[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Proposed Rules]
[Pages 44927-44955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16124]



[[Page 44927]]

Vol. 81

Monday,

No. 132

July 11, 2016

Part II





Department of Education





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34 CFR Part 200





Title I--Improving the Academic Achievement of the Disadvantaged--
Academic Assessments; Proposed Rule

Federal Register / Vol. 81 , No. 132 / Monday, July 11, 2016 / 
Proposed Rules

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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AB32
[Docket ID ED-2016-OESE-0053]


Title I--Improving the Academic Achievement of the 
Disadvantaged--Academic Assessments

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing 
programs administered under title I of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA). The proposed regulations 
would implement recent changes to the assessment requirements of title 
I of the ESEA made by the Every Student Succeeds Act (ESSA). Unless 
otherwise specified, references to the ESEA mean the ESEA, as amended 
by the ESSA.

DATES: We must receive your comments on or before September 9, 2016.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``How to use Regulations.gov.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about these proposed regulations, address 
them to Jessica McKinney, U.S. Department of Education, 400 Maryland 
Avenue SW., Room 3W107, Washington, DC 20202.
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available.

FOR FURTHER INFORMATION CONTACT: Jessica McKinney, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3W107, Washington, DC 20202. 
Telephone: (202) 401-1960 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of This Regulatory Action: On December 10, 2015, President 
Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA, 
which provides Federal funds to improve elementary and secondary 
education in the Nation's public schools. The ESSA builds on the ESEA's 
legacy as a civil rights law and seeks to ensure every child, 
regardless of race, socioeconomic status, disability, English 
proficiency, background, or residence, has an equal opportunity to 
obtain a high-quality education. Though the reauthorization made 
significant changes to the ESEA for the first time since the ESEA was 
reauthorized through the No Child Left Behind Act of 2001 (NCLB), 
including significant changes to title I, it made limited changes to 
the assessment provisions of part A of title I. In particular, the ESSA 
added new exceptions to allow a State to approve its local educational 
agencies (LEAs) to administer a locally selected, nationally recognized 
high school academic assessment and, in line with President Obama's 
Testing Action Plan to reduce the burden of unnecessary testing, to 
allow a State to avoid double-testing eighth graders taking advanced 
mathematics coursework. The ESSA also imposed a cap to limit to 1.0 
percent of the total student population the number of students with the 
most significant cognitive disabilities to whom the State may 
administer an alternate assessment aligned with alternate academic 
achievement standards in each assessed subject area. The ESSA included 
special considerations for computer-adaptive assessments. Finally, the 
ESSA amended the provisions of the ESEA related to assessing English 
learners in their native language.
    We propose to amend Sec. Sec.  200.2-200.6 and Sec. Sec.  200.8-
200.9 of title 34 of the Code of Federal Regulations (CFR) in order to 
implement these statutory changes, as well as other key statutory 
provisions, including those related to the assessment of English 
learners. We are proposing these regulations to provide clarity and 
support to State educational agencies (SEAs), LEAs, and schools as they 
implement the ESEA requirements regarding statewide assessment systems, 
and to ensure that key requirements in title I of the ESEA are 
implemented in a manner consistent with the purposes of the law--to 
provide all children significant opportunity to receive a fair, 
equitable, and high-quality education, and to close educational 
achievement gaps. Consistent with section 1601(b) of the ESEA, the 
proposed regulations were subject to a negotiated rulemaking process.
    Summary of the Major Provisions of This Regulatory Action: As 
discussed in greater depth in the Significant Proposed Regulations 
section of this document, the proposed regulations would:
     Update requirements for statewide assessment systems under 
section 1111(b)(2) of the ESEA, including requirements regarding the 
validity, reliability, and accessibility of assessments required under 
title I, part A and provisions regarding computer-adaptive assessments.
     Establish requirements for a State to review and approve 
assessments if the State permits LEAs to administer a locally selected, 
nationally recognized high school academic assessment in each of 
reading/language arts, mathematics, or science consistent with section 
1111(b)(2)(H) of the ESEA.
     Establish requirements under section 1111(b)(2)(C) of the 
ESEA for a State that administers an end-of-course mathematics 
assessment to exempt an eighth-grade student from the mathematics 
assessment typically administered in eighth grade if the student 
instead takes the end-of-course mathematics assessment the State 
administers to high school students.
     Establish requirements for alternate assessments aligned 
with alternate academic achievement standards under section 
1111(b)(2)(D) of the ESEA for students with the most significant 
cognitive disabilities, including the requirement to cap the number of 
students who take such assessments at 1.0 percent of all students 
assessed in each subject area in the State and the requirements a State 
would need to meet if it requests a waiver from the Secretary to exceed 
such cap.
     Establish requirements for native language assessments 
under section 1111(b)(2)(F) of the ESEA, including requirements for a 
State to determine when languages other than English are present to a 
significant extent and to make every effort to provide assessments in 
such languages and update other requirements related to English 
learners.

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     Establish requirements for computer-adaptive assessments 
consistent with 1111(b)(2)(J) of the ESEA, including by clarifying the 
requirement that a State that uses such assessments must report on 
student academic achievement in the same way it would for any other 
annual statewide assessment used to meet the requirements of title I, 
part A of the ESEA.
    Please refer to the Significant Proposed Regulations section of 
this preamble for a detailed discussion of the major provisions 
contained in the proposed regulations.
    Costs and Benefits: The Department believes that the benefits of 
this regulatory action would outweigh any associated costs to States 
and LEAs, which would be financed with Federal education funds. These 
benefits would include the administration of assessments that produce 
valid and reliable information on the achievement of all students, 
including English learners and students with disabilities. States can 
then use this information to effectively measure school performance and 
identify underperforming schools; LEAs and schools can use it to inform 
and improve classroom instruction and student supports; and parents and 
other stakeholders can use it to hold schools accountable for progress, 
ultimately leading to improved academic outcomes and the closing of 
achievement gaps, consistent with the purpose of title I of the ESEA. 
In addition, the regulations provide clarity for how States can avoid 
double testing and reduce time spent on potentially redundant testing. 
Please refer to the Regulatory Impact Analysis section of this document 
for a more detailed discussion of costs and benefits. Consistent with 
Executive Order 12866, the Secretary has determined that this action is 
significant and, thus, is subject to review by the Office of Management 
and Budget under the Executive order.
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations. To ensure that your comments have maximum 
effect in developing the final regulations, we urge you to identify 
clearly the specific section or sections of the proposed regulations 
that each of your comments addresses and to arrange your comments in 
the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed regulations. Please let us know of any further ways we could 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of the Department's programs 
and activities.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments in person in 3W107, 400 Maryland Ave. 
SW., Washington, DC, between 9:00 a.m. and 4:30 p.m. Washington, DC 
time, Monday through Friday of each week except Federal holidays. 
Please contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record: On request we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Background

Public Participation

    On December 22, 2015, the Department published a request for 
information in the Federal Register soliciting advice and 
recommendations from the public on the implementation of title I of the 
ESEA. We received 369 comments. We also held two public meetings with 
stakeholders--one on January 11, 2016, in Washington, DC and one on 
January 19, 2016, in Los Angeles, California--at which we heard from 
over 100 speakers regarding the development of regulations, guidance, 
and technical assistance related to the implementation of title I. In 
addition, Department staff have held more than 100 meetings with 
education stakeholders and leaders across the country to hear about 
areas of interest and concern regarding implementation of the new law.

Negotiated Rulemaking

    Section 1601(b) of the ESEA requires the Secretary, before 
publishing proposed regulations for programs authorized by title I of 
the ESEA, to obtain advice and recommendations from stakeholders 
involved in the implementation of title I programs. ESEA further 
requires that if, after obtaining advice and recommendations from 
individuals and representatives of groups involved in, or affected by, 
the proposed regulations, the Secretary wants to propose regulations 
related to standards and assessments under section 1111(b)(1)-(2) of 
the ESEA, as well as the requirement under section 1118(b) that funds 
under part A be used to supplement, and not supplant, State and local 
funds, the Department must go through the negotiated rulemaking 
process.
    If the negotiated rulemaking committee reaches consensus on the 
proposed regulations that go through the negotiated rulemaking process, 
then the proposed regulations that the Department publishes must 
conform to such consensus agreements unless the Secretary reopens the 
process. Further information on the negotiated rulemaking process may 
be found at: http://www2.ed.gov/policy/elsec/leg/essa/index.html.
    On February 4, 2016, the Department published a notice in the 
Federal Register (81 FR 5969) announcing its intent to establish a 
negotiated rulemaking committee to develop proposed regulations to 
implement the changes made to the ESEA by the ESSA. Specifically, we 
announced our intent to establish a negotiating committee to:
    (1) Prepare proposed regulations that would update existing 
assessment regulations to reflect changes to section 1111(b) of the 
ESEA, including:
    (i) Locally selected, nationally recognized high school academic 
assessments, under section 1111(b)(2)(H);
    (ii) The exception for advanced mathematics assessments in eighth 
grade, under section 1111(b)(2)(C);
    (iii) Inclusion of students with disabilities in academic 
assessments, including alternate assessments aligned with alternate 
academic achievement standards for students with the most significant 
cognitive disabilities, subject to a cap of 1.0 percent of all students 
in a State assessed in a subject;
    (iv) Inclusion of English learners in academic assessments and 
English language proficiency assessments; and
    (v) Computer-adaptive assessments.
    (2) Prepare proposed regulations related to the requirement under 
section 1118(b) of the ESEA that title I, part A funds be used to 
supplement, and not supplant, State and local funds, specifically:
    (i) Regarding the methodology an LEA uses to allocate State and 
local funds to each title I school to ensure compliance with the 
supplement not supplant requirement; and
    (ii) The timeline for compliance.
    The negotiating committee met in three sessions to develop proposed 
regulations: Session 1, March 21-23,

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2016; session 2, April 6-8, 2016; and session 3, April 18-19, 2016. 
This notice of proposed rulemaking (NPRM) proposes regulations on 
assessments that were agreed upon by the negotiating committee.
    The negotiating committee included the following members:
    Tony Evers and Marcus Cheeks, representing State administrators and 
State boards of education.
    Alvin Wilbanks, Derrick Chau, and Thomas Ahart (alternate), 
representing local administrators and local boards of education.
    Aaron Payment and Leslie Harper (alternate), representing tribal 
leadership.
    Lisa Mack and Rita Pin-Ahrens, representing parents and students, 
including historically underserved students.
    Audrey Jackson, Ryan Ruelas, and Mary Cathryn Ricker (alternate), 
representing teachers.
    Lara Evangelista and Aqueelha James, representing principals.
    Eric Parker and Richard Pohlman (alternate), representing other 
school leaders, including charter school leaders.
    Lynn Goss and Regina Goings (alternate), representing 
paraprofessionals.
    Delia Pompa, Ron Hager, Liz King (alternate), and Janel George 
(alternate), representing the civil rights community, including 
representatives of students with disabilities, English learners, and 
other historically underserved students.
    Kerri Briggs, representing the business community.
    Patrick Rooney and Ary Amerikaner (alternate), representing the 
U.S. Department of Education.
    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 either 
assessments under section 1111(b)(2) of the ESEA, or the requirement 
under section 1118(b) that funds under title I, part A be used to 
supplement, and not supplant, or both, the Department would use the 
consensus language in the proposed regulations.
    The negotiating committee reached consensus on all of the proposed 
regulations related to assessments under section 1111(b)(2) of the 
ESEA.

Significant Proposed Regulations

    The Secretary proposes new regulations in 34 CFR part 200 to 
implement programs under title I, part A of the ESEA. We discuss 
substantive issues under the sections of the proposed regulations to 
which they pertain. Generally, we do not address proposed regulatory 
changes that are technical or otherwise minor in effect, including the 
changes to Sec. Sec.  200.4, 200.8, and 200.9, where only technical 
edits are proposed to ensure regulations conform to the ESEA, as 
amended by the ESSA.
Section 200.2 State Responsibilities for Assessment
    Statute: Under section 1111(b)(2) of the ESEA, each State must 
implement a set of high-quality, yearly student academic assessments 
in, at a minimum, reading/language arts, mathematics, and science. 
Those assessments must meet a number of requirements. In particular, 
they must--
     Be the same academic assessments used to measure the 
academic achievement of all public elementary and secondary school 
students in the State;
     Be aligned with the challenging State academic standards 
and provide coherent and timely information about student attainment of 
those standards at a student's grade level;
     Be used for purposes for which the assessments are valid 
and reliable;
     Be consistent with relevant, nationally recognized 
professional and technical testing standards;
     Objectively measure academic achievement, knowledge, and 
skills without evaluating personal or family beliefs and attitudes;
     Be of adequate technical quality for each purpose required 
under the ESEA;
     Involve multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills and understanding, which may include measures of student 
academic growth and may be partially delivered in the form of 
portfolios, projects, or extended performance tasks;
     Be administered to and include all public elementary and 
secondary school students in the State, including English learners and 
students with disabilities;
     At a State's discretion, be administered through a single 
summative assessment or through multiple statewide interim assessments 
during the course of the academic year that result in a single 
summative score that provides valid, reliable, and transparent 
information on student achievement and, at the State's discretion, 
growth;
     Produce individual student interpretive, descriptive, and 
diagnostic reports regarding achievement on the assessments that allow 
parents, teachers, principals, and other school leaders to understand 
and address the specific academic needs of students;
     In keeping with the requirements for State report cards in 
section 1111(h), enable results to be disaggregated within each State, 
LEA, and school by each major racial and ethnic group; economically 
disadvantaged students compared to students who are not economically 
disadvantaged; children with disabilities compared to children without 
disabilities; English proficiency status; gender; migrant status; 
homeless children and youth; status as a child in foster care; and 
status as a student with a parent who is a member of the Armed Forces 
on active duty;
     Enable itemized score analyses to be produced and reported 
to LEAs and schools;
     Be developed, to the extent practicable, using the 
principles of universal design for learning; and
     At a State's discretion, be developed and administered as 
computer-adaptive assessments.
    Current Regulations: Current Sec.  200.2 governing State assessment 
systems reflects provisions of section 1111(b)(3) of the ESEA as in 
effect prior to the ESSA (that is, under the NCLB). In large part, 
those provisions remain the same in section 1111(b)(2)(B) of the ESEA, 
as amended by the ESSA. Accordingly, proposed Sec.  200.2 would retain 
the current regulations except where amendments are needed to reflect 
statutory changes made by the ESSA.
    Proposed Regulations: The proposed regulations would update the 
current regulations to incorporate new statutory provisions and clarify 
the basic responsibilities a State has in developing and administering 
academic assessments. Where updates are not needed, previously existing 
regulatory text would remain, such as in Sec.  200.2(a), which 
identifies the required subject areas in which a State must administer 
yearly student academic assessments.
    The proposed regulations in Sec.  200.2(b)(1)(i) would clarify 
exceptions to the statutory requirement that assessments be the same 
assessments used for all students to account for new statutory 
provisions on: (1) Locally selected, nationally recognized high school 
academic assessments; (2) an exception for eighth-grade students taking 
advanced mathematics courses; (3) alternate assessments aligned with 
alternate academic achievement standards for students with the most 
significant cognitive disabilities; and (4) States that receive 
demonstration authority for an innovative assessment system under 
section 1204 of the ESEA.

