidance and resources are available to assist IEP Teams in determining
whether an EL with a disability should take the regular ELP assessment with
accommodations or an alternate assessment?
As explained in the 2014 Qs and As question eight, States are required to develop guidelines
for IEP Teams to use in determining what are appropriate accommodations on the annual
ELP assessment and whether an EL with a disability needs to take an alternate assessment to
the annual ELP assessment (34 CFR §300.160(b)-(c)).
Federal resources to support States in this area are offered through Department-funded
technical assistance centers such as the National Center for Educational Outcomes (NCEO)
and the Center for Parent Information and Resources (CPIR). CPIR provides an annotated
list of resources that address how to make determinations regarding accommodations and
alternate assessments.6 While these resources do not necessarily address ELP assessments,
their content is generally applicable to ELP assessments.
The following are examples from the list:7
Accommodations Manual: How to Select, Administer, and Evaluate Use of
Accommodations for Instruction and Assessment of Students with Disabilities
This includes fact sheets and teacher tools.
www.osepideasthatwork.org/toolkit/accommodations_manual.asp;
Online Accommodations Bibliography
NCEO resource on the range of possible accommodations and what empirical research
studies have to say about the effects of various testing accommodations for students with
disabilities.
www.cehd.umn.edu/NCEO/OnlinePubs/AccommBibliography/AccomStudies.htm;
Special Topic Area: Accommodations for Students with Disabilities
NCEO answers frequently asked questions about testing accommodations for students
with disabilities, connects you with State policies and research in this area, and offers a
number of research-based publications to guide policy and decision-making.
www.education.umn.edu/NCEO/TopicAreas/Accommodations/Accomtopic.htm;
Alternate Assessments – Frequently Asked Questions
This FAQ is available as part of the OSEP Ideas That Work Toolkit.
www.osepideasthatwork.org/parentkit/AltAssessFAQ.asp; and

6

These resources can be accessed at the following link: www.parentcenterhub.org/repository/assessmentaccommodations/.
7

Information about resources included in the responses to questions 17 and 18 is provided for the reader’s
convenience and is included here to offer examples of the many resources that educators, parents, advocates,
administrators, and other interested parties may find helpful and use at their discretion. The inclusion of links
to resources does not reflect their importance, nor is such inclusion intended to endorse any views expressed or
materials provided.

6

The National Alternate Assessment Center
The Center offers information and technical assistance on the design and administration
of high-quality alternate assessments.
www.naacpartners.org/Default.aspx.
Accommodations and Alternate Assessments
19. May States develop alternate ELP standards for ELs with disabilities to define
what they know in English and are able to do in English?
No. Under Title III of the ESEA, States must develop and implement one set of ELP
standards, which must be aligned to the State’s academic content and student academic
achievement standards (section 3113(b)(2) of the ESEA).
20. Are all ELs with disabilities expected to have their ELP assessed in the same way as
ELs without disabilities?
The same ELP standards are the basis for the annual ELP assessment under section
1111(b)(7) of the ESEA, and are required for all ELs with and without disabilities.
However, appropriate accommodations can be provided on the regular ELP assessment, or
an alternate assessment can be developed for an EL with disabilities who cannot take the
regular ELP assessment even with accommodations as determined by the student’s IEP
Team, so that the student can demonstrate growth and proficiency in the English language.
See 2014 Qs and As eight through 10.
21. May a State use different cut scores or achievement standards on the State ELP
assessment for determining whether ELs with disabilities are proficient in English?
No. There is no provision in the ESEA that permits alternate achievement standards on the
annual ELP assessment. However, to ensure that the language proficiency of ELs with
disabilities is validly and reliably assessed, the IEP Team must determine whether an EL
with a disability needs to receive appropriate accommodations on the regular annual ELP
assessment, or needs to take an alternate assessment to the regular ELP assessment if he or
she cannot take the regular ELP assessment, even with appropriate accommodations.

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22. May a State use Title III funds to develop an alternate ELP assessment for students
with disabilities?
As stated in the Department’s October 2008 supplement, not supplant guidance,8 most
States will not be able to use Title III funds to pay for the cost of developing ELP
assessments without violating the supplement, not supplant provision under section 3115(g)
of the ESEA because Title I requires States to administer annual ELP assessments.
While States cannot generally use Title III funds to develop alternate ELP assessments,
section 6111(2)(B) of the ESEA provides funds for developing or improving ELP
assessments, including alternate ELP assessments, necessary to comply with section
1111(b)(7) of the ESEA.

