NCEO Report 450

(d) STATEMENT OF PURPOSE—The purpose of this title is to enable schools to provide opportunities for children served to acquire the knowledge and skills contained in the challenging State content standards and to meet the challenging State performance standards developed for all children. This purpose shall be accomplished by

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(8) improving accountability, as well as teaching and learning, by using State assessment systems designed to measure how well children served under this title are achieving challenging State student performance standards expected of all children. (Improving America’s Schools Act of 1994, Section 1001(d)(8))

(C) If a State has not adopted State content standards and State student performance standards for all students, the State plan shall include a strategy and schedule for developing State content standards and State student performance standards for elementary and secondary school children served under this part in subjects as determined by the State, but including at least mathematics and reading or language arts by the end of the one-year period described in paragraph (6), which standards shall include the same knowledge, skills, and levels of performance expected of all children.

(D) Standards under this paragraph shall include—

(i) challenging content standards in academic subjects that—

(I) specify what children are expected to know and be able to do;

(II) contain coherent and rigorous content; and

(III) encourage the teaching of advanced skills;

(ii) challenging student performance standards that—

(I) are aligned with the State's content standards;

(II) describe two levels of high performance, proficient and advanced, that determine how well children are mastering the material in the State content standards; and

(III) describe a third level of performance, partially proficient, to provide complete information about the progress of the lower performing children toward achieving to the proficient and advanced levels of performance. (Improving America Schools Act of 1994, Section 1111(a)(C)(D)(i))

(17) PARTICIPATION IN ASSESSMENTS-

(A) IN GENERAL- Children with disabilities are included in general State and district-wide assessment programs, with appropriate accommodations, where necessary. As appropriate, the State or local educational agency --

(i) develops guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in State and district-wide assessment programs; and

(ii) develops and, beginning not later than July 1, 2000, conducts those alternate assessments. (Individuals with Disabilities Education Act of 1997, Section 612(a)(17)(A))

(I) ANNUAL IMPROVEMENT FOR SCHOOLS- Each year, for a school to make adequate yearly progress under this paragraph--

(i) each group of students described in subparagraph (C)(v) must meet or exceed the objectives set by the State under subparagraph (G), except that if any group described in subparagraph (C)(v) does not meet those objectives in any particular year, the school shall be considered to have made adequate yearly progress if the percentage of students in that group who did not meet or exceed the proficient level of academic achievement on the State assessments under paragraph (3) for that year decreased by 10 percent of that percentage from the preceding school year and that group made progress on one or more of the academic indicators described in subparagraph (C)(vi) or (vii); and

(ii) not less than 95 percent of each group of students described in subparagraph (C)(v) who are enrolled in the school are required to take the assessments, consistent with paragraph (3)(C)(xi) and with accommodations, guidelines, and alternative assessments provided in the same manner as those provided under section 612(a)(17)(A) of the Individuals with Disabilities Education Act and paragraph (3), on which adequate yearly progress is based, except that the 95 percent requirement described in this clause shall not apply in a case in which the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. (No Child Left Behind Act of 2001, Section 1111(b)(2)(I)), emphasis added))

(c)(1) For students with the most significant cognitive disabilities who take an alternate assessment, a State may, through a documented and validated standards-setting process, define achievement standards that—

(i) Are aligned with the State’s academic content standards; and

(ii) Reflect professional judgment of the highest learning standards possible for those students

(2)(i) In calculating adequate yearly progress for schools, a State may permit the use of the achievement standards in paragraph (c)(1) of this section, provided that schools in the aggregate do not exceed the State and LEA limitations in paragraph (c)(2)(ii) of this section.

(ii) In calculating adequate yearly progress for States and LEAs, a State may not permit the use of the achievement standards in paragraph (c)(1) of this section for more than 0.5 percent of all students in the grades assessed.