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Proposed Sec.  200.2(b)(2)(ii) would also incorporate a new statutory 
requirement that assessments be developed, to the extent practicable, 
using the principles of ``universal design for learning,'' including 
the definition of this term consistent with the statutory instruction 
to use the definition provided in the Higher Education Act of 1965, as 
amended. Further, the proposed regulations in Sec.  200.2(b)(3) would 
incorporate key relevant portions of current Sec.  200.3, such as the 
requirement that assessments measure the depth and breadth of the 
challenging State academic content standards.
    Proposed Sec.  200.2(b)(3)(ii)(B)(1) would also include a new 
statutory clarification that general assessments must be aligned with 
challenging State academic standards that are aligned with entrance 
requirements for credit-bearing coursework in the system of public 
higher education in the State and relevant career and technical 
education standards. Consistent with the statute, proposed Sec.  
200.2(b)(3)(ii)(B)(2) would require alternate assessments aligned with 
alternate academic achievement standards to be developed in a way that 
reflects professional judgment as to the highest possible standards 
achievable by students with the most significant cognitive disabilities 
to ensure that a student who meets the alternate academic achievement 
standards is on track to pursue postsecondary education or competitive, 
integrated employment, consistent with the purposes of the 
Rehabilitation Act of 1973, as amended by the Workforce Innovation and 
Opportunity Act.
    The proposed regulations in Sec.  200.2(b)(4)(i) would require 
fairness, in addition to validity and reliability, as a key technical 
expectation. Additionally, consistent with the updated statute, 
proposed Sec.  200.2(b)(5)(ii) would require that a State make 
technical information available to the public, including on the State's 
Web site.
    The proposed regulations in Sec. Sec.  200.2(b)(7), (10) would 
specify that a State may, at its discretion, measure student growth; 
use portfolios, projects, or extended performance tasks as part of its 
assessment system; administer multiple interim or modular assessments 
through the course of the school year; or offer a single summative 
assessment statewide.
    As under current regulations, the proposed regulations in Sec.  
200.2(b)(11) would require that an assessment system be able to 
disaggregate information by all subgroups of students that are required 
to be reported under other provisions of the ESEA. In addition to the 
subgroups required under the ESEA, as amended by NCLB, the proposed 
regulations in Sec.  200.2(b)(11)(vii)-(ix) would require that a 
State's assessment system be able to disaggregate achievement data for 
subgroups that the ESEA, as amended by the ESSA, requires a State to 
include on its annual State report card under section 1111(h) of the 
ESEA: Homeless children and youth as defined by the McKinney-Vento 
Homeless Assistance Act; status as a child in foster care as defined in 
regulations of the U.S. Department of Health and Human Services (HHS); 
and status as a student with a parent who is a member of the Armed 
Forces on active duty. Further, the proposed regulations would require 
State assessment systems to be able to disaggregate information for 
students with a parent serving in the National Guard, even though such 
information is not required to be reported under section 1111(h).
    Proposed Sec.  200.2(c) addresses new statutory language regarding 
computer-adaptive assessments. Specifically, proposed Sec.  200.2(c)(1) 
would clarify that, although such assessments may include items above 
or below a student's grade level, the assessment must result in a 
proficiency determination for the grade in which the student is 
enrolled.
    The proposed regulations would further specify in Sec.  200.2(d) 
which assessments are subject to assessment peer review under section 
1111(a)(4) of the ESEA. Finally, proposed Sec.  200.2(e) would require 
that information provided to parents under section 1111(b)(2) of the 
ESEA be conveyed in a manner parents can understand, including by 
providing written translations for parents who are not proficient in 
English wherever possible; by providing oral translations if written 
translations are not available; and by providing such information in a 
format accessible to a parent who is an individual with a disability, 
consistent with title II of the Americans with Disabilities Act (ADA).
    Reasons: Except as explained below, the proposed regulations in 
Sec.  200.2 are included to align the regulations with the updated 
statute and with other applicable laws and regulations.
    Section 1111(b)(1)(E)(i)(V) of the ESEA requires that alternate 
academic achievement standards for students with the most significant 
cognitive disabilities be aligned to ensure that a student who meets 
those standards is on track to pursue postsecondary education or 
employment, consistent with the specific purposes of Public Law 93-112, 
as in effect on July 22, 2014. Public Law 93-112, as in effect on July 
22, 2014, is the Rehabilitation Act of 1973, as amended by the 
Workforce Innovation and Opportunity Act, which, at the request of the 
negotiators, proposed Sec.  200.2(b)(3)(2)(B)(2) would reference 
directly for clarity. To make the reference to the Rehabilitation Act 
more relevant to educational assessment, the proposed regulations would 
clarify that alternate assessments aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities must be aligned to ensure that a student who meets those 
standards is on track to pursue postsecondary education or competitive, 
integrated employment. The negotiating committee discussed the 
importance of including competitive, integrated employment rather than 
any type of employment to prevent former practices including the 
tracking of students with the most significant cognitive disabilities 
into sheltered workshop employment settings that provide less than 
minimum wage, and to emphasize that standards for such students must 
aim for either postsecondary education or competitive, integrated 
employment alongside individuals without disabilities.
    In 2014, the American Educational Research Association, the 
American Psychological Association, and the National Council on 
Measurement in Education released a revised and updated version of 
their professional and technical standards for educational and 
psychological testing. The updated professional and technical standards 
emphasize fairness, in addition to validity and reliability. To reflect 
these standards, and in response to extensive discussion by the 
negotiating committee in support of explicit references to fairness for 
all students, we propose to add fairness as a key element in Sec.  
200.2(b)(4)(i).
    The ESEA also delineates the State option to measure student growth 
in section 1111(b)(2)(B)(vi). While the statute and regulations 
continue to require reporting about student achievement relevant to 
State expectations for the grade in which a student is enrolled, the 
proposed regulations include updates in Sec.  200.2(b)(7)(i) because a 
State may also provide additional information to better articulate 
student knowledge and skill at all achievement levels. The negotiators 
agreed that the statute requires a State to report on grade-level 
proficiency regardless of whether a State chooses to include student 
growth measures and regardless of whether the assessment is paper-based 
or computer-administered.

[[Page 44932]]

    The requirement to ensure that a State's assessment system can 
disaggregate data on homeless children or youths, children in foster 
care, and children with parents in the Armed Forces on active duty 
would be added to Sec.  200.2(b)(11)(vii)-(ix) because section 
1111(h)(1)(C)(ii) requires that a State report achievement results 
separately on such students on its State report card. In addition, the 
proposed regulations would include children with a parent who serves on 
full-time National Guard duty. The negotiators supported including 
disaggregation of data for children with a parent who serves on full-
time National Guard duty because they believed the education of those 
children could be disrupted by their parent's service to the same 
extent as children with a parent on active duty in the Armed Forces. 
Under this proposed requirement, the assessment system would be 
required to be able to disaggregate data on these children, but it 
would not create a new Federal reporting requirement; a State, however, 
at its discretion, would have the ability to report the achievement of 
these children separately. The proposed regulations would also 
incorporate existing statutory or regulatory definitions of subgroups 
of students on which a State is required to disaggregate achievement 
data, including by incorporating the definition of ``foster care'' from 
an HHS Social Security Act regulation for consistency with the agency 
charged with administering foster care provisions.
    Section 1111(b)(2)(J) of the ESEA gives a State discretion to use 
computer-adaptive tests as part of its statewide assessment system. 
While computer-adaptive tests offer potential advantages for targeting 
student achievement levels using fewer assessment items and may thus 
reduce time spent on testing, proposed Sec.  200.2(c) would clarify 
that, no matter what, such tests must produce results regarding student 
achievement for the grade in which the student is enrolled. This is 
essential to ensure that all students, even students for whom a 
computer-adaptive assessment provides important information about 
achievement below grade level, receive high-quality instruction at the 
grade in which they are enrolled and are held to the same grade-level 
standards. The negotiators discussed this issue as it relates to 
measuring student growth and agreed that the opportunity to use 
assessment items above or below a student's grade level to increase the 
precision of growth measurements must not interfere with obtaining 
accurate information about student performance compared to grade-level 
expectations that students, parents, educators, policymakers, 
stakeholders, and the public need in order to make decisions to better 
support students.
    Proposed Sec.  200.2(d) would identify the assessments that are 
subject to assessment peer review under section 1111(a)(4) of the ESEA, 
consistent with the recommendation of committee members for greater 
clarity on this issue. Specifically, the following assessments or 
documentation are subject to assessment peer review: A State's general 
assessments in each required grade level in reading/language arts, 
mathematics, and science; any locally selected, nationally recognized 
high school academic assessment a State wishes to approve for an LEA to 
use consistent with Sec.  200.3; a State's technical review of local 
assessments if an SEA demonstrates that no State official, agency, or 
entity has the authority under State law to adopt academic content 
standards, student academic achievement standards, and academic 
assessments, consistent with Sec.  200.4; any assessment administered 
in high school to the students for whom the exemption from the eighth-
grade grade mathematics assessment under Sec.  200.5(b) applies (that 
is, the more advanced mathematics assessment such a student takes in 
high school since in eighth grade the student took the assessment 
typically administered to high school students in the State); alternate 
assessments aligned to alternate academic achievement standards 
consistent with Sec.  200.6(c); assessments administered in a student's 
native language consistent with Sec.  200.6(f)(1); English language 
proficiency assessments consistent with Sec.  200.6(f)(3); and 
assessments in a Native American language consistent with Sec.  
200.6(g). A State's academic assessment system has long been subject to 
peer review, since it is a part of the State's title I plan, and 
section 1111(a)(4) requires peer review of title I State plans. 
Proposed Sec.  200.2(d) would maintain the existing requirements while, 
as agreed to by negotiators, improving clarity regarding which 
assessments would be subject to peer review. In addition, now that 
English language proficiency is required to be used for school 
accountability purposes under section 1111(c) of the ESEA, the 
negotiating committee agreed that it was important to include English 
language proficiency assessments in peer review to ensure high 
technical quality of all assessments used for accountability purposes.
    Proposed Sec.  200.2(e) would articulate the manner in which 
parents must receive information under section 1111(b)(2) of the ESEA, 
to ensure that all parents, including parents who are English learners 
or individuals with disabilities, would be able to access and 
understand the information provided to them about their children's 
performance on required assessments. Proposed Sec.  200.2(e)(1) would 
repeat relevant statutory language. Proposed Sec.  200.2(e)(2) would 
restate the longstanding Department interpretation about how the ESEA 
statutory language ``to the extent practicable'' applies to written and 
oral translations, an approach consistent with the Department's 
interpretation of Title VI of the Civil Rights Act of 1964. Proposed 
Sec.  200.2(e)(3) would also reiterate existing obligations to parents 
with disabilities under the ADA. Some negotiators initially proposed 
including ``guardians'' whenever the proposed regulation refers to 
``parents''; however, the negotiating committee ultimately agreed that 
was unnecessary as the ESEA defines ``parent'' in section 8101(38) to 
include ``a legal guardian or other person standing in loco parentis 
(such as a grandparent or stepparent with whom the child lives, or a 
person who is legally responsible for the child's welfare).'' Parents 
and guardians with disabilities or limited English proficiency have the 
right to request notification in accessible formats. We also encourage 
States and LEAs to proactively make all information and notices they 
provide to parents and families accessible, helping to ensure that 
parents are not routinely requesting States to make this information 
available in alternative formats. For example, one way to ensure 
accessibility would be to provide orally interpreted and translated 
notifications and to follow the requirements of Section 508 of the 
Rehabilitation Act.
Section 200.3 Locally Selected, Nationally Recognized High School 
Academic Assessments
    Statute: Under section 1111(b)(2)(H) of the ESEA, a State may 
permit an LEA to administer a locally selected, nationally recognized 
high school academic assessment in lieu of the high school academic 
assessment the State typically administers in reading/language arts, 
mathematics, or science. If a State chooses to offer this option, it 
must establish technical criteria to determine if the locally selected, 
nationally recognized high school academic assessment an LEA wishes to 
use meets specific requirements. More specifically, the assessment 
must:
     Be aligned with the State's academic content standards, 
address the