23. May a State use Title III funds for SEA capacity-building activities, such as
funding a meeting to gather stakeholders to make determinations about how to
develop an alternate ELP assessment?
A State may be able to use Title III funds for these types of activities, depending on the
circumstances. For example, States may use Title III State-level activity funds for planning
and interagency coordination activities related to the formula subgrants, under section
3111(b)(2)(B) of the ESEA. See question 22, however, regarding the limitations on using
Title III funds to develop ELP assessments.
Other Considerations
24. What responsibilities do States and LEAs have for students who were identified as
ELs with disabilities but whose parents/guardians refused EL services, with regard to
the annual ELP assessment?
The ESEA does not require that parents provide consent before an LEA or school screens
and assesses a child as a potential EL in need of language acquisition services. In addition,
section 1111(b)(7) of the ESEA requires an annual assessment of English proficiency of all
students with limited English proficiency in the schools served by the State.
Parents can refuse to have their children enrolled in an EL program. However, LEAs may
not recommend that parents decline all or some services within an EL program for any
reason, and a parent’s decision to opt out must be knowing and voluntary. See 2015 DCL,
pp. 29-32. When a parent declines participation in services funded by Title III, the LEA
must still assess the EL student’s ELP with the annual ELP assessment, until that student no
longer meets the definition of EL. If the EL is a student with a disability, the same analysis
outlined in the 2014 Qs and As questions eight through 10 applies regarding whether the
student should be provided accommodations or an alternate assessment to the annual ELP
assessment.
8

This guidance can be accessed at the following link: http://www2.ed.gov/programs/sfgp/legislation.html.

8

Even if parents opt their children out of an EL program or specific EL services, the children
retain their status as EL students. The LEA retains a responsibility to take the “affirmative
steps” required by Title VI of the Civil Rights Act of 1964 and the “appropriate action”
required by the Equal Educational Opportunities Act of 1974 to provide these children
access to its educational programs. To ensure the needs of opt-out EL students are being
met, LEAs must periodically monitor the progress of students who have opted out of EL
programs or certain EL services and must inform the EL student’s parents if the EL student
does not demonstrate appropriate growth in English proficiency or academic subjects due to
language barriers. LEAs may meet their obligation to serve opt-out EL students in a variety
of ways (e.g., adequate training to classroom teachers on second language acquisition). See
2015 DCL, pp. 29-32.
For additional information on the rights of EL students, see the Office for Civil Rights
Questions and Answers on the Rights of Limited-English Proficient Students, which can be
accessed at the following link: http://www2.ed.gov/about/offices/list/ocr/qa-ell.html.

9


UNITED STATES DEPARTMENT OF EDUCATION

JUL 18 2014
Dear Chief State School Officers:
We write to transmit the attached guidance document regarding the inclusion of English Learners
(ELs) with disabilities in English language proficiency (ELP) assessments under Titles I and III
of the Elementary and Secondary Education Act of 1965, as amended (ESEA). These are
assessments designed to measure the progress of ELs in attaining English language proficiency.
The Office of Elementary and Secondary Education (OESE) in the U.S. Department of
Education (Department) administers the ESEA, and the Department's Office of Special
Education and Rehabilitative Services (OSERS) administers Part B of the Individuals with
Disabilities Education Act (IDEA). States and local educational agencies (LEAs) have raised
questions to the Department related to the participation of ELs with disabilities in the annual
State ELP assessment and the inclusion of their ELP assessment results in Title III Annual
Measurable Achievement Objectives (AMAOs). Accordingly, OESE and OSERS are issuing the
attached guidance to help States and LEAs understand how Part B of the IDEA and Titles I and
III of the ESEA address the inclusion of ELs with disabilities in annual State ELP assessments.
The attached guidance consists of frequently asked questions in five sections: (1) General
Obligations; (2) Role of the individualized education program (IEP) Team; (3) Accommodations
and Alternate Assessments; (4) Exit from EL Status; and (5) AMAOs. If you have additional
questions related to this document, please contact Supreet Anand in OESE at
Supreet.Anand@ed.gov or Jessica Spataro in OSERS at Jessica.Spataro@ed.gov. Thank you for
your continued efforts to ensure successful educational outcomes for all children.
Sincerely,