(iii) For purposes of calculating adequate yearly progress for States and LEAs, the State must require that grade-level academic content and achievement standards established under Sec 200.1 apply to any students taking alternate assessments that exceed the number established under paragraph (c)(2)(ii) of this section. (U.S. Department of Education, 2002, p. 51005, emphasis added)

Under the Title 1 accountability system, alternate assessments are an appropriate way to measure the progress of only that very limited portion of students with the most significant cognitive disabilities who will never be able to demonstrate progress on grade level academic achievement standards even if provided the very best possible education. Based on current prevalence rates of students with the most significant cognitive disabilities, proposed Sec. 200.13(c)(2), would set the number of students with disabilities who should be included in accountability measures using alternate standards at not more than 0.5 percent of all students assessed in a State or LEA. (U.S. Department of Education, 2002, p. 50987)

In several instances, the proposed regulations would clarify the statutory provisions or provide flexibility. For example, proposed Sec 200.13(c)(1) permits a State to define achievement standards for students with the most significant cognitive disabilities who take an alternate assessment. (U.S. Department of Education, 2002, p. 50987)

AYP for students with the most significant cognitive disabilities: Section 200.13 of the Notice for Proposed Rulemaking (NPRM) would have allowed the use of alternate achievement standards for students with the most significant cognitive disabilities for determining the AYP of states and LEAs, provided that use did not exceed 0.5 percent of all students. Numerous comments were received on this proposal, with many of them indicating that commenters misunderstood this proposal as limiting the number of students with disabilities who could take an alternate assessment, rather than providing flexibility by allowing the use of alternate achievement standards to determine proficiency for calculating AYP for a limited group of students with disabilities. Because the Secretary believes that the policy may need further clarification, the Secretary will be seeking public comment in a NPRM to be published shortly on a proposed policy regarding the appropriate use of alternate achievement standards in determining AYP for students with the most significant cognitive disabilities.

However, because it is critical to ensure that students with disabilities are not excluded from state accountability systems, the final regulations provide that the same grade level academic content and achievement standards that apply to all public schools and public school students in the State will be applied to alternate assessments. The Secretary anticipates that the separate NPRM will propose an exception to this policy for a small group of students with disabilities. (U.S. Department of Education, 2002, p. 71711)

The 0.5 percent of total population figure was derived based on converging scientific evidence from multiple sources. The Metropolitan Atlanta Developmental Disabilities Surveillance Program (MADDSP) sponsored by the Centers for Disease Control (CDC) has assessed the prevalence of the moderate, severe and profound groups of mental retardation in that community at a prevalence rate of 2.9 per 1,000 for students 3 to 10 years of age, or about one-third of those with mental retardation (Boyle et al., 1996). Thus, the estimate of students is for those with an IQ or less than 50.

A later study by Roeleveld and colleagues provided a similar rate of 3.8 per 1,000 (Roeleveld et al., 1997). Another study indicates that students with severe to profound mental retardation are estimated at somewhat less than 0.13 percent of the total population (Beirne-Smith et al., 2001), while 0.22 percent of the population is considered to have multiple disabilities (IDEA Annual Report to Congress, 2001). The American Association on Mental Retardation (AAMR) defines mental retardation as a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills (Luckasson et al., 2002).

In general, mild mental retardation, which we are excluding from the definition of students with the most significant cognitive disabilities, is considered to be two or more standard deviations below the mean. Thus, for purposes of the Title I program, the term “students with the most significant cognitive disabilities” is defined as covering students with intellectual functioning and adaptive behavior three or more standard deviations below the mean.

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While not specifically comparable, because they include all students with disabilities who participate in State assessment programs through alternate assessments, and not just those students with the most significant cognitive disabilities, State data reported to the Department under the IDEA may be illustrative. Of the 38 States for which sufficient data were provided to calculate a participation rate, in 21 States 5 percent or less of students with disabilities who participated in the State assessment program took an alternate assessment. (Five percent of students with disabilities is roughly equivalent to 0.5 percent of all students.) In 14 other States, between 5 and 10 percent of students with disabilities participated in State assessment programs through an alternate assessment (Biennial Performance Reports: 2000-2001 State Assessment Data, National Center for Educational Outcomes). In these States, students with disabilities comprise approximately 8 to 12 percent of the total student population …

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In sum, even though the 0.5 percent figure was based on the best available data, those data are limited. We are persuaded by the comments of a number of stakeholders who said that 0.5 percent did not reflect their experience; rather a one percent limitation would allow for normal State and LEA variations in the occurrence of students with the most significant cognitive disabilities. (U.S. Department of Education, 2003, pp. 13798-13799)