[[Page 44933]]

depth and breadth of those standards, and be equivalent in its content 
coverage, difficulty, and quality to the statewide assessment;
     Provide comparable, valid, and reliable data on academic 
achievement compared to the respective statewide assessment for all 
students and each subgroup of students, expressed in terms consistent 
with the State's academic achievement standards among all LEAs in the 
State;
     Meet the requirements in section 1111(b)(2)(B) of the ESEA 
regarding statewide assessments, except the requirements in section 
1111(b)(2)(B)(i) that statewide assessments be the same academic 
assessments used to measure the achievement of all students and be 
administered to all students in the State; and
     Provide unbiased, rational, and consistent differentiation 
between schools within the State for accountability purposes.
    A State must review an LEA's locally selected, nationally 
recognized high school academic assessment to determine if it meets or 
exceeds the criteria the State has established, submit evidence 
supporting this determination to the Department for peer review under 
section 1111(a)(4) of the ESEA, and, following successful completion of 
peer review, approve the assessment. An LEA that wishes to select a 
nationally recognized high school academic assessment must notify the 
parents of high school students in the LEA of its request for approval 
to use such assessment and, upon approval and in each subsequent year, 
notify them that the LEA will be using a different assessment from the 
statewide assessment.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  200.3 would clarify the 
locally selected, nationally recognized high school academic assessment 
option under section 1111(b)(2)(H) of the ESEA in several respects. 
First, proposed Sec.  200.3(a)(1) would make clear that a State has 
discretion over whether to permit its LEAs to select and administer a 
nationally recognized high school academic assessment in lieu of the 
statewide assessment. Second, under proposed Sec.  200.3(a)(2), an LEA 
would be required to administer the same locally selected, nationally 
recognized academic assessment to all high school students in the LEA, 
except for students with the most significant cognitive disabilities 
who are assessed on an alternate assessment aligned with alternate 
academic achievement standards. Third, proposed Sec.  200.3(b)(2)(i) 
would require a State to ensure that the use of appropriate 
accommodations, as determined by the appropriate school-based team for 
a given student consistent with State policy, does not deny a student 
with a disability or an English learner the opportunity to participate 
in the assessment, or any of the benefits from participation in the 
assessment that are afforded to students without disabilities or 
students who are not English learners. Fourth, proposed Sec.  
200.3(c)(2)(i) would require an LEA that is approved to implement a 
nationally recognized high school academic assessment to update its 
local plan under section 1112 or section 8305 of the ESEA, including by 
describing how the request was developed consistent with all 
requirements for consultation under section 1112 and tribal 
consultation under section 8538 of the ESEA. Fifth, to ensure smooth 
implementation with respect to charter schools, proposed Sec.  
200.3(c)(1)(ii) would require an LEA that includes any public charter 
schools and wishes to implement a nationally recognized high school 
academic assessment to provide an opportunity for meaningful 
consultation to all public charter schools whose students would be 
included in such assessment. If a public charter school is an LEA under 
State law, proposed Sec.  200.3(c)(2)(ii) would require that public 
charter school to provide an assurance that the use of the assessment 
is consistent with State charter school law and that the LEA consulted 
with its authorized public chartering agency. Finally, proposed Sec.  
200.3(d) would define ``nationally recognized high school academic 
assessment'' to mean an assessment of high school students' knowledge 
and skills that is administered in multiple States and is recognized by 
institutions of higher education in those or other States for the 
purposes of entrance or placement into credit-bearing courses in 
postsecondary education or training programs.
    Reasons: The option for an LEA to select, and for a State to 
approve, the use of a nationally recognized high school academic 
assessment in place of the statewide academic assessment for purposes 
of accountability is a new authority provided in the ESEA. Implementing 
this new authority will require careful coordination across local, 
State, and Federal agencies and attention to technical requirements, 
including accessibility and accommodations for students with 
disabilities and English learners. Accordingly, proposed Sec.  200.3 
would specify the requirements and responsibilities related to this new 
authority.
    Such assessments would be used for purposes of the statewide 
accountability system under section 1111(c) of the ESEA, including the 
requirements that a State must meet regarding annual meaningful 
differentiation and identification of low-performing schools for 
intervention. During negotiations, the negotiating committee agreed 
that proposed Sec.  200.3(a) would clarify that a State has discretion 
to decide whether to offer its LEAs the opportunity to request to use a 
locally selected, nationally recognized high school academic 
assessment. In addition, in order to maintain meaningful within-
district comparisons of student achievement, an LEA would be required 
to select and use a single nationally recognized academic assessment 
for all high school students in the LEA, except those students with the 
most significant cognitive disabilities who take an alternate 
assessment aligned with alternate academic achievement standards. 
Several negotiators recommended greater flexibility at the local level 
regarding the number of nationally recognized high school academic 
assessments that might be administered, including by proposing that an 
LEA have authority to offer more than one locally selected, nationally 
recognized high school academic assessment, or that an LEA have 
authority to phase in the use of such assessments over time. 
Ultimately, the negotiators reached consensus on the value of 
preserving within-district direct comparability of results, 
particularly for reporting on LEA report cards, for transparency, and 
for school accountability determinations.
    The proposed regulations in Sec.  200.3(b) would incorporate 
statutory requirements for State approval, including the State-
established technical criteria. These State-level quality criteria are 
essential to maintaining a rational and coherent statewide assessment 
system that fairly measures student achievement for the purpose of 
reporting on school performance and identifying those schools in need 
of the greatest support. In addition, proposed Sec.  200.3(b)(2)(i) 
would clarify that any test an LEA uses for accountability must offer 
all State-determined appropriate accommodations, including by ensuring 
that the tests--and any benefits to students from taking such tests, 
such as valid college-reportable scores--are available to all students, 
including students with disabilities and English learners. Committee 
members agreed on the importance of spelling out State

[[Page 44934]]

responsibilities, particularly the requirement that a student who 
receives appropriate accommodations, as determined by the student's IEP 
team, consistent with State accommodation guidelines for accommodations 
that do not invalidate test scores, receive all benefits that taking 
such tests for the purpose of meeting the title I assessment 
requirements offer other students.
    Proposed Sec.  200.3(b)(2)(ii) would clarify the requirement that a 
State submit, for peer review and approval by the Department, any 
locally selected, nationally recognized high school academic assessment 
an LEA wishes to administer. As the proposed regulations would simply 
incorporate and restate the statutory process for ensuring a locally 
selected, nationally recognized assessment is approved through peer 
review, the negotiating committee approved it without extensive debate.
    The proposed regulations in Sec.  200.3(c) would offer additional 
detail regarding the process by which an LEA would apply to a State to 
use a locally selected, nationally recognized high school academic 
assessment. Proposed Sec.  200.3(c)(1)(i) would specify that an LEA 
must inform parents and solicit their input prior to requesting 
approval from the State so that such input may inform the LEA's request 
and the State's consideration of the LEA application. Proposed Sec.  
200.3(c)(1)(ii) would clarify how public charter schools are included 
in an LEA's consideration of whether to submit such a request, and 
proposed Sec.  200.3(c)(2)(ii) would explain how a public charter 
school that is an LEA must consult its authorized public chartering 
agency. A negotiator proposed these provisions to ensure that the 
assessments applicable to charter schools, whether those schools are 
part of an LEA or are an LEA in their own right, are consistent with 
existing chartering agreements and State charter school law. 
Additionally, proposed Sec.  200.3(c)(2)(i) would address the need to 
update an LEA's title I plan to include, among other things, a 
description of how the request was developed consistent with the 
consultation requirements under sections 1112 and 8538 of the ESEA when 
making a request. To effectively implement such a change in 
assessments, it will be critical to consider, as a community, all of 
the implications of the use of an assessment other than the statewide 
academic assessment.
    Proposed Sec.  200.3(c)(4)(i) would require an LEA to indicate 
annually to the State whether it will continue to use a previously 
approved, locally selected, nationally recognized high school academic 
assessment. This requirement is needed to ensure that a State is able 
to administer assessments to all students, including in the event that 
an LEA elects to again use the statewide academic assessment after 
administering a locally selected, nationally recognized high school 
academic assessment.
    Proposed Sec.  200.3(d) would define the term ``nationally 
recognized high school academic assessment.'' The committee discussed 
this definition extensively, and numerous versions were considered, 
most of which were aimed at broadening the definition to accommodate a 
wider range of assessments. Although there are many assessments in use 
in multiple States, the statute specifies that assessments eligible for 
selection by an LEA in lieu of the statewide assessment must be 
``nationally recognized.'' The negotiators discussed and ultimately 
agreed that a reasonable indicator of whether an assessment is 
nationally recognized is whether multiple institutions of higher 
education or postsecondary training programs consider the results of 
such assessments for entrance or placement into credit-bearing courses. 
In addition, we believe that such use of the assessment further 
indicates that the assessment is high-quality and provides important 
information about student readiness for postsecondary education and 
training.
Section 200.5 Assessment Administration

Frequency

    Statute: Under section 1111(b)(2)(B)(v) of the ESEA, a State must 
administer assessments annually as follows: For reading/language arts 
and mathematics assessments, the State must administer them in each of 
grades 3 through 8 and at least once in grades 9 through 12; for 
science assessments, the State must administer them not less than one 
time in grades 3 through 5, grades 6 through 9, and grades 10 through 
12.
    Current Regulations: Current Sec.  200.5 describes the frequency 
with which reading/language arts, mathematics, and science assessments 
must be administered under the ESEA, as amended by NCLB.
    Proposed Regulations: Proposed Sec.  200.5(a) would describe the 
frequency with which reading/language arts, mathematics, and science 
assessments must be administered under section 1111(b)(2)(B)(v). It 
would also make clear that a State must administer its assessments 
annually in the specified grade spans.
    Reasons: Proposed Sec.  200.5(a) would reflect and clarify 
statutory changes in the frequency for administering State assessments, 
particularly in high school where reading/language arts and mathematics 
assessments may now be administered once in grades 9-12, instead of 
grades 10-12. It also would make clear that the required assessments 
must be administered annually according to the frequency prescribed in 
the statute. The negotiating committee briefly discussed these changes 
and agreed to these updates.

Middle School Mathematics Exception

    Statute: Under section 1111(b)(2)(C) of the ESEA, a State may 
exempt an eighth-grade student from the mathematics assessment the 
State typically administers in eighth grade if the student instead 
takes an end-of-course test the State typically administers in high 
school. The student's performance on the high school assessment must be 
used in the year in which the student takes the assessment for purposes 
of measuring academic achievement and calculating participation rate 
under section 1111(c)(4). In high school, the student must take a 
mathematics assessment that is an end-of-course assessment or another 
assessment that is more advanced than the assessment the student took 
in eighth grade, and the student's results must be used to measure 
academic achievement and calculate participation rate for his or her 
high school.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  200.5(b) would clarify the 
eighth-grade mathematics exception in section 1111(b)(2)(C) in several 
respects. First, proposed Sec.  200.5(b) would make clear that only a 
State that administers an end-of-course mathematics assessment to meet 
the high school assessment requirement may offer the exception to 
eighth-grade students, consistent with section 1111(b)(2)(C)(i). The 
exception would not apply in a State that administers a general 
mathematics assessment in, for example, eleventh grade. Second, 
proposed Sec.  200.5(b)(3)(i) would permit a student who received the 
exception in eighth grade to take in high school either a State-
administered end-of-course mathematics assessment or a nationally 
recognized high school academic assessment in mathematics, as defined 
in proposed Sec.  200.3(d), that is more advanced than the assessment 
the student took in eighth grade. The more advanced high school 
assessment would need to be submitted for peer review under section 
1111(a)(4) of the ESEA, as

[[Page 44935]]

required under proposed Sec.  200.2(d). Finally, proposed Sec.  
200.5(b)(4) would require the State to describe in its title I State 
plan, with regard to this exception, its strategies to provide all 
students in the State the opportunity to be prepared for and to take 
advanced mathematics coursework in middle school.
    Reasons: The negotiating committee discussed the eighth-grade 
mathematics exception at length, acknowledging early in the process 
that the statute limits this exception to those States that administer 
high school end-of-course tests. The negotiators supported providing 
advanced mathematics coursework in middle school and easing the burden 
of testing by relieving a student who takes a high school-level 
mathematics course in eighth grade from also having to take the State's 
general eighth-grade mathematics assessment, but also proposed several 
safeguards for inclusion in proposed Sec.  200.5(b).
    In requiring the more advanced end-of-course high school 
mathematics assessment either to be State-administered or nationally 
recognized, as defined in proposed Sec.  200.3, proposed Sec.  
200.5(b)(3)(i) would clarify that the assessment may not be one 
developed by a teacher to measure knowledge of his or her specific 
course content.
    Also, proposed Sec.  200.5(b)(4) would require the State to 
describe in its title I State plan its strategies to provide all 
students in the State the opportunity to be prepared for and to take 
advanced mathematics coursework in middle school. This provision is 
meant to give all students, regardless of the school they attend, a 
fair and equitable opportunity to access advanced mathematics in middle 
school. The negotiating committee discussed this provision extensively, 
with some members objecting to it as unnecessarily burdensome and 
others supporting even greater efforts to ensure equal access to 
advanced mathematics in middle school. Ultimately, the negotiators 
agreed that the proposed language was a reasonable compromise, 
particularly since it would apply only to the limited number of States 
that choose to implement the eighth-grade mathematics exception. Such 
States could address the provision, for example, by providing 
accelerated preparation in elementary school to take advanced 
mathematics coursework in eighth grade or through distance learning for 
students whose middle school does not offer an advanced mathematics 
course.
Section 200.6 Inclusion of All Students

Students With Disabilities in General

    Statute: Under section 1111(b)(2)(B)(i) and (b)(2)(B)(vii)(I)-(II) 
of the ESEA, a State must include in its assessment system all public 
elementary and secondary school students, including students with 
disabilities. The statute clarifies that those students include 
children with disabilities under the Individuals with Disabilities 
Education Act (IDEA) and students with a disability who are provided 
accommodations under other acts. Section 1111(b)(2)(D) authorizes a 
State to adopt alternate assessments aligned with the State's alternate 
academic achievement standards for students with the most significant 
cognitive disabilities. Otherwise, under section 1111(b)(2)(B)(ii), 
students with disabilities, like students who do not have a disability, 
must be assessed based on academic achievement standards for the grade 
in which a student is enrolled. All students with disabilities, 
including those with the most significant cognitive disabilities, as 
established under section 1111(b)(1)(E)(i)(I), must be administered an 
assessment aligned with the State's challenging academic content 
standards for the grade in which they are enrolled.
    Current Regulations: Current Sec.  200.6(a) requires a State to 
provide for the participation of all students, including students with 
disabilities, as defined under section 602(3) of the IDEA, and for each 
student covered by section 504 of the Rehabilitation Act of 1973 
(section 504), in a State's academic assessment system.
    Proposed Regulations: The proposed regulations would update this 
section to reflect the new statutory inclusion of ``other acts'' as it 
relates to students with disabilities. First, the proposed regulations 
would require the inclusion of all students, including students with 
disabilities, in the State assessments. Proposed Sec.  200.6(a)(1) 
would delineate students who are identified as children with 
disabilities under section 602(3) of the IDEA; the subset of such 
students who are students with the most significant cognitive 
disabilities; and students with disabilities covered under other acts, 
including section 504 and title II of the ADA. Proposed Sec.  
200.6(a)(2)(i) would specify that all students with disabilities, 
except those students with the most significant cognitive disabilities, 
must be assessed using the general academic assessment aligned with the 
challenging State academic standards for the grade in which the student 
is enrolled. Further, under proposed Sec.  200.6(a)(2)(ii), students 
with the most significant cognitive disabilities may be assessed using 
either the general assessment or an alternate assessment aligned with 
the challenging State academic content standards for the grade in which 
the student is enrolled and with alternate academic achievement 
standards, if the State has adopted such alternate academic achievement 
standards.
    Reasons: The proposed regulations would reinforce the State's 
statutory obligation to include all students in statewide academic 
assessments used for accountability purposes under the ESEA. The 
negotiating committee discussed this section at length, rejecting 
proposals to either define ``students with disabilities'' to include 
students in each of the categories listed in proposed Sec.  
200.6(a)(1)(i)-(iii) or to refer to students eligible for 
accommodations. Ultimately, to improve clarity and avoid creating any 
confusion in the field about student access to accommodations, the 
negotiators agreed that the proposed regulations in Sec.  200.6(a)(1) 
would identify groups of students with disabilities--that is, those 
defined under the IDEA; those who may need alternate assessments 
aligned with alternate academic achievement standards; and those who 
may need appropriate accommodations outside of the IDEA. The proposed 
regulations would also clarify that English learners with disabilities 
must receive support and appropriate accommodations relative both to 
their disabilities and to their status as English learners.