Deborah S. Delisle
Assistant Secretary
Office of Elementary and
Secondary Education

Attachment
cc: State Directors of Special Education
Title III State Directors
Title I State Directors

Michael K. Yudin
Acting Assistant Secretary
Office of Special Education and
Rehabilitative Services


Although ED has issued new guidance that addresses these students under the Elementary and
Secondary Education Act, as amended by the Every Student Succeeds Act, this guidance remains in
effect through the 2016–2017 school year.

Questions and Answers Regarding Inclusion of English Learners with
Disabilities in English Language Proficiency Assessments and Title III Annual
Measurable Achievement Objectives
Purpose and Background: 1
Education personnel in States, local educational agencies (LEAs), and schools across the nation
have described challenges in developing and administering English language proficiency (ELP)
assessments required under Titles I and III of the Elementary and Secondary Education Act of
1965, as amended (ESEA), to students who are both English Learners (ELs) and students with
disabilities. Some of these challenges include: 1) ensuring that all ELs with disabilities
participate in the annual State ELP assessment; 2) administering an annual State ELP assessment
that accurately measures the English language proficiency of students with disabilities, including
providing individual appropriate accommodations in accordance with a student’s individualized
education program (IEP), as required by the Individuals with Disabilities Education Act (IDEA);
3) administering appropriate alternate assessments to the annual State ELP assessment in
accordance with the student’s IEP, as required by the IDEA; and 4) determining how to include
the results of annual State ELP assessments for students with disabilities in making
accountability determinations under the ESEA.
The questions and answers included in this document are intended to help States and LEAs
address these challenges, and more broadly, to understand how Part B of the IDEA and Titles I
and III of the ESEA address the inclusion of ELs with disabilities in annual State ELP
assessments. These are assessments designed to measure the progress of ELs in attaining English
language proficiency.
In this document, the term “English Learner” (EL) means students who are considered limited
English proficient (LEP) as defined in section 9101(25) of the ESEA. 2 The term “students with
disabilities,” as it is used in this document, refers to “children with disabilities” who are eligible
for services under the IDEA, as defined in section 602(3) of that Act and 34 CFR §300.8. While
students with disabilities are also protected under Section 504 of the Rehabilitation Act of 1973
(Section 504) and Title II of the Americans with Disabilities Act (ADA), which are civil rights
1

The Department has determined that this document is a “significant guidance document” under the Office of Management and
Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), available at
www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf. The purpose of this guidance is to provide
States, local educational agencies, and schools with information to assist them in meeting their obligations under Titles I and III
of the Elementary and Secondary Education Act of 1965, as amended. This guidance does not impose any requirements beyond
those required under applicable law and regulations. It does not create or confer any rights for or on any person. If you are
interested in commenting on this guidance or if you have further questions that are not answered here, please e-mail
OESEGuidanceDocument@ed.gov using the subject “Inclusion of English Learners with Disabilities” or write to us at the
following address: U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW,
Washington, D.C. 20202.
2
The ESEA defines the term “limited English proficient” (LEP) in part as students “…whose difficulties in speaking, reading,
writing, or understanding the English language may be sufficient to deny the individual the ability to meet the State's proficient
level of achievement on State assessments…” (ESEA section 9101(25)). The complete definition of limited English proficient is
available at:
www2.ed.gov/policy/elsec/leg/esea02/pg107.html#sec9101.www2.ed.gov/policy/elsec/leg/esea02/pg107.html#sec9101www2.ed.
gov/policy/elsec/leg/esea02/pg107.html#sec9101. For Title III purposes, the U.S. Department of Education (ED) refers to the
four domains of the English language as “speaking, listening, reading and writing,” as set forth in the Notice of Final
Interpretations for Title III (73 Fed.Reg. 61828, 61829 n.5).