(c)(1) In calculating adequate yearly progress for schools, a State may use the alternate academic achievement standards in Sec 200.1(d) for students with the most significant cognitive disabilities provided that the percentage of those students at the LEA and at the State levels, separately, does not exceed 1.0 percent of all students in the grades assessed. (U.S. Department of Education, 2003, p. 13801)

(c)(2) If an LEA or State can document that the incidence of students with the most significant cognitive disabilities in the LEA or the State exceeds the limitation in paragraph (c)(1) of this section, and that circumstances exist that could explain the higher percentages such as a school, community, or health program in the area that has drawn families of students with the most significant cognitive disabilities, or such a small overall student population that only a very few students with the most significant cognitive disabilities exceed the 1.0 percent limitation, the LEA may request from the State, or the State may request from the Secretary, respectively, an exception to exceed the 1.0 percent limitation. (U.S. Department of Education, 2003, p. 13801)

Alternate assessments may be needed for students who have a broad variety of disabling conditions; consequently, a State may employ more than one alternate assessment. An alternate assessment may be scored against grade-level standards, or, in the case of students with the most significant cognitive disabilities, against alternate achievement standards. Therefore, all students taking an alternate assessment are included in calculations of AYP as either proficient (and above) or non-proficient. (U.S. Department of Education, 2003, p. 68669)

These regulations clarify that a State is permitted to use alternate achievement standards to evaluate the performance of students with the most significant cognitive disabilities and to give equal weight to proficient and advanced performance based on the alternate standards in calculating school, district, and State AYP, provided that the number of proficient and advanced scores based on the alternate achievement standards does not exceed 1.0 percent of all students in the grades tested at the State or LEA level. The Secretary may approve an exception for a specified period of time for a State, or a State may approve a higher limit for an LEA. (U.S. Department of Education, 2003, p. 68669)

Although the 1.0 percent cap is applied to the number of proficient and advanced scores that may be included in AYP determinations, rather than the number of students taking an assessment against alternate achievement standards, this regulation clarifies the Department’s position that alternate achievement standards are acceptable only for the small number of students with the most significant cognitive disabilities. In consideration of schools that, for example, are small schools or provide special services to students with the most significant cognitive disabilities, the numerical cap of 1.0 percent does not apply at the school level. This does not mean, however, that the use of alternate assessments aligned with alternate standards is unlimited at the school level. For most schools, only a small portion of students with disabilities— those with the most significant cognitive disabilities—should appropriately participate in an assessment based on alternate achievement standards, and all other students with disabilities should be assessed against grade-level standards. In general, the Department expects that no more than 9.0 percent of students with disabilities will participate in an assessment based on alternate achievement standard. (U.S. Department of Education, 2003, p. 68669)

(ii) REQUIREMENTS FOR ALTERNATE ASSESSMENTS.—The guidelines under clause (i) shall provide for alternate assessments that—

(I) are aligned with the State’s challenging academic content standards and challenging student academic achievement standards; and

(II) if the State has adopted alternate academic achievement standards permitted under the regulations promulgated to carry out section 1111(b)(1) of the Elementary and Secondary Education Act of 1965, measure the achievement of children with disabilities against those standards. (Individuals with Disabilities Education Act 2004, Section 612(a)(16)(C)(ii)))

(D) REPORTS.—The State educational agency (or, in the case of a districtwide assessment, the local educational agency) makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

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(ii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(I).

(iii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(II).

(iv) The performance of children with disabilities on regular assessments and on alternate assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information will not reveal personally identifiable information about an individual student), compared with the achievement of all children, including children with disabilities, on those assessments. (Individuals with Disabilities Education Act 2004, Section 612(a)(16)(D)(ii)))

(D) ALTERNATE ASSESSMENTS FOR STUDENTS WITH THE MOST SIGNIFICANT COGNITIVE DISABILITIES.