Appropriate Accommodations and Definitions Related to Students With 
Disabilities

    Statute: Section 1111(b)(2)(B)(vii) of the ESEA requires that a 
State's assessment system provide for the participation of all students 
and requires appropriate accommodations, such as interoperability with, 
and ability to use, assistive technology, for children with 
disabilities, as defined in section 602(3) of the IDEA, including 
children with the most significant cognitive disabilities, and students 
with a disability who are provided accommodations under other acts.
    Current Regulations: Current Sec.  200.6(a)(1) requires a State's 
academic assessment system to provide appropriate accommodations, as 
determined by a student's individualized education program (IEP) team 
or placement team, that are necessary for a student with a disability, 
as defined under section 602(3) of the IDEA, or for a student covered 
under

[[Page 44936]]

section 504, to take the State's assessment. For most students with 
disabilities under IDEA and students covered under section 504, 
appropriate accommodations are those necessary to measure the academic 
achievement of a student relative to the State's academic content and 
academic achievement standards for the grade in which the student is 
enrolled. For students with the most significant cognitive disabilities 
who take an alternate assessment aligned with alternate academic 
achievement standards, appropriate accommodations are those necessary 
to measure a student's academic achievement based on those alternate 
academic achievement standards aligned with content standards for the 
grade in which the student is enrolled.
    Proposed Regulations: Proposed Sec.  200.6(b)(1) would require that 
a State's academic assessment system provide appropriate accommodations 
for each student with a disability. Proposed Sec.  200.6(b)(1) would 
include, as an example of such accommodations, interoperability with, 
and the ability to use, ``assistive technology devices,'' as that term 
would be defined in proposed Sec.  200.6(e). The proposed regulations 
would clarify that use of assistive technology devices must be 
consistent with nationally recognized accessibility standards. Although 
assistive technology devices are one kind of accommodation, other 
accommodations are also available and may be appropriate. The 
determination of which accommodations would be appropriate for a 
student must be made individually by a student's IEP team, placement 
team, or other team the LEA designates to make these decisions. 
Proposed Sec.  200.6(b)(1) would identify the teams responsible for 
making accommodations determinations for the students with disabilities 
identified in proposed Sec.  200.6(a). Proposed Sec.  200.6(b)(2)(i) 
would require a State to disseminate information about the use of 
appropriate accommodations. Further, proposed Sec.  200.6(b)(2)(ii) 
would require that a State ensure that educators, including 
paraprofessionals, specialized instructional support personnel, and 
other appropriate staff, receive training to administer assessments, 
and know how to make use of appropriate accommodations for all students 
with disabilities.
    Proposed Sec.  200.6(b)(3) would specify that a State must ensure 
that a student with a disability who uses appropriate accommodations on 
the assessments a State or LEA uses to meet the requirements of title 
I, part A of the ESEA has the same opportunity to participate in, and 
is not denied any of the benefits of, the assessment as compared with a 
student who does not have a disability, including such benefits as 
valid college-reportable scores.
    Reasons: The proposed regulations would incorporate statutory 
changes and provide details with regard to appropriate accommodations 
for students with disabilities. Because the statute provides the 
example of interoperability with, and ability to use, assistive 
technology devices on State assessments, the Department proposed to the 
committee to incorporate this language in proposed Sec.  200.6(b)(1). 
The Department also proposed, and negotiators agreed, to include in 
proposed Sec.  200.6(e) the definition of ``assistive technology 
devices'' from 34 CFR 300.5, which would improve clarity and 
consistency throughout Departmental regulations. Further, to help 
States, districts, and schools understand how to implement the 
statutory reference to students with disabilities covered under ``other 
acts'' (i.e., other than IDEA), proposed Sec.  200.6(b)(1) would 
identify the individuals or teams responsible for making accommodations 
determinations under IDEA, section, and title II of the ADA. The 
negotiators discussed this section in detail, with a few negotiators 
stressing the differences between those individuals or teams that 
diagnose disabilities and individuals or teams that identify 
accommodations needed for individual students. The negotiating 
committee agreed that adding specificity around the language ``other 
acts'' with regard to the teams responsible for making determinations 
is important to ensure that State, local, and school leaders know how 
to implement the statute.
    Appropriate accommodations, consistent with IDEA regulations at 34 
CFR 300.160(b), are necessary to measure the academic achievement and 
functional performance of students with disabilities relative to the 
challenging State academic standards or alternate academic achievement 
standards. Proposed Sec.  200.6(b)(2) would require a State to 
disseminate information about the use of appropriate accommodations to 
provide parents and educators with adequate information for making such 
determinations. Because educators in many roles administer assessments 
and accommodations for assessments, proposed Sec.  200.6(b)(2)(ii) 
would detail the full range of staff who may need training to ensure 
they know how to administer assessments and make use of appropriate 
accommodations in order to best support all students. The negotiating 
committee agreed on the need for training all staff who will administer 
assessments, with negotiators particularly emphasizing the importance 
of including a requirement for training for educators in the proposed 
regulations.
    As some assessments that some States use to meet the requirements 
of title I, part A offer benefits to students beyond complying with 
Federal and State requirements, such as valid college-reportable scores 
on examinations commonly used for college entrance or placement, 
proposed Sec.  200.6(b)(3) would require a State to ensure that a 
student with a disability who uses appropriate accommodations as 
determined by the relevant individual or team consistent with State 
accommodations guidelines has the same opportunity to participate in, 
and receive benefits from, the assessment as a student who does not 
have a disability. To this end, if students who do not have 
disabilities are able to use scores on such assessments for the 
purposes of college entrance or placement, students with disabilities 
who use appropriate accommodations as determined by their IEP, 
placement, or other team, must receive the same benefit, including a 
score that is not flagged with respect to validity or the use of 
accommodations. This is critical to guarantee that use of such 
assessments is in accordance with civil rights protections. The 
negotiators discussed this issue at length, with members of numerous 
constituencies strongly concerned that assessments currently in use do 
not always offer all the same benefits for students who take them with 
appropriate accommodations, including the specific benefit of college 
score reporting. These committee members also cited the additional 
burden sometimes placed on families of such students when they must 
either pay for a second test without accommodations for the purpose of 
college applications or provide additional, burdensome justifications 
to an assessment provider through a system outside the regular IEP 
process in order to access their regular accommodations designated by 
the IEP team, or both. The negotiating committee felt strongly that, 
when such an assessment is used as a statewide or district-wide 
assessment to meet the requirements of title I, part A, students with 
disabilities must not encounter barriers that their nondisabled peers 
do not face. Therefore, proposed Sec.  200.6(b)(3) would require that a 
student with a disability receive appropriate accommodations, as

[[Page 44937]]

determined by the relevant team articulated in Sec.  200.6(b)(1)(i), 
(ii), or (iii), so that the student with a disability can participate 
in the assessment, and receive the same benefits from the assessment 
that non-disabled students receive.

Alternate Assessments Aligned With Alternate Academic Achievement 
Standards for Students With the Most Significant Cognitive Disabilities

    Statute: Section 1111(b)(2)(D) of the ESEA authorizes a State that 
adopts alternate academic achievement standards for students with the 
most significant cognitive disabilities to administer alternate 
assessments aligned with the State's academic content standards for the 
grade in which a student is enrolled and aligned with the State's 
alternate academic achievement standards. Section 1111(b)(2)(D)(i)(I), 
however, caps at the State level the number of students with the most 
significant cognitive disabilities who may be assessed with an 
alternate assessment aligned with alternate academic achievement 
standards. For each subject for which assessments are administered, the 
total number of students in the State as a whole assessed in that 
subject using an alternate assessment aligned with alternate academic 
achievement standards may not exceed 1.0 percent of the total number of 
students in the State who are assessed in that subject. Section 
1111(b)(2)(D)(ii)(II) further provides that nothing in section 
1111(b)(2)(D) may be construed as authorizing either the Secretary or a 
State to impose a cap on an individual LEA with respect to the 
percentage of students with the most significant cognitive disabilities 
that the LEA assesses with an alternate assessment aligned with 
alternate academic achievement standards. However, an LEA that exceeds 
the State's cap must submit information to the State justifying the 
need to exceed the cap. Under section 1111(b)(2)(D)(ii)(III), the State 
must provide appropriate oversight of an LEA that exceeds the State's 
cap. Section 1111(b)(2)(D)(ii)(IV) makes clear that the State cap is 
subject to the Secretary's waiver authority in section 8401 of the 
ESEA.
    Current Regulations: Current Sec.  200.6(a)(2) governs the use of 
alternate assessments based on alternate academic achievement standards 
for students with the most significant cognitive disabilities whom a 
child's IEP team determines cannot participate in the State 
assessments, even with appropriate accommodations. Section 
200.6(a)(2)(iii) requires a State that permits alternate assessments 
that yield results based on alternate academic achievement standards to 
document that students with the most significant cognitive disabilities 
are, to the extent possible, included in the general curriculum.
    Current Sec.  200.6(a)(4) requires a State to report separately to 
the Secretary the number and percentage of students with disabilities 
taking general assessments, general assessments with accommodations, 
alternate assessments based on the grade-level academic achievement 
standards, and alternate assessments based on the alternate academic 
achievement standards.
    While the current regulations do not limit the number of students 
who may take an alternate assessment based on alternate academic 
achievement standards, Sec.  200.13 does cap the number of proficient 
and advanced scores of students with the most significant cognitive 
disabilities based on alternate academic achievement standards that may 
be included in calculating adequate yearly progress (AYP) for LEAs and 
the State for accountability purposes at 1.0 percent of all students in 
the grades assessed in reading/language arts and in mathematics. Under 
Sec.  200.13(c)(4) of the current regulations, a State may not request 
a waiver from the Secretary for permission to exceed the 1.0 percent 
cap. However, under Sec.  200.13(c)(5), a State may grant an exception 
to an LEA, permitting it to exceed the 1.0 percent cap, if the LEA: (1) 
Demonstrates that the incidence of students with the most significant 
cognitive disabilities exceeds 1.0 percent of all students in the 
combined grades assessed, (2) explains why the incidence of such 
students exceeds 1.0 percent of all students assessed, and (3) 
documents that it is implementing the State's guidelines under Sec.  
200.1(f).
    Proposed Regulations: Proposed Sec.  200.6(c) would incorporate new 
statutory requirements regarding alternate assessments aligned with 
alternate academic achievement standards for students with the most 
significant cognitive disabilities, including the cap of 1.0 percent of 
students assessed in a subject in a school year at the State level, as 
well as clarify other statutory provisions.
    The proposed regulations in Sec.  200.6(c)(1) would articulate 
that, at the State's discretion, such assessments may measure student 
growth against the alternate academic achievement standards if done in 
a valid and reliable way. While the cap of 1.0 percent of students 
assessed in a subject in a school year applies only at the State level, 
an LEA that assesses more than 1.0 percent of students in a subject in 
a school year would be required to submit a justification to the State 
so that the State would be able to provide appropriate oversight and 
support. The State would also be required to make the LEA's 
justification available to the public so long as doing so does not 
reveal any personally identifiable student information.
    Proposed Sec.  200.6(c)(4) would detail information a State would 
be expected to submit if it determines it will need to request a waiver 
of the State-level cap of 1.0 percent of students taking an alternate 
assessment aligned with alternate academic achievement standards. The 
proposed regulations would require that such a waiver request be 
limited to one year and submitted at least 90 days before the start of 
the State's first testing window. Under the proposed regulations, the 
State's waiver request would be required to include--
     Certain State-level data, including the number and 
percentage of students in each subgroup identified in section 
1111(c)(2) of the ESEA (except the children with disabilities subgroup) 
taking such alternate assessments and data demonstrating that the State 
measured the achievement of at least 95 percent of all students and 95 
percent of students in the children with disabilities subgroup
     Specific assurances from the State that it has verified 
certain information with respect to each LEA that the State anticipates 
will assess more than 1.0 percent of students in any subject and any 
other LEA that the State determines will significantly contribute to 
the State's exceeding the State cap of 1.0 percent statewide; and
     A State plan and timeline to improve implementation of its 
guidelines for IEP teams under proposed Sec.  200.6(d) regarding 
appropriate use of such alternate assessments, as well as additional 
steps the State will take to support LEAs and to address any 
disproportionality in the number and percentage of students taking such 
alternate assessments as identified in the State-level data.
    If a State requests to extend a waiver for an additional year, 
having already received a previous waiver, the State also would be 
required to demonstrate substantial progress towards achieving each 
component of the prior year's plan.
    Proposed Sec.  200.6(c)(5) would require a State to report, as it 
had to previously, the number and percentage of children with 
disabilities who take general assessments, general assessments with 
accommodations, and alternate