1

laws that prohibit disability discrimination, this document focuses on assessment requirements
under the IDEA and does not address the rights of students with disabilities under Section 504
and Title II of the ADA. 3
Titles I and III of the ESEA require States and LEAs to annually assess the English language
proficiency of all ELs enrolled in public schools in the domains of speaking, listening, reading,
and writing (ESEA sections 1111(b)(7), 3113(b)(3)(D)). One of the purposes of Title III of the
ESEA is to assist ELs in both attaining ELP and meaningfully accessing academic content in
English (ESEA section 3102). Section 612(a)(16)(A) of the IDEA requires that all students with
disabilities be included in all general State and districtwide assessment programs, including
assessments described under section 1111 of the ESEA, with appropriate accommodations and
alternate assessments, where necessary, as indicated in their respective IEPs. 4 This requirement
includes the annual State ELP assessment.
According to the 2013 Biennial Report to Congress on implementation of the ESEA Title III
State Formula Grant Program (school years 2008–2010), there were 4,649,316 ELs enrolled in
U.S. schools in the 2009–2010 school year, or nearly ten percent of the roughly 50 million
students attending U.S. elementary and secondary schools. 5 There are over 500,000 ELs with
disabilities in public schools in the U.S., based on the most recent available data. 6
This document is intended to assist States and LEAs in serving, assessing, and including in Title
III accountability measures, those ELs who are also students with disabilities.

3
Section 504 and Title II of the ADA protect all students with disabilities, as defined in 29 U.S.C. §§705 (9) and (20) and 42
U.S.C. §12102, including students with disabilities who are not eligible for services under the IDEA. These students (sometimes
referred to as “504-only” students) are entitled to appropriate testing accommodations under Section 504 and Title II of the ADA.
More information about Section 504 and Title II of the ADA is available on the Web site of the Office for Civil Rights (OCR) in
the U.S. Department of Education, www.ed.gov/ocr/index.html. In addition, Title VI of the Civil Rights Act of 1964 (Title VI) is
a Federal civil rights law that applies to EL students, including ELs with disabilities. OCR is responsible for enforcing these laws.
As reflected in OCR policy, schools must appropriately provide alternative language services to EL students to ensure
meaningful access to the education program. A school must make an individualized determination of the student’s ELP needs.
See www.ed.gov/OCR for more information.
4
An IEP is a written statement for each child with a disability that is developed, reviewed, and revised in a meeting in
accordance with 34 CFR §§300.320-300.324 (34 CFR §300.320(a)). In question four below, we describe the IEP requirements
relevant to the participation of students receiving services under Part B of the IDEA in Statewide assessment programs.
5
The Biennial Report to Congress is based upon State-reported data reported annually to the U.S. Department of Education
through the Consolidated State Performance Report.
6
In 2012, the most recent year for which data were collected, 9.07 percent of all students with disabilities ages 6 through 21 who
were enrolled in public schools in the U.S., outlying areas, and freely associated States (527,970) were LEP. These numbers do
not include those ELs who have been determined to have a disability under Section 504 but who do not qualify for special
education services under the IDEA. Source: U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB # 18750240: “IDEA Part B Child Count and Educational Environments Collection,” 2012.
Available at https://explore.data.gov/Education/2012-IDEA-Part-B-Child-Count-and-Educational-Envir/5t72-4535.
The most recent available data on ELs indicate that 12.30% of LEP students enrolled in language instruction educational
programs in U.S. public schools were students with disabilities (540,660) during the 2012-2013 school year. U.S. Department of
Education, SY 2012-13 EDFacts Data Group 123. Note that this data group consists of a count of LEP students in language
instruction educational programs, not all LEP students.

2

Table of Contents:
General Obligations
1. What are the Federal requirements for including ELs with disabilities in the annual State ELP
assessment?
2. What are the ways that ELs with disabilities can participate in the annual State ELP
assessment?
3. What steps can States take to ensure that all ELs with disabilities are included in the annual
State ELP assessment?
Role of the IEP Team
4. What is the responsibility of the IEP Team in determining how ELs with disabilities
participate in the annual State ELP assessment?
5. Should IEP Teams for ELs with disabilities include persons with expertise in second
language acquisition?
6. What must an LEA and IEP Team do to ensure that limited English proficient parents
understand and are able to meaningfully participate in IEP Team meetings at which the
child's participation in the annual State ELP assessment is discussed?
7. Can an IEP Team determine that a particular EL with a disability should not participate in the
annual State ELP assessment?
Accommodations and Alternate Assessments
8. What actions must States take to meet the IDEA requirements related to accommodations
and alternate assessments for the annual State ELP assessment?
9. How can an IEP Team determine whether an EL with a disability should receive
accommodations in order to take the annual State ELP assessment?
10. How can an IEP Team determine whether an EL with a disability should take an alternate
assessment instead of the regular ELP assessment?
Exit from EL Status
11. When and how can an EL with a disability be exited from EL status?
Annual Measurable Achievement Objectives (AMAOs)
12. Must the ELP assessment results for all ELs with disabilities be included in Title III AMAOs
1 and 2?
13. Are the ELP assessment results for ELs with disabilities relevant to AMAO 3 of Title III?