(i) ALTERNATE ASSESSMENTS ALIGNED WITH ALTERNATE ACADEMIC ACHIEVEMENT STANDARDS-A State may provide for alternate assessments aligned with the challenging State academic standards and alternate academic achievement standards described in paragraph (1)(E) for students with the most significant cognitive disabilities, if the State—

(I) consistent with clause (ii), ensures that, for each subject, the total number of students assessed in such subject using the alternate assessments does not exceed 1.0 percent of the total number of all students in the State who are assessed in such subject. (Every Student Succeeds Act, Section 1111 (b)(2)(D)(i)(I))

(II) ensures that the parents of such students are clearly informed, as part of the process for developing the individualized education program (as defined in section 614(d)(1)(A) of the Individuals with Disabilities Education Act (20 U.S.C.1414(d)(1)(A)))--

(aa) that their child’s academic achievement will be measured based on such alternate standards; and

(bb) how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma. (Every Student Succeeds Act, Section 1111(b)(2)(D)(i))(II)(aa)(bb))

(II) PROHIBITION ON LOCAL CAP.—Nothing in this subparagraph shall be construed to permit the Secretary or a State educational agency to impose on any local educational agency a cap on the percentage of students administered an alternate assessment under this subparagraph, except that a local educational agency exceeding the cap applied to the State under clause (i)(I) shall submit information to the State educational agency justifying the need to exceed such cap. (Every Student Succeeds Act, Section1111(b)(2)(D)(ii))(II))

(III) STATE SUPPORT.—A State shall provide appropriate oversight, as determined by the State, of any local educational agency that is required to submit information to the State under subclause (II). (Every Student Succeeds Act, Section1111(b)(2)(D)(ii))(III))

Consistent with this section, the Department subjected the proposed assessment regulations to a negotiated rulemaking process, through which the Department convene a diverse committee of stakeholders representing Federal, State, and local administrators, tribal leaders, teachers and paraprofessionals, principals and other school leaders, parents, the civil rights community, and the business community that met in three sessions during March and April 2016. The negotiating committee’s protocols provided that it would operate by consensus, which meant unanimous agreement—that is, with no dissent by any voting member. Under the protocols, if the negotiating committee reached final consensus on regulatory language for assessments, the Department would use the consensus language in the proposed regulations. (U.S. Department of Education, 2016, p. 88886)

One commenter suggested adding specific examples to the regulations to provide States greater understanding of what might qualify as a ‘‘significant cognitive disability,’’ and provided several suggested examples such as students who require dependence on others for daily living activities. Two commenters supported adding that a student’s intelligence quotient (IQ) score may not be a factor in determining whether a student should take an AA–AAAS. Finally, a commenter recommended modifying one of the parameters for states’ definitions to emphasize the role of IEP teams and not equivocally state these students require extensive, direct individualized instruction and substantial supports to achieve measurable gains on the challenging state academic grade in which the student is enrolled. Instead, the commenter proposed that IEP teams consider the provision of such instruction and supports.

We appreciate the suggestions that the commenters provided and acknowledge that the negotiators engaged in robust discussion on the topic of how to define ‘‘students with the most significant cognitive disabilities’’ during negotiated rulemaking. We believe that the regulations reflect the consensus of the negotiators and appropriately balance the need for regulatory parameters to ensure that State guidelines incorporate key protections for students with the most significant cognitive disabilities while balancing the ability for states to construct such guidelines in consultation with local stakeholders to devise a state definition of ‘‘students with the most significant cognitive disabilities’’ that will ensure students within a given State are appropriately identified and assessed. We note that should a State apply for a waiver to exceed the 1.0 percent cap on the number of students with the most significant cognitive disabilities who may be assessed with an AA–AAAS, under § 200.6(c)(4)(iv)(A) the State must include a plan and timeline in its waiver request to improve the implementation of those state guidelines, which may include revising its definition of ‘‘students with the most significant cognitive disabilities’’ if necessary so that the State can ensure it will assess no more than 1.0 percent of students with such an AA–AAAS.

With regard to the comments about IEP team discretion, we refer to the discussion above in which we note that, under both the ESEA and the IDEA, decisions of IEP teams must be informed by state guidelines. We agree with the consensus reached by the negotiated rulemaking committee that students with the most significant cognitive disabilities require extensive, direct individualized instruction and substantial supports to achieve measurable gain on the challenging state academic content standards for the grade in which the student is enrolled. However, we believe this is only one factor for a State to consider in the development of its state guidelines and strongly encourage States to work with local stakeholders to develop state definitions that best reflect local needs.