[[Page 44938]]

assessments aligned with alternate academic achievement standards.
    Proposed Sec.  200.6(c)(7) would address the use of computer-
adaptive alternate assessments aligned with alternate academic 
achievement standards, which must be aligned with the challenging State 
academic content standards for the grade in which a student is 
enrolled, as must all alternate assessments aligned with alternate 
academic achievement standards. Computer-adaptive alternate assessments 
must also meet all other requirements expected of such alternate 
assessments that are not computer adaptive.
    Reasons: Although the current regulations cap for accountability 
purposes the number of proficient and advanced scores of students with 
the most significant cognitive disabilities who are assessed with an 
alternate assessment aligned with alternate academic achievement 
standards, the ESEA specifically limits participation in such alternate 
assessments to 1.0 percent of students assessed in a subject at the 
State level. Establishing waiver criteria will help ensure that the 1.0 
percent statutory cap on participation in alternate assessments aligned 
with alternate academic achievement standards is upheld with fidelity 
in order to ensure that only students with the most significant 
cognitive disabilities are assessed using such assessments.
    Accordingly, to clarify expectations regarding waivers of the 1.0 
percent State-level cap and ensure that waivers are granted only when 
appropriately justified, proposed Sec.  200.6(c)(4) would require that 
a State's waiver request include: (1) State-level data; (2) assurances 
from the State that it has verified that each relevant LEA (a) followed 
the State's guidelines regarding the appropriate use of alternate 
assessments aligned with alternate academic achievement standards, (b) 
will not significantly increase the extent to which the LEA assesses 
students using an alternate assessment aligned with alternate academic 
achievement standards without a justification demonstrating a higher 
prevalence of enrolled students with the most significant cognitive 
disabilities, and (c) will address any disproportionality in the number 
and percentage of economically disadvantaged students, students from 
major racial and ethnic groups, or English learners who are assessed 
using alternate assessments aligned with alternate academic achievement 
standards; (3) a plan and timeline by which the State will meet the cap 
of 1.0 percent of students taking the alternate assessment aligned with 
alternate academic achievement standards in a subject area; and (4) 
additional information on State progress if the State is requesting to 
extend a waiver. As a whole, these elements would provide a 
comprehensive picture of the State's efforts to address and correct its 
assessment of more than 1.0 percent of students on an alternate 
assessment aligned with alternate academic achievement standards. 
Reasons for each category of requirements are further explained below.
    The proposed regulations would require that a State's waiver 
request provide State-level data on the number and percentage of 
students in each subgroup defined in section 1111(c)(2), other than 
children with disabilities, who took the alternate assessment aligned 
with alternate academic achievement standards, as well as data showing 
that the State measured the achievement of at least 95 percent of all 
students and 95 percent of students in the children with disabilities 
subgroup. These data requirements are essential to provide greater 
transparency about which students in a State have been assessed, and 
which students are assessed with an alternate assessment. These data 
will allow the Department to take such information into account when 
deciding whether a State's request for a waiver is appropriately 
justified.
    A State would also be required to include in its request for a 
waiver an assurance that the State has verified certain information 
with each LEA that the State anticipates will assess more than 1.0 
percent of assessed students in any subject with an alternate 
assessment aligned with alternate academic achievement standards and 
any LEA that the State determines will significantly contribute to the 
State's exceeding the cap. By requiring an SEA to verify certain 
information with these LEAs, the proposed regulations would help ensure 
the State has LEA support in its efforts to come into compliance with 
the 1.0 percent cap by denoting each relevant LEA's commitment to 
appropriately implement State guidelines. The negotiators debated 
whether this verification should be limited to LEAs that exceed the cap 
and agreed that, while those LEAs should be included, there may also be 
LEAs that do not exceed the cap but do contribute to the State 
exceeding the cap because of large numbers of students taking an 
alternate assessment aligned with alternate academic achievement 
standards. The negotiators agreed that a State should verify certain 
information from such LEAs as well as those that exceed the cap.
    The negotiators agreed that a State's waiver request should further 
include a plan and timeline by which the State will ensure that 
alternate assessments aligned with alternate academic achievement 
standards are administered to no more than 1.0 percent of assessed 
students in a subject in the State. Negotiators agreed that, if a State 
requests a waiver for more than one year, the State should be required 
to demonstrate substantial progress toward achieving each component of 
the prior year's plan and timeline. Establishing these expectations 
would ensure that only students with the most significant cognitive 
disabilities are assessed with the alternate assessment aligned with 
alternate academic achievement standards and improve both the 
Department's and States' ability to implement the statutory 1.0 percent 
State cap.
    The negotiating committee devoted substantial time to considering 
each of the waiver criteria provisions. Some negotiators initially 
objected to several of the criteria, though the same negotiators 
conceded that clarity in advance regarding expectations for approval of 
waivers would be beneficial to States. Other negotiators initially 
advocated for more rigorous protections to ensure that States assess 
only those students with the most significant cognitive disabilities 
using an alternate assessment aligned with alternate academic 
achievement standards. The negotiators discussed this issue in 
conjunction with State guidelines and upon satisfactory resolution of 
how the regulations should address such guidelines, the negotiators 
were able to agree on the proposed waiver requirements by striking a 
balance between ensuring that only those students for whom an alternate 
assessment aligned with alternate academic achievement standards is 
determined appropriate take such a test while also allowing for State 
flexibility, particularly in those States that are meeting the 
requirement to test no more than 1.0 percent of students in the State 
in a subject using such an assessment. For additional information, see 
proposed Sec.  200.6(d), discussed below, which addresses the State 
guideline requirement. In applying for a waiver, a State that exceeds 
the 1.0 percent cap must review and, as needed, revise its definition 
of ``students with the most significant cognitive disabilities'' (the 
guidelines for which are discussed in more detail below). The 
negotiators discussed this issue in conjunction with State guidelines 
and came to satisfactory resolution of how the regulations should

[[Page 44939]]

address such guidelines, including the interaction between proposed 
waiver requirements and such guidelines.
    The proposed regulations would also incorporate statutory 
requirements for alternate assessments and maintain previous reporting 
requirements, adjusted to reflect only the use of alternate assessments 
aligned with alternate academic achievement standards for students with 
the most significant cognitive disabilities.
    Finally, the regulations would clarify the statutory provisions on 
the use of computer-adaptive alternate assessments in order to align 
expectations across non-adaptive and adaptive formats and ensure that 
reported scores reflect a student's progress against grade level 
academic content standards and aligned alternate academic achievement 
standards. The negotiating committee discussed and approved all 
references to computer-adaptive assessments, whether regarding general 
assessments, alternate assessments aligned with alternate academic 
achievement standards, or English language proficiency assessments, at 
the same time to ensure references to computer-adaptive assessments 
were consistent with each other and the statute.

State Guidelines

    Statute: Section 1111(b)(2)(D) of the ESEA requires a State to 
implement safeguards to ensure that alternate assessments aligned with 
alternate academic achievement standards are administered judiciously. 
The State's guidelines required under section 612(a)(16)(C) of the IDEA 
must assist a child's IEP team to determine when it will be necessary 
for a child with the most significant cognitive disabilities to 
participate in an alternate assessment aligned with alternate academic 
achievement standards. The State must also inform parents of a student 
who takes an alternate assessment aligned with alternate academic 
achievement standards that their child's academic achievement will be 
measured based on those standards and how participation in an alternate 
assessment may delay or otherwise affect the child's completion of the 
requirements for a regular high school diploma. The State must also 
promote the involvement and progress of students with the most 
significant cognitive disabilities in the general education curriculum. 
The State must describe in its State title I plan the steps the State 
has taken to incorporate universal design for learning, to the extent 
feasible, in designing alternate assessments and describe how general 
and special education teachers know how to administer alternate 
assessments and make appropriate use of accommodations. The State must 
promote using appropriate accommodations to increase the number of 
students with significant cognitive disabilities participating in 
grade-level instruction and may not preclude a student with the most 
significant cognitive disabilities from attempting to complete the 
requirements for a regular high school diploma.
    Current Regulations: Current Sec.  200.1(f) requires a State that 
adopts alternate academic achievement standards for students with the 
most significant cognitive disabilities to adopt guidelines for the use 
of alternate assessments aligned with those standards. The State must:
     Establish and monitor implementation of clear and 
appropriate guidelines for IEP teams to apply in determining which 
students with the most significant cognitive disabilities will be 
assessed based on alternate academic achievement standards;
     Inform IEP teams that students eligible to be assessed 
based on alternate academic achievement standards may be from any of 
the disability categories listed in the IDEA;
     Provide to IEP teams a clear explanation of the 
differences between assessments based on grade-level academic 
achievement standards and those based on alternate academic achievement 
standards, including any effects of State and local policies on a 
student's education resulting from taking an alternate assessment based 
on alternate academic achievement standards (such as whether only 
satisfactory performance on a regular assessment would qualify a 
student for a regular high school diploma); and
     Ensure that parents of students selected to be assessed 
based on alternate academic achievement standards under the State's 
guidelines are informed that their child's achievement will be measured 
based on alternate academic achievement standards.
    Additionally, under current Sec.  200.6(a)(1)(ii), a State must 
develop, disseminate information on, and promote the use of appropriate 
accommodations to increase the number of students with disabilities who 
are tested against academic achievement standards for the grade in 
which they are enrolled, and ensure that regular and special education 
teachers know how to administer assessments, including making use of 
appropriate accommodations.
    Proposed Regulations: Proposed Sec.  200.6(d) would incorporate 
requirements from current Sec.  200.1(f) and the ESEA regarding State 
guidelines. Specifically, proposed Sec.  200.6(d)(1) would require a 
State to adopt guidelines for IEP teams to use when determining, on a 
case-by-case basis, which students with the most significant cognitive 
disabilities should take an alternate assessment aligned with alternate 
academic achievement standards. Such guidelines would include a State 
definition of ``students with the most significant cognitive 
disabilities,'' that would address factors related to cognitive 
functioning and adaptive behavior. Under proposed Sec.  200.6(d)(1)(i)-
(ii), a student's designation as a student with the most significant 
cognitive disabilities may not be related to the presence or absence of 
a particular disability, previous low academic achievement, need for 
accommodations, or status as an English learner. Under proposed Sec.  
200.6(d)(1)(iii), the definition must also consider that such students 
are those requiring extensive, direct individualized instruction and 
substantial supports to achieve measurable gains on the challenging 
State academic content standards for the grade in which the student is 
enrolled.
    Under proposed Sec.  200.6(d)(2), the guidelines must also provide 
IEP teams with a clear explanation of the implications of a student's 
participation in an alternate assessment aligned with alternate 
academic achievement standards, including the effect on a student's 
opportunity to complete the requirements for a regular high school 
diploma and to complete those requirements on time, which must also be 
communicated to parents of students selected for such alternate 
assessments. Moreover, under proposed Sec.  200.6(d)(4), a State may 
not establish guidelines in such a manner as to preclude students who 
take such alternate assessments from attempting to complete the 
requirements for a regular high school diploma. Finally, under proposed 
Sec.  200.6(d)(7), the guidelines must emphasize that students with 
significant cognitive disabilities who do not meet the State's 
definition of ``students with the most significant cognitive 
disabilities'' must receive instruction for the grade in which the 
student is enrolled and be assessed against the challenging State 
academic achievement standards for the grade in which the student is 
enrolled.
    Reasons: The proposed regulations would incorporate relevant 
information previously found in Sec.  200.1(f) because it relates 
primarily to administering assessments and not to challenging State 
academic standards. The negotiators

[[Page 44940]]

agreed that referencing these topics in this section, rather than in 
Sec.  200.1, would make the regulations more coherent.
    Some negotiators argued strongly for defining the term ``students 
with the most significant cognitive disabilities'' in the proposed 
regulation to ensure that a State incorporates particular factors 
recognized in the field with respect to the characteristics of such 
students and to facilitate compliance with the State-level 1.0 percent 
cap on participation in alternate assessments aligned with alternate 
academic achievement standards. Ultimately, the negotiating committee 
agreed, instead of including a definition of this term, to add 
references to key aspects a State must consider in crafting its own 
definition to the requirements for State guidelines in proposed Sec.  
200.6(d)(1).
    The determination that a student will take an alternate assessment 
aligned with alternate academic achievement standards could affect the 
student's opportunity to complete the requirements for a regular high 
school diploma or the time such student would need to complete high 
school. Accordingly, the Department believes it is important that 
parents and IEP team members are aware of the potential consequences of 
such an assignment. Many negotiators expressed strong support for 
ensuring that State guidelines maximize IEP and parent information 
about the impact a student's assignment to an alternate assessment 
aligned with alternate academic achievement standards could have. The 
proposed regulations in Sec.  200.6(d)(2)-(3) would require State 
guidelines to provide such information to all relevant parties, and to 
do so in a manner consistent with the requirement in proposed Sec.  
200.2(e) to provide information to parents in a format accessible to 
them and, to the extent practicable, in writing in a language they can 
understand, with oral translations in all other cases. These guardrails 
provided committee members sufficient confidence that the regulation 
would lead to strong implementation of the statutory cap, even for 
those who previously favored defining ``students with the most 
significant cognitive disabilities'' in the proposed regulations.