3

Questions and Answers:
General Obligations
1. What are the Federal requirements for including ELs with disabilities in the annual
State ELP assessment?
The IDEA requires each State and its LEAs to ensure that a free appropriate public education
(FAPE) is made available to all eligible children with disabilities residing in the State in
mandatory age ranges, beginning at age 3 and possibly lasting to a child’s 22nd birthday,
depending on State law or practice (34 CFR §§300.101-300.102). These entities also must ensure
that the IDEA’s rights and protections are extended to eligible children and their parents (34
CFR §§300.100 and 300.201). The IDEA and its regulations require that all students with
disabilities be included in all general State assessment programs, including assessments
described under section 1111 of the ESEA, with appropriate accommodations and alternate
assessments, if necessary, as indicated in their respective IEPs (section 612(a)(16)(A) of the
IDEA, 34 CFR §300.160(a), and section 1111(b) of the ESEA). 7
Both Titles I and III of the ESEA require States and LEAs to annually assess the English
proficiency of all ELs in the State enrolled in public schools in grades kindergarten through
twelve in the domains of speaking, listening, reading, and writing (sections 1111(b)(7) and
1123(b)(3)(D) of the ESEA). Accordingly, as part of a general State assessment program, all ELs
with disabilities must participate in the annual State ELP assessment with or without appropriate
accommodations or by taking an alternate assessment, if necessary, consistent with their IEPs.
The IDEA, Titles I and III of the ESEA, and Federal civil rights laws require that all children,
including children with disabilities, take Statewide assessments that are valid and reliable for the
purpose for which they are being used, and this includes the annual ELP assessment.
2. What are the ways that ELs with disabilities can participate in the annual State ELP
assessment?
ELs with disabilities can participate in the annual State ELP assessment in the following ways, as
determined by their respective IEP Teams:
a) in the regular State ELP assessment without accommodations (in the same way as ELs
without disabilities take the assessment);
b) in the regular State ELP assessment through the use of one or more appropriate
accommodations as indicated in the student’s IEP; or
c) in an alternate assessment aligned to State ELP standards, if the IEP Team determines
that the student cannot participate in the regular State ELP assessment, with or without
appropriate accommodations.
7
Because the annual ELP assessment is a general State assessment administered to all ELs and is an assessment described in
section 1111 of the ESEA, this document will refer to the IDEA’s requirement for including all children with disabilities,
including ELs with disabilities, in all general State assessment programs.