Another commenter expressed general concern with requirements related to state guidelines for IEP teams under § 200.6(d), believing that the proposed regulations unduly limit the discretion of a student’s IEP team with regard to determinations of which assessment is appropriate for a student, especially given that the state may only assess 1.0 percent of students assessed in a given subject with an AA–AAAS. Similarly, another commenter argued that § 200.6(d) violated section 1111(b)(2)(D)(ii)(I)–(II) of the ESEA because the requirements for state guidelines usurped the authority of the IEP team to determine which students with the most significant cognitive disabilities may take an AA–AAAS.

We appreciate the commenters’ concern and agree that under sections 1111(b)(1)(E) and 1111(b)(2)(D)(ii) of the ESEA IEP teams are responsible for determining whether a student has a significant cognitive disability and is most appropriately assessed against alternate academic achievement standards. However, IEP teams do not have unlimited discretion in this regard. Rather, under section 1111(b)(2)(D)(ii) of the ESEA and section 614(d)(1)(A)(i)(VI)(bb) of the IDEA, IEP teams must decide which children with the most significant cognitive disabilities will participate in an AA–AAAS, consistent with state guidelines under section 612(a)(16)(C) of the IDEA, as amended by the ESSA,

One commenter argued that § 200.6(d)(1) violated section 1111(e)(2) of the ESEA by imposing on states a definition of ‘‘students with the most significant cognitive disabilities’ in conflict with a prohibition on the Secretary’s authority for defining terms that are inconsistent with or outside the scope of the law in conflict with a prohibition on the Secretary’s authority for defining terms that are inconsistent with or outside the scope of the law.

We appreciate the commenter’s concern, but note that we are not defining the term ‘‘students with the most significant cognitive disabilities;’’ rather, the regulations require states to define this term and establish criteria for states to adhere to in establishing their own definition.

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Therefore, we decline to adopt any changes in response to this comment. (U.S. Department of Education, 2016, pp. 889815-88916)

(3) A State must—

(iv) Make the information submitted by an LEA under paragraph (c)(3)(ii) of this section publicly available, provided that such information does not reveal personally identifiable information about an individual student. (34 CFR 200.6(c)(3)((ii)(iii)(iv))

(i) Be submitted at least 90 days prior to the start of the State’s testing window for the relevant subject;

(ii) Provide State-level data, from the current or previous school year, to show--

(A) The number and percentage of students in each subgroup of students defined in section 1111(c)(2)(A), (B), and (D) of the Act who took the alternate assessment aligned with alternate academic achievement standards; and

(B) The State has measured the achievement of at least 95 percent of all students and 95 percent of students in the children with disabilities subgroup under section 1111(c)(2)(C) of the Act who are enrolled in grades for which the assessment is required under §200.5(a);

(iii) Include assurances from the State that it has verified that each LEA that the State anticipates will assess more than 1.0 percent of its assessed students in any subject for which assessments are administered under §200.2(a)(1) in that school year using an alternate assessment aligned with alternate academic achievement standards--

(A) Followed each of the State’s guidelines under paragraph (d) of this section, except paragraph (d)(6); and

(B) Will address any disproportionality in the percentage of students in any subgroup under section 1111(c)(2)(A), (B), or (D) of the Act taking an alternate assessment aligned with alternate academic achievement standards;

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

(A) The State will improve the implementation of its guidelines under paragraph (d) of this section, including by reviewing and, if necessary, revising its definition under paragraph (d)(1), so that the State meets the cap in paragraph (c)(2) of this section in each subject for which assessments are administered under §200.2(a)(1) in future school years;

(B) The State will take additional steps to support and provide appropriate oversight to each LEA that the State anticipates will assess more than 1.0 percent of its assessed students in a given subject in a school year using an alternate assessment aligned with alternate academic achievement standards to ensure that only students with the most significant cognitive disabilities take an alternate assessment aligned with alternate academic achievement standards. The State must describe how it will monitor and regularly evaluate each such LEA to ensure that the LEA provides sufficient training such that school staff who participate as members of an IEP team or other placement team understand and implement the guidelines established by the State under paragraph (d) of this section so that all students are appropriately assessed; and

(C) The State will address any disproportionality in the percentage of students taking an alternate assessment aligned with alternate academic achievement standards as identified through the data provided in accordance with paragraph (c)(4)(ii)(A) of this section. (34 CFR 200.6(c)(4)(i)(ii)(iii)(iv)(v))