English Learners

    Statute: Section 1111(b)(2)(B)(vii)(III) of the ESEA requires a 
State's assessment system to provide for the participation of all 
students, including English learners. English learners must be assessed 
in a valid and reliable manner and provided appropriate accommodations 
including, to the extent practicable, assessments in the language and 
form most likely to yield accurate data on what those students know and 
can do in academic content areas until they have achieved English 
proficiency. Section 1111(b)(2)(F) requires a State to identify in its 
title I State plan the languages other than English that are present to 
a significant extent in the student population of the State and 
indicate the languages for which annual academic assessments are not 
available and are needed. Notwithstanding this provision, a State must 
assess an English learner on the State's reading/language arts 
assessment in English after the student has attended public schools in 
the United States (except for schools in Puerto Rico) for three or more 
consecutive years. On a case-by-case basis, an LEA may assess a 
student's knowledge in reading/language arts in a language or form 
other than English for two additional years if the student has not yet 
reached a level of English proficiency sufficient to yield valid and 
reliable information on what the student knows and can do on tests 
written in English.
    Current Regulations: Current Sec.  200.6(b)(1) requires each State 
to include limited English proficient students in a valid and reliable 
manner in their academic assessment systems. Specifically, under 
current Sec.  200.6(b)(1)(i), a State must provide limited English 
proficient students with reasonable accommodations and, to the extent 
practicable, assessments in the language and form most likely to yield 
accurate and reliable information on what such students know and can 
do. Current Sec.  200.6(b)(1)(ii) requires each State, in its title I 
State plan, to identify languages other than English that are present 
in the student population served by the SEA and to indicate the 
languages for which academic assessments are not available and are 
needed. For each language for which assessments are needed, a State 
must make every effort to develop such assessment and may request 
assistance from the Secretary in identifying linguistically accessible 
academic assessments that are needed.
    Additionally, current Sec.  200.6(b)(2) requires a State to assess 
limited English proficient students' achievement in English in reading/
language arts if those students have been in public schools in the 
United States (except schools in Puerto Rico) for three or more 
consecutive years, and clarifies that this requirement does not exempt 
the State from assessing limited English proficient students for three 
years. Under the current regulations, an LEA may continue, for no more 
than two years, to assess a limited English proficient student in 
reading/language arts in the student's native language if the LEA 
determines, on a case-by-case basis, that the student has not reached a 
sufficient level of English language proficiency to yield valid and 
reliable information on reading/language arts assessments written in 
English.
    Proposed Regulations: The proposed regulations in Sec.  
200.6(f)(1)(i) would carry over the requirements from current Sec.  
200.6(b)(1)(i), because the ESEA maintains the requirement that English 
learners be assessed in a valid and reliable manner that includes 
reasonable accommodations. Proposed Sec.  200.6(f)(1)(i)(A) would 
clarify that English learners who are also identified as students with 
disabilities under proposed Sec.  200.6(a) must be provided 
accommodations as necessary based on both their status as English 
learners and their status as students with disabilities.
    Proposed Sec.  200.6(f)(1)(ii)(A) would require a State to ensure 
that the use of appropriate accommodations does not deny an English 
learner the opportunity to participate in the assessment, or any of the 
benefits from participation in the assessment, that are afforded to 
students who are not English learners, including that English learners 
who employ appropriate accommodations, consistent with State 
accommodations guidelines, can also use the results of such assessments 
for the purpose of entrance into to postsecondary education or training 
programs or for placement into credit-bearing courses in such programs.
    The requirements in proposed Sec.  200.6(f)(1)(ii)(B)-(E) would 
clarify a State's responsibility to provide for the assessment of 
English learners in the language most likely to yield accurate data on 
what those students know and can do in academic content areas, to the 
extent practicable. Specifically, a State would be required to provide 
in its title I State plan a definition for ``languages that are present 
to a significant extent in the participating student population'' and 
identify which languages other than English are included in this 
definition. In determining which languages are present to a significant 
extent, a State must ensure that its definition encompasses at least 
the most populous language other than English spoken in the 
participating student population, and consider languages spoken by 
distinct English learner populations (including those who are 
migratory, immigrants, or Native Americans), as well as languages that 
are spoken by significant numbers of English learners in certain LEAs 
or in certain grade levels.

[[Page 44941]]

    The State must then identify in its title I State plan whether 
assessments are available in any languages other than English and, if 
so, for which grades and content areas. For the languages determined to 
be present to a significant extent by the State, the State must also 
indicate in which languages academic assessments are not currently 
available but are needed. For each of those languages, a State would be 
required to describe how it will make every effort to develop 
assessments in languages other than English by, at a minimum, providing 
a plan and timeline, describing the process it used to gather public 
input and consult with key stakeholders, and, if needed, providing an 
explanation for why it was unable to develop assessments in the 
languages that are present to a significant extent.
    Reasons: The ESEA requires the provision of appropriate 
accommodations for English learners, including assessments in languages 
other than English if needed and practicable, in order to ensure that 
English learners are fairly and accurately assessed. The proposed 
regulations echo these statutory requirements. Additionally, 
negotiators agreed it is important to clarify that English learners who 
are also students with disabilities must be provided accommodations for 
both English learner status and status as a student with a disability 
because this population has unique needs that are sometimes overlooked.
    The statutory provisions pertaining to assessments in languages 
other than English remain very similar to the requirements of the ESEA, 
as amended by the NCLB. However, section 1111(b)(2)(F) now requires 
that States make every effort to develop assessments in languages 
``present to a significant extent in the participating student 
population''; given this new language in the ESEA, as amended by the 
ESSA, the proposed regulations provide relevant clarification. The 
proposed regulations would provide criteria to guide States in 
determining which languages other than English are present to a 
significant extent so that States can ensure that all English learners 
are included in the assessment system in a valid and reliable manner 
and to facilitate States' ability to make every effort to develop 
needed assessments. Rather than specify a particular definition for 
languages ``present to a significant extent in the participating 
student population,'' the negotiating committee recommended higher-
level criteria that a State must follow in establishing its definition 
of this term. These criteria, laid out in proposed Sec.  
200.6(f)(1)(iv), would reflect a minimum expectation for a State to 
meet the statutory requirements in this area, as well as critical 
considerations raised by negotiators (for example, considering 
languages that are spoken by significant portions of students in 
particular LEAs).
    In recent years, a number of States have developed or provided 
content assessments in the native languages of English learners. For 
example, in the past, Washington state provided translated versions of 
math and science assessments for all grades in Chinese, Korean, 
Russian, Somali, Spanish, and Vietnamese; Michigan provided math and 
science assessments for all grades in Spanish and Arabic. In school 
year 2013-2014, 13 States offered reading/language arts, mathematics, 
or science assessments in languages other than English. Two consortia 
of States, the Partnership for Assessment of Readiness for College and 
Careers (PARCC) and the Smarter Balanced Assessment Consortium (Smarter 
Balanced), offered native language options during their first year of 
administration in school year 2014-2015. Twenty-one States, the 
District of Columbia, the U.S. Virgin Islands, and the Department of 
Defense Education Activity (DoDEA) are in one of these assessment 
consortia. Smarter Balanced offers a full ``stacked'' Spanish 
translation of its math assessments (i.e., the complete Spanish and 
English versions are both provided to the student), pop-up glossaries 
in the 10 most common languages across the States in the consortium, 
and word-to-word dictionaries in other languages. PARCC provides a 
Spanish translation of its math assessments at the discretion of a 
State and offers translated directions and parent reports in the most 
common languages, with word-to-word dictionaries available for other 
languages.
    Each State must define languages ``present to a significant 
extent,'' identify those languages, and make every effort to develop or 
offer assessments in those languages (including creating a plan and 
timeline for developing assessments in such languages, gathering public 
input, and consulting with key stakeholders). If there is a significant 
reason preventing a State from completing the development of these 
assessments, proposed Sec.  200.6(f)(ii)(E)(3) would allow a State to 
provide an explanation of these overriding factors. Overall, 
negotiators wanted to ensure that English learners are included in 
academic assessments in a valid and reliable manner, including that 
States provide assessments in languages other than English when needed 
to gather accurate data on the knowledge and skills of English learners 
in academic content areas. Given that not all States have yet been able 
to develop assessments in languages other than English, negotiators 
agreed that providing clarity about what steps a State must take to 
demonstrate it has met the statutory requirements and leaving open 
flexibility if a State faces significant obstacles in developing such 
assessments would be helpful for the State and, ultimately, for 
students themselves.

Students in Native American Language Schools or Programs

    Statute: Section 1111(b)(2)(B)(ix) of the ESEA specifically 
excludes students in Puerto Rico from the requirement to measure 
knowledge of reading/language arts in English after three or more 
consecutive years of enrollment in schools in the United States because 
the language of instruction in Puerto Rico is Spanish.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  200.6(f)(2)(i) would provide 
an additional exemption to the requirement that students must be 
assessed in reading/language arts using assessments written in English 
after three years of attending schools in the United States (or five 
years, as determined by an LEA on a case-by-case basis) for students in 
Native American language programs or schools, pursuant to certain 
requirements laid out in proposed Sec.  200.6(g).
    Under the proposed regulations, this exemption would be available 
only for students enrolled in schools or programs that provide 
instruction primarily in a Native American language. Further, students 
enrolled in these Native American language schools or programs may be 
excluded from being assessed using a reading/language arts assessment 
written in English only if the State: Provides an assessment of 
reading/language arts in that Native American language that meets the 
requirements of proposed Sec.  200.2 and has been subject to the 
Department's assessment peer review; continues to assess the English 
language proficiency of all English learners enrolled in such schools 
or programs using the State's annual English language proficiency 
assessment; and ensures that students in such schools or programs are 
assessed in reading/language arts, using assessments written in 
English, by no later than the end of the eighth grade.
    Finally, proposed Sec.  200.6(h) would incorporate the definition 
of ``Native

[[Page 44942]]

American'' from section 8101(34) of the ESEA.
    Reasons: The Federal government has a trust responsibility to 
American Indian tribes. As part of this responsibility, Congress has 
emphasized the importance of preserving and revitalizing Native 
American languages in many Federal laws, including the ESEA, which 
contains support for schools and programs that use Native American 
languages as the primary language of instruction. Specifically, the 
following sections of the ESEA are relevant to this issue:
     Section 6133, which authorizes a new discretionary grant 
program for Native American and Alaska Native language immersion 
schools and programs to maintain, protect, and promote the rights and 
freedom of Native Americans and Alaska Natives to use, practice, 
maintain, and revitalize their languages;
     Section 3127, which addresses programs for Native American 
children studying Native American languages;
     Section 6111, which states that a purpose of Indian 
education is to meet the unique cultural, language, and educational 
needs of such students;
     Section 6205, which authorizes grants to entities 
operating Native Hawaiian programs of instruction in the Native 
Hawaiian language and establishes a priority for use of the Hawaiian 
language in instruction; and
     Section 6304, which authorizes use of grant funds for 
instructional programs that make use of Alaska Native languages and 
native language immersion programs or schools.
    In addition, the Native American Languages Act of 1990 (NALA) 
requires all Federal agencies to encourage and support the use of 
Native American languages as a medium of instruction and states that it 
is the policy of the United States to preserve, protect, and promote 
the rights and freedom of Native Americans to use, practice, and 
develop Native American languages. Moreover, Executive Order 13592, 
``Improving American Indian and Alaska Native Educational Opportunities 
and Strengthening Tribal Colleges and Universities,'' sets forth the 
Administration's policy, including ``to help ensure that American 
Indian/Alaska Native students have an opportunity to learn their Native 
languages.'' These declarations of Federal policy are supported by 
growing recognition of the importance of Native language preservation 
in facilitating educational success for Native American students. In a 
2007 study by Teachers of English to Students of Other Languages 
(TESOL),\1\ the majority of Native American youth surveyed stated that 
they value their Native American language, view it as integral to their 
sense of self, want to learn it, and view it as a means of facilitating 
their success in school and life.
---------------------------------------------------------------------------

    \1\ Romero-Little, Mary Eunice, Teresa L. McCarty, Larisa 
Warhol, and Oiedia Zepeda. 2007. ``Language Policies in Practice: 
Preliminary Findings from a Large-Scale Study of Native American 
Language Shift.'' TESOL Quarterly 41:3, 607-618.
---------------------------------------------------------------------------

    As a result, the negotiating committee recommended including the 
proposed exemption, which would be available only for students enrolled 
in schools or programs that provide instruction primarily in a Native 
American language (i.e., 50 percent or more of instructional time), 
including students identified as English learners and students without 
such designation. The additional requirements for this exemption are 
designed to ensure high-quality programs and outcomes for students. For 
students in a Native American language program who are also English 
learners, the LEA would still be required to administer the annual 
English language proficiency assessment as required under section 
1111(b)(2)(G) and to provide English language services pursuant to 
civil rights obligations. The requirement to use an assessment of 
reading/language arts in English no later than the eighth grade is 
intended to ensure that students are able to succeed in high school and 
postsecondary institutions in which the language of instruction is 
English. There are many different models of Native American language 
programs. Some start as immersion in the Native American language and 
gradually transition to more English throughout elementary school, 
whereas others adopt a bilingual approach across the grades. States or 
districts would have the flexibility under this exemption to decide in 
which grade to begin administering the reading/language arts assessment 
in English, so long as students begin taking such assessments in 
English no later than the eighth grade.
    Importantly, this exemption in proposed Sec.  200.6(g) reflects the 
input of negotiators, especially tribal leader negotiators on the 
negotiating committee. The tribal leader negotiators emphasized the 
Federal government's responsibility to help revitalize Native American 
languages in light of the history of Federal eradication of those 
languages, including through boarding schools where students were 
stripped of their tribal identities and languages. They also emphasized 
the Federal commitment to preserve Native American languages as found 
in the NALA as well as the ESEA. They articulated how the provision of 
reading/language arts assessments in Native American languages is 
critical for promoting high-quality instruction in Native American 
languages, which in turn facilitates improved educational outcomes for 
Native American students in these schools and programs, as well as 
helping to ensure the survival of Native American languages for future 
generations.
    The definition of ``Native American'' in proposed Sec.  200.6(h) 
would incorporate the definition of this term in section 8101(34) of 
the ESEA. Under that definition, ``Native American'' and ``Native 
American language'' have the same meaning as in section 103 of the 
NALA. Under NALA, ``Native American'' means an Indian (as defined in 20 
U.S.C. 7491(3), which is now section 6151 of the ESEA, but was 
unchanged substantively by the ESSA), Native Hawaiian, or Native 
American Pacific Islander. The definition of ``Indian'' in section 6151 
of the ESEA, includes Alaska Natives, as well as members of any 
federally recognized or State-recognized tribes. Because it is 
difficult to ascertain the full definition from section 8101(34) of the 
ESEA alone, we propose to provide the full definition in this section 
for the convenience of the public.