4

(See questions eight through ten for more details.)
3. What steps can States take to ensure that all ELs with disabilities are included in the
annual State ELP assessment?
Consistent with 34 CFR §300.160(b)(2)(i) and (c)(1), States must develop guidelines for the
provision of appropriate accommodations, for each assessment, that do not invalidate test scores,
and guidelines for the participation of children with disabilities in alternate assessments who
cannot take the regular assessment, even with accommodations. (See question 8.) These
guidelines apply to all alternate assessments, not just to Title I alternate assessments in
reading/language arts, math, and science, and should include criteria for IEP Teams to use in
determining which ELs with disabilities should take an alternate assessment to the regular annual
State ELP assessment. In developing such guidelines, States should seek input from appropriate
individuals with expertise in language acquisition and in the provision of services to students
with disabilities (such as speech-language pathologists who are knowledgeable about second
language acquisition and the language needs of students with disabilities), bilingual/English as
Second Language (ESL) teachers, or other professionals with expertise in language acquisition.
States should also ensure through monitoring that these policies are being implemented at the
LEA and/or school levels.
In carrying out the steps described above, it would be permissible for States to use a portion of
their IDEA Part B funds reserved for State-level activities to support the development and
provision of appropriate accommodations for children with disabilities, or for the development
and provision of alternate assessments that are valid and reliable for assessing the performance of
students with disabilities, in accordance with sections 1111(b) and 6111 of the ESEA (34 CFR
§300.704(b)(4)(x)).
Role of the IEP Team
4. What is the responsibility of the IEP Team in determining how ELs with disabilities
participate in the annual State ELP assessment?
Decisions about the content of a student’s IEP, including whether a student must take a regular
State assessment (in this case, the ELP assessment), with or without appropriate
accommodations, or an alternate assessment in lieu of the regular ELP assessment, must be made
by the student's IEP Team. These decisions cannot be made unilaterally by a single teacher or
other school employee outside of the IEP process described in 34 CFR §§300.320 through
300.324.
The IEP Team is responsible for developing the IEP for each student with a disability, including
each EL with a disability, at an IEP Team meeting which includes school officials and the child’s
parents. In question five below, we provide more information about IEP Team participants.
Under the IDEA regulations at 34 CFR §300.320(a)(6), the IEP must include:
(i) A statement of any individual appropriate accommodations that are necessary
to measure the academic achievement and functional performance of the child
on State and districtwide assessments consistent with section 612(a)(16) of the
Act; and
5

(ii) If the IEP Team determines that the child must take an alternate assessment
instead of a particular regular State or districtwide assessment of student
achievement, a statement of why—
(A) The child cannot participate in the regular assessment; and
(B) The particular alternate assessment selected is appropriate for the child;
IEPs for ELs with disabilities must comply with all of the other IDEA requirements in 34 CFR
§§300.320-300.324.
5. Should IEP Teams for ELs with disabilities include persons with expertise in second
language acquisition?
Yes. It is important that IEP Teams for ELs with disabilities include persons with expertise in
second language acquisition and other professionals, such as speech-language pathologists, who
understand how to differentiate between limited English proficiency and a disability. The
participation of these individuals on the IEP Team is essential in order to develop appropriate
academic and functional goals for the child and provide specially designed instruction and the
necessary related services to meet these goals.
The IDEA regulation in 34 CFR §300.321(a) specifies that the participants on each child’s IEP
Team include:
(1) The parents of the child;
(2) Not less than one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment);
(3) Not less than one special education teacher of the child, or, where appropriate, not
less than one special education provider of the child;
(4) A representative of the public agency who –
(i.) Is qualified to provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with disabilities;
(ii.)Is knowledgeable about the general education curriculum; and
(iii.) Is knowledgeable about the availability of resources of the public agency.
(5) An individual who can interpret the instructional implications of evaluation results,
who may be a member of the team described in paragraphs (a)(2) through (a)(6) of
this section;
(6) At the discretion of the parent or the agency, other individuals who have knowledge
or special expertise regarding the child, including related services personnel as
appropriate; and
(7) Whenever appropriate, the child with a disability.
It is important that IEP Teams for ELs with disabilities include a public agency representative, as
described previously, who is qualified to provide or supervise the provision of specially designed
instruction to meet the unique needs of ELs with disabilities. This representative should be
knowledgeable about the availability of agency resources needed to enable ELs with disabilities
6

to meaningfully access the general education curriculum. This will ensure that the services
included in the EL student’s IEP are appropriate for the student and can actually be provided.
Under the IDEA, the IEP Team must consider a number of special factors in developing,
reviewing, or revising a child’s IEP. Under 34 CFR §300.324(a)(2)(ii), the IEP Team must “[i]n
the case of a child with limited English proficiency, consider the language needs of the child as
those needs relate to the child’s IEP.” Therefore, to implement this requirement, the IEP Team
should include participants who have the requisite expertise about the student’s language needs.
An IEP Team that includes appropriate members should be able to make thoughtful decisions
about the content of an EL’s IEP, including the manner in which the student participates in the
annual State ELP assessment. In addition, States and LEAs are encouraged to provide other IEP
Team members with appropriate training in language acquisition and the unique needs of ELs
with disabilities.
6. What must an LEA and IEP Team do to ensure that limited English proficient parents
understand and are able to meaningfully participate in IEP Team meetings at which the
child's participation in the annual State ELP assessment is discussed?
The IDEA requires that the parents of a child with a disability be given the opportunity to
participate in meetings with respect to the identification, evaluation, or educational placement of
a child with a disability, or the provision of a FAPE to the child (34 CFR §300.501(b)(1)).
Regarding the participation of a parent whose native language is other than English in IEP Team
meetings, the IDEA regulations require each public agency to take whatever action is necessary
to ensure that the parent understands the proceedings of the IEP Team meeting, including
arranging for an interpreter. (34 CFR §300.322(e)). When parents themselves are LEP, Title VI
of the Civil Rights Act of 1964 also requires that the LEA must effectively communicate with
parents in a manner and form they can understand, such as by providing free interpretation
and/or translation services. Under Title VI, an LEA is required to provide LEP parents with
meaningful access to the same information that is provided to non-LEP parents.
7. Can an IEP Team determine that a particular EL with a disability should not participate
in the annual State ELP assessment?
No. All ELs, including those with disabilities, must participate in the annual State ELP
assessment, with or without accommodations, or must take an appropriate alternate assessment,
if necessary (section 1111(b)(7) of the ESEA and section 612(a)(16)(A) of the IDEA).
(See the response to question one above.)

7

Accommodations and Alternate Assessments
8. What actions must States take to meet the IDEA requirements related to
accommodations and alternate assessments for the annual State ELP assessment?
Under the IDEA, a State must:
1) Develop guidelines for the provision of appropriate accommodations. The State’s
guidelines must identify only those accommodations for each assessment that do not
invalidate the score, and instruct IEP Teams to select, for each assessment, only those
accommodations that do not invalidate the score (34 CFR §300.160(b)); and
2) Develop and implement alternate assessments and guidelines for the participation of
students with disabilities in alternate assessments for those students who cannot
participate in regular assessments, even with accommodations, as indicated in their
respective IEPs (34 CFR §300.160(c)(1)). Because the annual ELP assessment is a State
assessment, these guidelines must also address the participation of ELs with disabilities
in alternate assessments to the regular ELP assessment.
9. How can an IEP Team determine whether an EL with a disability should receive
accommodations in order to take the annual State ELP assessment?
An IEP Team must make this determination on a case-by-case basis in light of the particular
needs of an EL with a disability. As part of the process of determining the appropriate
accommodations for ELs with disabilities on the annual State ELP assessment, the IEP Team
must consider the student’s language needs as they relate to his or her IEP (34 CFR
§300.324(a)(2)(ii)). The IEP Team then needs to determine if there is an appropriate Stateapproved accommodation(s) for the annual State ELP assessment that would not invalidate the
test score, which would allow the student to participate in the assessment to demonstrate what
the student knows and can do. If the IEP Team determines that the student needs
accommodations to take the regular ELP assessment or an alternate assessment, then the
student’s IEP must contain a statement of the individual appropriate accommodations that are
necessary to measure the academic achievement and functional performance of the student on
that State assessment (34 CFR §300.320(a)(6)(i)). Appropriate and allowable accommodations
used for testing should generally be the same as those used in the classroom in accordance with
the student’s IEP.
An IEP Team could determine that accommodations need to be used for the entire ELP
assessment, or only for part of the assessment. For example, an accommodation that is
appropriate for only one of the four domains of language (speaking, listening, reading, or
writing) would be used just for that particular subtest. The IEP Team will need to ensure that the
student is familiar with the accommodations to be used for the ELP assessment, that the student
is using similar accommodations in classroom instruction, and that the student could benefit from
similar accommodations on the ELP assessment.