Assessing English Language Proficiency

    Statute: Under section 1111(b)(2)(G) and sections 3111(b)(2)(E)(i), 
3113(b)(6)(A), 3115(g)(2)(A), 3116(b)(2)(A), and 3121(a)(3) of the 
ESEA, a State must develop and administer a statewide annual assessment 
of English language proficiency to all English learners in schools 
served by the SEA. The English language proficiency assessment must be 
aligned with the State's English language proficiency standards under 
section 1111(b)(1)(F), which must be derived from the four domains of 
speaking, listening, reading, and writing, address the different 
proficiency levels of English learners, and be aligned with the 
challenging State academic standards. Under section 
1111(b)(2)(J)(ii)(II), if a State develops a computer-adaptive English 
language proficiency assessment, the State must ensure that the 
assessment measures a student's language proficiency, which may include 
growth toward proficiency, in order to measure the student's 
acquisition of English. If a State assesses students with the most 
significant cognitive disabilities with an alternate assessment aligned 
with alternate academic achievement standards, the

[[Page 44943]]

State must have an alternate English language proficiency assessment 
for those students who are English learners in accordance with section 
612(a)(16) of the IDEA.
    Current Regulations: Current Sec.  200.6(b)(3) requires each State 
to require each LEA to assess annually the English language 
proficiency, including reading, writing, speaking, and listening 
skills, of all students with limited English proficiency in schools in 
the LEA.
    Proposed Regulations: Proposed Sec.  200.6(f)(3)(i) would require 
each State to develop a uniform statewide assessment of English 
language proficiency (including skills in the four recognized domains 
of language) and require that its LEAs annually assess the English 
language proficiency of all English learners served using this 
statewide English language proficiency assessment.
    Proposed Sec.  200.6(f)(3)(ii) would require that a State's annual 
English language proficiency assessment provide coherent and timely 
information about each English learner's attainment of the State's 
English language proficiency standards, including information to be 
provided to parents consistent with the requirements of proposed Sec.  
200.2(e). Further, the proposed regulations would require that a 
State's English language proficiency assessment meet certain 
requirements for validity and reliability under proposed Sec.  
200.2(b)(2)-(4) and be submitted for Federal peer review under section 
1111(a)(4).
    If a State develops a computer-adaptive English language 
proficiency assessment, it would be required to ensure that the 
assessment measures a student's English language proficiency (which may 
include growth toward proficiency) and meets all other requirements for 
English language proficiency assessments in general.
    For English learners who are also students with disabilities under 
proposed Sec.  200.6(a), proposed Sec.  200.6(f)(3)(iv) would provide 
that a State must provide appropriate accommodations on the English 
language proficiency assessment and, for English learners who are also 
students with the most significant cognitive disabilities covered under 
proposed Sec.  200.6(a)(1)(ii) who cannot participate in the English 
language proficiency assessment even with accommodations, a State must 
provide for an alternate English language proficiency assessment.
    Reasons: The proposed regulations pertaining to a State's English 
language proficiency assessment under section 1111(b)(2)(G) of the ESEA 
would largely reflect statutory updates (e.g., the addition of 
computer-adaptive English language proficiency assessments) and provide 
clarification, as needed, to the statutory language.
    First, the proposed regulations would require uniform English 
language proficiency tests across the State. The ESEA refers in several 
places, including in section 3102(b)(1)(E)(i) and section 
3102(b)(3)(A)(ii), to the annual English language proficiency 
assessment as the ``State's English language proficiency assessment,'' 
though section 1111(b)(2)(G) does not expressly refer to this 
assessment as a statewide assessment. Currently, however, all States do 
use a uniform statewide assessment of English language proficiency. To 
ensure consistency with current practice, promote technical validity, 
quality, and comparability of English language proficiency assessment 
results across LEAs, and clarify an area of statutory ambiguity, 
proposed Sec.  200.6(f)(3)(i)(A) would make it clear that the annual 
English language proficiency assessment must be a uniform statewide 
assessment. Negotiators agreed without extensive debate that using a 
single statewide English language proficiency assessment is necessary 
to promote quality, consistency, and comparability.
    Due to the increased importance of the English language proficiency 
assessment, especially with the inclusion of progress toward achieving 
English language proficiency in the accountability system under section 
1111(c) of the ESEA, negotiators also emphasized that these assessments 
should be submitted for Federal peer review and held to the same 
requirements for validity and reliability as academic content 
assessments under proposed Sec.  200.2(b)(2), (4), and (6). 
Additionally, negotiators considered it important to require that 
information be provided to parents about student attainment of a 
State's English language proficiency standards, as measured by the 
annual English language proficiency assessment, in a language and form 
that they can understand in order to ensure parents have all needed 
information to support their children and to advocate for their 
children's educational opportunities and appropriate English language 
services.
    The proposed regulation also addresses the inclusion of English 
learners who are also students with disabilities in the annual English 
language proficiency assessment. Proposed Sec.  200.6(f)(3)(iv) would 
clarify that States must provide appropriate accommodations for English 
learners who are also students with disabilities as needed to measure 
their English language proficiency on the annual English language 
proficiency assessment, which is required by other provisions of the 
ESEA, as well as by the IDEA and other Federal statutes.
    Finally, proposed Sec.  200.6(f)(3)(v) would require that, if an 
English learner with the most significant cognitive disabilities cannot 
participate in the annual English language proficiency assessment even 
with accommodations, a State must provide for an alternate English 
language proficiency assessment for such a student. This is required by 
section 612 of the IDEA, as amended by the ESSA, and was noted in the 
Department's non-regulatory guidance from 2014 \2\ and 2015.\3\
---------------------------------------------------------------------------

    \2\ U.S. Department of Education. 2014. Questions and Answers 
Regarding Inclusion of English Learners with Disabilities in English 
Language Proficiency Assessments and Title III Annual Measurable 
Achievement Objectives. Available at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/q-and-a-on-elp-swd.pdf.
    \3\ U.S. Department of Education. 2015. Addendum to Questions 
and Answers Regarding Inclusion of English Learners with 
Disabilities in English Language Proficiency Assessments and Title 
III Annual Measurable Achievement Objectives. Available at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/addendum-q-and-a-on-elp-swd.pdf.
---------------------------------------------------------------------------

Recently Arrived English Learners

    Statute: With respect to a recently arrived English learner who has 
been enrolled in a school in one of the 50 States or the District of 
Columbia for less than 12 months, a State may, under section 1111(b)(3) 
of the ESEA, exclude the student from one administration of the State's 
reading/language arts assessment.
    Current Regulations: Current Sec.  200.6(b)(4) governs the limited 
exemption for recently arrived limited English proficient students in 
State assessment systems. Under the current regulations, a State may 
exempt a recently arrived limited English proficient student from one 
administration of the State's reading/language arts assessment. Section 
200.6(b)(4)(iv) defines a ``recently arrived limited English proficient 
student'' as a student with limited proficiency in English who has 
attended schools in the United States (i.e., schools in the 50 States 
and the District of Columbia) for less than 12 months.
    Under the current regulations, if a State does not assess a 
recently arrived English proficient student on the State's reading/
language arts assessment, the State must count the year in which the 
assessment would have been administered as the first of the three years 
in which the student may take the

[[Page 44944]]

State's reading/language arts assessment in a native language. Section 
200.6(b)(4)(i)(C) requires a State and its LEAs to report on State and 
district report cards the number of limited English language proficient 
students who are not assessed on the State's reading language arts 
assessment.
    Additionally, the current regulations reiterate that the exemption 
for recently arrived limited English proficient students does not 
relieve an LEA of its responsibility to provide such students with 
appropriate instruction to assist them in gaining English language 
proficiency as well as content knowledge in reading/language arts and 
math, or from its responsibility to assess the student's English 
language proficiency or mathematics achievement.
    Proposed Regulations: Proposed Sec.  200.6(f)(4) would update the 
current regulations to reflect a statutory change in the ESEA 
pertaining to the definition of a ``recently arrived English learner.'' 
Pursuant to the statute, the proposed regulations would define a 
``recently arrived English learner'' as an English learner who has been 
enrolled in schools in the United States for less than 12 months. We 
would also clarify in proposed Sec.  200.6(f)(4)(iii) that, though 
recently arrived English learners may be exempted from one 
administration of the reading/language arts assessment, these students 
must be assessed in mathematics and science consistent with the 
frequency described in proposed Sec.  200.5(a). The remaining proposed 
regulations in Sec.  200.6(f)(4) would carry over the current 
regulations, with only minor changes to reflect technical updates from 
the statute (e.g., updated statutory citations).
    Reasons: While the ESEA made changes to the inclusion of recently 
arrived English learners in accountability, it made no changes to the 
provisions pertaining to the inclusion of recently arrived English 
learners in a State's academic content assessments; that is, recently 
arrived English learners may still be exempted from one, and only one, 
administration of the reading/language arts assessment during a 
student's first 12 months in schools in the United States. Thus, the 
proposed regulations only reflect minor technical changes in this area 
and one area of additional clarification. Proposed Sec.  
200.6(f)(4)(iii) would clarify that recently arrived English learners 
must be assessed in science (as well as mathematics, which is already 
reflected in current Sec.  200.6(b)(4)(iii)), according to the 
frequency described in proposed Sec.  200.5(a), to reiterate for States 
that this exception only applies to reading/language arts. 
Additionally, the definition of a ``recently arrived English learner'' 
in proposed Sec.  200.6(f)(5)(i) reflects the statutory change that now 
defines recently arrived English learners as those who have been 
enrolled in schools in the United States for less than 12 months, 
rather than those who have attended schools in the United States for 
less than 12 months.

Highly Mobile Students

    Statute: Section 1111(b)(2)(B)(vii) of the ESEA requires a State's 
assessment system to provide for the participation of all students, 
including students who are highly mobile and who may not attend the 
same school or LEA for a full academic year.
    Current Regulations: Current Sec.  200.6(c) reiterates that a State 
must include migratory and other mobile students in its academic 
assessment system even if those students are not included for 
accountability purposes. Additionally, Sec.  200.6(d) reinforces that a 
State must include students experiencing homelessness in its academic 
assessment, reporting, and accountability systems, but clarifies that 
States need not disaggregate academic assessment data on students 
experiencing homelessness separately.
    Proposed Regulations: Proposed Sec.  200.6(i) would clarify that a 
State must include all students, including highly mobile student 
populations, in its assessment system, including migratory children, 
homeless children or youth, children in foster care, and students with 
a parent who is a member of the Armed Forces on active duty. Proposed 
Sec.  200.2(b)(11) would include the definitions associated with these 
student populations.
    Reasons: Proposed Sec.  200.6(i), which addresses highly mobile 
students, would build on current regulations and continue to reiterate 
that a State must include migratory children and homeless children and 
youth in the State's assessment system. Since the ESEA brings to the 
forefront additional highly mobile student populations (specifically, 
children in foster care and military-connected students), the proposed 
regulations would broaden the current regulations to emphasize these 
vulnerable student populations as well. Given the transience and 
mobility associated with these populations, and research showing that 
highly mobile students are more likely than their peers to experience 
negative educational outcomes,\4\ we consider it crucial to reaffirm 
the requirement that a State must include all such students in the 
assessment system and in the subgroups of students included in the 
accountability system under section 1111(c)(2) of the ESEA.
---------------------------------------------------------------------------

    \4\ See, for example, Voight, A., Shinn, M. & Nation, M. 2012. 
``The longitudinal effects of residential mobility on the academic 
achievement of urban elementary and middle school students.'' 
Educational Researcher 41(9), 385-392; and Rumberger, R. & Larson, 
K. 1998. Student mobility and the increased risk of high school 
dropout. American Journal of Education 107(1), 1-35.
---------------------------------------------------------------------------

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is ``significant'' 
and, therefore, subject to the requirements of the Executive order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
a ``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed regulatory action is significant and subject to 
review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things

[[Page 44945]]

and to the extent practicable--the costs of cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We have assessed the potential costs and benefits of this 
regulatory action. The potential costs associated with the proposed 
regulations are those resulting from statutory requirements and those 
we have determined as necessary for effective and efficient 
administration of the assessment provisions in part A of title I of the 
ESEA. Elsewhere in this section under Paperwork Reduction Act of 1995, 
we identify and explain burdens specifically associated with 
information collection requirements.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these proposed regulations, we have determined that 
the benefits would justify the costs.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Discussion of Costs and Benefits

    The Department believes that this regulatory action would generally 
not impose significant new costs on States or their LEAs. This action 
would implement and clarify the changes to the assessment provisions in 
part A of title I of the ESEA made by the ESSA, which as discussed 
elsewhere in this notice are limited in scope. The costs to States and 
LEAs for complying with these changes would similarly be limited, and 
would be financed with Federal education funds, including funds 
available under Grants for State Assessments and Related Activities.
    Moreover, the proposed regulations would implement statutory 
provisions that could ease assessment burden on States and LEAs. For 
example, proposed Sec.  200.5(b) would implement the provision in 
section 1111(b)(2)(C) of the ESEA under which a State that administers 
an end-of-course mathematics assessment to meet the high school 
assessment requirement may exempt an eighth-grade student who takes the 
end-of-course assessment from also taking the mathematics assessment 
the State typically administers in eighth grade (provided that the 
student takes a more advanced mathematics assessment in high school), 
thus avoiding the double-testing of eighth-grade students who take 
advanced mathematics coursework.
    In general, the Department believes that the costs associated with 
the proposed regulations (which are discussed in more detail below for 
potential cost-bearing requirements not related to information 
collection requirements) are outweighed by their benefits, which would 
include the administration of assessments that produce valid and 
reliable information on the achievement of all students, including 
students with disabilities and English learners, that can be used by 
States to effectively measure school performance and identify 
underperforming schools, by LEAs and schools to inform and improve 
classroom instruction and student supports, and by parents and other 
stakeholders to hold schools accountable for progress, ultimately 
leading to improved academic outcomes and the closing of achievement 
gaps, consistent with the purpose of title I of the ESEA.
Locally Selected, Nationally Recognized High School Academic 
Assessments
    Proposed Sec.  200.3(b) would implement the new provision in 
section 1111(b)(2)(H) of the ESEA under which a State may permit an LEA 
to administer a State-approved nationally recognized high school 
academic assessment in reading/language arts, mathematics, or science 
in lieu of the high school assessment the State typically administers 
in that subject. If a State seeks to approve a nationally recognized 
high school academic assessment for use by one or more of its LEAs, 
proposed Sec.  200.3(b)(1) would require, consistent with the statute, 
that the State establish technical criteria to determine whether the 
assessment meets specific requirements for technical quality and 
comparability. In establishing these criteria, we expect States to rely 
in large part on existing Department assessment peer review guidance 
and other assessment technical quality resources. Accordingly, we 
believe that the costs of complying with proposed Sec.  200.3(b)(1)--
which could be financed, in particular, with funds available under 
Grants for State Assessments and Related Activities--would be minimal 
for the 20 States that we estimate will seek to approve a nationally 
recognized high school academic assessment for LEA use. Further, we 
believe the costs of this proposed regulation are outweighed by its 
benefit to LEAs in those States, namely, the flexibility to administer 
for accountability purposes the assessments they believe most 
effectively measure, and can be used to identify and address, the 
academic needs of their high school students.
Native Language Assessments
    Proposed Sec.  200.6(f)(1) would implement the new provision in 
section 1111(b)(2)(F) of the ESEA requiring a State to make every 
effort to develop, for English learners, annual academic assessments in 
languages other than English that are present to a significant extent 
in the participating student population. In doing so, proposed Sec.  
200.6(f)(1) would require a State, in its title I State plan, to define 
``languages other than English that are present to a significant extent 
in the participating student population,'' ensure that its definition 
includes at least the most populous language other than English spoken 
by the participating student population, describe how it will make 
every effort to develop assessments consistent with its definition 
where such assessments are not available and are needed, and explain, 
if applicable, why it is unable to complete the development of those 
assessments despite making every effort. Although a State may incur 
costs in complying with the requirement to make every effort to develop 
these assessments consistent with its definition, we do not believe 
these costs would be significant, in part because under section 
1111(b)(2)(F)(ii) a State may request assistance from the Secretary in 
identifying appropriate linguistically accessible academic assessment 
measures. We believe the costs of complying with this requirement are 
outweighed by its potential benefits to SEAs and their LEAs, which 
would include fairer and more accurate assessments of the achievement 
of English learners.