8

10. How can an IEP Team determine whether an EL with a disability should take an
alternate assessment instead of the regular ELP assessment?
An IEP Team must make this determination on a case-by-case basis in light of the particular
needs of an EL with a disability. If an IEP Team for a particular EL with a disability determines
that the student cannot participate in the regular State ELP assessment, even with individual
appropriate accommodations, then the IEP Team would determine that the student needs to take
an alternate assessment to the regular ELP assessment. In this situation, the Team must include
in the child’s IEP a statement of:
(1) Why the child cannot participate in the regular ELP assessment; and
(2) Why the particular alternate assessment selected is appropriate for the child (34
CFR §300.320(a)(6)(ii)).
Consistent with applicable State guidelines for alternate assessments, States need to identify how
an EL with a disability can be appropriately and validly assessed through an alternate assessment
to guide IEP Team decisions in this area. An alternate ELP assessment could be a traditional
paper and pencil assessment, or another appropriate method for assessing the student’s language
proficiency, such as a computer-based adaptive assessment. Regardless of what alternate
assessment is used, it must be a valid and reliable assessment that: 1) provides evidence of
progress toward the attainment of English proficiency; 2) is aligned with State ELP standards;
and 3) yields a valid score. ESEA section 3122(a)(3); Notice of Final Interpretations for Title III,
Interpretation #2 (Oct. 17, 2008), 73 Fed. Reg. 61828, 61831-61833. States should examine their
alternate assessment guidelines to ensure that they address the participation of ELs with
disabilities in alternate assessments if those students cannot be appropriately assessed with the
regular ELP assessment, even with individual appropriate accommodations.
Exit from EL Status
11. When and how can an EL with a disability be exited from EL status?
An EL with a disability can be “exited” from EL status when he/she no longer meets the
definition of an EL (see footnote on page 1). This occurs when the student meets the State’s
definition of “proficient” in English. Depending on the State’s definition of proficiency, the
LEA, school personnel, and/or the IEP Team may have input into the decision of whether a
student is proficient in English.
However, there is no provision in the IDEA that would authorize the IEP Team to remove the
“EL” designation before the student has attained English proficiency. In addition, other LEA
and/or school personnel do not have the authority under Federal law to remove a student’s EL
designation before the student has been deemed proficient in English solely because the student
has an IEP.

9

Annual Measureable Achievement Objectives (AMAOs)
12. Must the ELP assessment results for all ELs with disabilities be included in Title III
AMAOs 1 and 2?
Yes. Title III AMAOs have three parts, two of which (AMAOs 1 and 2) are based upon the State
ELP assessment. Results from ELP assessments for all ELs, including students with disabilities,
must be included in both AMAO 1 (making progress in English) and AMAO 2 (attaining ELP),
as described in section 3122(a)(3) of the ESEA. For some ELs with disabilities, accommodations
may be necessary on the ELP assessment (see question nine), and an alternate ELP assessment
may be necessary for an even smaller group of ELs with disabilities (see question ten), but all
ELP assessment results must be included in the Title III accountability calculations under
AMAOs 1 and 2.
13. Are the ELP assessment results for ELs with disabilities relevant to AMAO 3 of
Title III?
No. Under Title III, the third AMAO (AMAO 3) is based on making adequate yearly progress
(AYP) under Title I for the EL subgroup. AYP is comprised of meeting annual measurable
objectives (AMOs) based on proficient achievement on State reading/language arts and
mathematics assessments, achieving 95 percent participation on those assessments, and meeting
the other academic indicator, which is graduation rate for high schools. The ELP assessment
results are not a factor in AYP calculations.
A State that is participating in ESEA flexibility may have received a waiver of making AYP
determinations. For purposes of measuring AMAO 3, therefore, the State would determine
whether the EL subgroup met the State’s AMOs in reading/language arts and mathematics, the
95 percent participation rate requirement, and, for an LEA that includes one or more high
schools, graduation rate.
Under the Title I regulations in 34 C.F.R. §200.13(c)(2)(i), in calculating AYP or accountability
determinations under ESEA flexibility, a State may include the proficient and advanced scores of
students with the most significant cognitive disabilities who take an alternate assessment in
reading/language arts or mathematics based on alternate academic achievement standards
described in 34 C.F.R. §200.1(d), provided that the number of such scores at the LEA level and
at the State level, separately, does not exceed 1.0 percent of all students in the grades assessed.
Some ELs with disabilities may be among the students with the most significant cognitive
disabilities covered by these regulations. These regulations, however, do not apply to ELP
assessments and, consequently, to AMAOs 1 and 2.
In reporting under Title I and targeting interventions in Title I schools, States must take into
account the performance of student subgroups, including ELs and students with disabilities, on
reading/language arts and mathematics assessments. Similarly, States must report the graduation
rate of each subgroup for high schools. Thus the scores and, if applicable, graduation rate of an
EL with a disability would be included under both the EL subgroup and the students with
disabilities subgroup (as well as under any other subgroup to which the student belongs). The
ESEA does not require subgroup reporting for the ELP assessment under Title III.

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