[[Page 44946]]

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  200.2.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section.

Regulatory Flexibility Act Certification

    The Secretary proposes to certify that these proposed requirements 
would not have a significant economic impact on a substantial number of 
small entities. Under the U.S. Small Business Administration's Size 
Standards, small entities include small governmental jurisdictions such 
as cities, towns, or school districts (LEAs) with a population of less 
than 50,000. Although the majority of LEAs that receive ESEA funds 
qualify as small entities under this definition, the requirements 
proposed in this document would not have a significant economic impact 
on these small LEAs because the costs of implementing these 
requirements would be covered by funding received by States under 
Federal education programs including Grants for State Assessments and 
Related Activities. The Department believes the benefits provided under 
this proposed regulatory action outweigh the burdens on these small 
LEAs of complying with the proposed requirements. In particular, the 
proposed requirements would help ensure that assessments administered 
in these LEAs produce valid and reliable information on the achievement 
of all students, including students with disabilities and English 
learners, that can be used to inform and improve classroom instruction 
and student supports, ultimately leading to improved student academic 
outcomes. The Secretary invites comments from small LEAs as to whether 
they believe the requirements proposed in this document would have a 
significant economic impact on them and, if so, requests evidence to 
support that belief.

Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department provides the general public and Federal agencies 
with an opportunity to comment on proposed and continuing collections 
of information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    Proposed Sec. Sec.  200.2, 200.3, 200.5, 200.6, and 200.8 contain 
information collection requirements. Under the PRA, the Department has 
submitted a copy of these sections to OMB for its review.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of law, 
no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection 
instrument does not display a currently valid OMB control number.
    In the final regulations, we will display the control number 
assigned by OMB to any information collection requirements proposed in 
this NPRM and adopted in the final regulations.
    The proposed regulations would affect a currently approved 
information collection, 1810-0576. Under 1810-0576, the Department is 
approved to collect information from States, including assessment 
information. On May 31, 2016, the Department published in the Federal 
Register a notice of proposed rulemaking (81 FR 34539), which 
identified proposed changes to information collection 1810-0576. These 
proposed regulations would result in additional changes to the existing 
information collection, described below.
    Proposed Sec.  200.2(d) would require States to submit evidence 
regarding their general assessments, alternate assessments, and English 
language proficiency assessments for the Department's peer review 
process, and proposed Sec.  200.2(b)(5)(ii) would require that States 
make evidence of technical quality publicly available. Proposed Sec.  
200.3(b)(2)(ii) would require a State that allows an LEA to administer 
a locally selected, nationally recognized high school academic 
assessment in place of the State assessment to submit the selected 
assessment for the Department's peer review process. We anticipate that 
52 States will spend 200 hours preparing and submitting evidence 
regarding their content assessments, alternate assessments, and English 
language proficiency assessments for peer review, and that 20 States 
will spend an additional 100 hours preparing and submitting evidence 
relating to locally selected, nationally recognized high school 
academic assessments. Accordingly, we anticipate the total burden over 
the three-year period for which we seek information collection approval 
to be 12,400 hours for all respondents, resulting in an increased 
annual burden of 4,133 hours.
    Proposed Sec.  200.5(b)(4) would require a State that uses the 
middle school mathematics exception to describe in its title I State 
plan its strategies to provide all students in the State the 
opportunity to be prepared for and take advanced mathematics coursework 
in middle school. We anticipate that this will not increase burden, as 
information collection 1810-0576 already accounts for the burden 
associated with preparing the title I State plan.
    Proposed Sec.  200.6(b)(2)(i) would require all States to develop, 
disseminate information to schools and parents, and promote the use of 
appropriate accommodations to ensure that all students with 
disabilities are able to participate in academic instruction and 
assessments. We anticipate that 52 States will spend 60 hours 
developing and disseminating this information annually, resulting in an 
annual burden increase of 3,120 hours.
    Proposed Sec.  200.6(c)(3)(iv) would require all States to make 
publicly available information submitted by an LEA justifying the need 
of the LEA to exceed the cap on the number of students with the most 
significant

[[Page 44947]]

cognitive disabilities who may be assessed in a subject using an 
alternate assessment aligned with alternate academic achievement 
standards. We anticipate that 52 States will spend 20 hours annually 
making this information available, resulting in an annual burden 
increase of 1,040 hours.
    Proposed Sec.  200.6(c)(4) would allow a State that anticipates 
that it will exceed the cap for assessing students with the most 
significant cognitive disabilities with an alternate assessment aligned 
with alternate academic achievement standards to request a waiver for 
the relevant subject for one year. We anticipate that 15 States will 
spend 40 hours annually preparing a waiver request, resulting in an 
annual burden increase of 600 hours.
    Proposed Sec.  200.6(c)(5) would require each State to report 
annually to the Secretary data relating to the assessment of children 
with disabilities. We anticipate that 52 States will spend 40 hours 
annually preparing a waiver request, resulting in an annual burden 
increase of 2,080 hours.
    Proposed Sec.  200.6(d)(3) would establish requirements for each 
State that adopts alternate academic achievement standards for students 
with the most significant cognitive disabilities. Such a State would be 
required to ensure that parents of students with the most significant 
cognitive disabilities assessed using an alternate assessment aligned 
with alternate academic achievement standards are informed that their 
child's achievement will be measured based on alternate academic 
achievement standards, and informed how participation in such 
assessment may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma. We anticipate that 
52 States will spend 100 hours annually ensuring that relevant parents 
receive this information, resulting in an annual burden increase of 
5,200 hours.
    Proposed Sec.  200.8(a)(2) would require a State to provide to 
parents, teachers, and principals individual student interpretive, 
descriptive, and diagnostic reports, including information regarding 
academic achievement on academic assessments. Proposed Sec.  
200.8(b)(1) would require a State to produce and report to LEAs and 
schools itemized score analyses. We anticipate that 52 States will 
spend 1,500 hours annually providing this information, resulting in a 
total burden increase of 78,000 hours.

    Collection of Information From SEAs--Assessments and Notification
------------------------------------------------------------------------
                                                           OMB Control
                                                           number and
      Regulatory section        Information collection  estimated change
                                                            in burden
------------------------------------------------------------------------
Sec.   200.2(b), Sec.           States would be         OMB 1810-0576.
 200.2(d), Sec.                  required to submit      The burden
 200.3(b)(2)(ii).                evidence for the        would increase
                                 Department's peer       by 4,133 hours.
                                 review process, and
                                 to make this evidence
                                 available to the
                                 public.
Sec.   200.5(b)(4)............  States would be         OMB 1810-0576.
                                 required to describe    No change in
                                 in the title I State    burden, as this
                                 plan strategies to      burden is
                                 provide all students    already
                                 with the opportunity    considered in
                                 to take advanced        the burden of
                                 mathematics             preparing a
                                 coursework in middle    title I State
                                 school.                 plan.
Sec.   200.6(b)(2)(i).........  States would be         OMB 1810-0576.
                                 required to             The burden
                                 disseminate             would increase
                                 information regarding   by 3,120 hours.
                                 the use of
                                 appropriate
                                 accommodations to
                                 schools and parents.
Sec.   200.6(c)(3)(iv)........  Certain States would    OMB 1810-0576.
                                 be required to make     The burden
                                 publicly available      would increase
                                 LEA-submitted           by 1,040 hours.
                                 information about the
                                 need to exceed the
                                 cap for assessing
                                 students with the
                                 most significant
                                 cognitive
                                 disabilities with an
                                 alternate assessment
                                 aligned with
                                 alternate academic
                                 achievement standards.
Sec.   200.6(c)(4)............  Certain States would    OMB 1810-0576.
                                 request a waiver from   The burden
                                 the Secretary, to       would increase
                                 exceed the cap for      by 600 hours.
                                 assessing students
                                 with the most
                                 significant cognitive
                                 disabilities with an
                                 alternate assessment
                                 aligned with
                                 alternate academic
                                 achievement standards.
Sec.   200.6(c)(5)............  States would be         OMB 1810-0576.
                                 required to report to   We anticipate
                                 the Secretary data      the burden
                                 relating to the         would increase
                                 assessment of           by 2,080 hours.
                                 children with
                                 disabilities.
Sec.   200.6(d)(3)............  States that adopt       OMB 1810-0576.
                                 alternate achievement   The burden
                                 standards for           would increase
                                 students with the       by 5,200 hours.
                                 most significant
                                 cognitive
                                 disabilities would be
                                 required to ensure
                                 certain parents are
                                 provided with
                                 information.
Sec.   200.8(a)(2), Sec.        States would be         OMB 1810-0576.
 200.8(b)(1).                    required to provide     The burden
                                 student assessment      would increase
                                 reports to States,      by 78,000
                                 teachers, and           hours.
                                 principals, as well
                                 as itemized score
                                 analyses for LEAs and
                                 schools.
------------------------------------------------------------------------

    Proposed Sec.  200.3(c)(1)(i) would require an LEA that intends to 
request approval from a State to use a locally selected, nationally 
recognized high school academic assessment in place of the statewide 
academic assessment to notify parents. Proposed Sec.  200.3(c)(3) would 
require any LEA that receives such approval to notify all parents of 
high school students it serves that the LEA received approval and will 
use these assessments. Finally, proposed Sec.  200.3(c)(4) would 
require the LEA to notify both parents and the State in any subsequent 
years in which the LEA elects to administer a locally selected, 
nationally recognized high school academic assessment. We anticipate 
that 850 LEAs will spend 30 hours preparing each notification and that, 
over the three-year period for which we seek approval, an LEA will be 
required to conduct these notifications four times.
    Accordingly, we anticipate the total burden over the three-year 
period for which we seek information collection approval to be 102,000 
hours, resulting in an increased annual burden of 34,000 hours.

[[Page 44948]]



       Collection of Information From LEAs--Parental Notification
------------------------------------------------------------------------
                                                           OMB Control
                                                           number and
      Regulatory section        Information collection  estimated change
                                                            in burden
------------------------------------------------------------------------
Sec.   200.3(c)(1)(i), Sec.     Certain LEAs would be   OMB 1810-0576.
 200.3(c)(3), Sec.               required to notify      The burden
 200.3(c)(4).                    parents of high         would increase
                                 school students about   by 34,000
                                 selected assessments.   hours.
------------------------------------------------------------------------

    We have prepared an Information Collection Request (ICR) for these 
collections. If you want to review and comment on the ICR, please 
follow the instructions listed under the ADDRESSES section of this 
notice. Please note the Office of Information and Regulatory Affairs 
(OMB) and the Department review all comments on an ICR that are posted 
at www.regulations.gov. In preparing your comments, you may want to 
review the ICR in www.regulations.gov or in www.reginfo.gov. The 
comment period will run concurrently with the comment period of the 
NPRM. We consider your comments on these collections of information 
in--
     Deciding whether the collections are necessary for the 
proper performance of our functions, including whether the information 
will have practical use;
     Evaluating the accuracy of our estimate of the burden of 
the collections, including the validity of our methodology and 
assumptions;
     Enhancing the quality, usefulness, and clarity of the 
information we collect; and
     Minimizing the burden on those who must respond.
    This includes exploring the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques.
    OMB is required to make a decision concerning the collections of 
information contained in these regulations between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, to 
ensure that OMB gives your comments full consideration, it is important 
that OMB receives your comments by August 10, 2016. This does not 
affect the deadline for your comments to us on the proposed 
regulations.
ADDRESSES: Comments submitted in response to this notice should be 
submitted electronically through the Federal eRulemaking Portal at 
www.regulations.gov by selecting Docket ID ED-2016-OESE-0053 or via 
postal mail commercial delivery or hand delivery. Please specify the 
Docket ID number and indicate ``Information Collection Comments'' on 
the top of your comments if your comments relate to the information 
collection for these proposed regulations. Written requests for 
information or comments submitted by postal mail or delivery should be 
addressed to the Director of the Information Collection Clearance 
Division, U.S. Department of Education, 400 Maryland Avenue SW., 
Mailstop L-OM-2-2E319LBJ, Room 2E115, Washington, DC 20202-4537. 
Comments submitted by fax or email and those submitted after the 
comment period will not be accepted.

FOR FURTHER INFORMATION CONTACT: Electronic mail [email protected]. 
Please do not send comments here.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF, 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.
(Catalog of Federal Domestic Assistance Numbers: 84.010 Title I 
Grants to Local Educational Agencies; and 84.369 Grants for State 
Assessments and Related Activities)

List of Subjects in 34 CFR Part 200

    Education of disadvantaged, Elementary and secondary education, 
Grant programs--education, Indians--education, Infants and children, 
Juvenile delinquency, Migrant labor, Private schools, Reporting and 
recordkeeping requirements.

    Dated: July 1, 2016.
John B. King, Jr.,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary of 
Education proposes to amend part 200 of title 34 of the Code of Federal 
Regulations as follows:

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

0
1. The authority citation for part 200 continues to read as follows:

    Authority:  20 U.S.C 6301-6576, unless otherwise noted.

0
2. Section 200.2 is revised to read as follows:


Sec.  200.2  State responsibilities for assessment.

    (a)(1) Each State, in consultation with its LEAs, must implement a 
system of high-quality, yearly student academic assessments that 
includes, at a minimum, academic assessments in mathematics, reading/
language arts, and science.
    (2)(i) The State may also measure the achievement of students in 
other academic subjects in which the State has adopted challenging 
State academic standards.
    (ii) If a State has developed assessments in other subjects for all 
students, the State must include students participating under subpart A 
of this part in those assessments.
    (b) The assessments required under this section must--
    (1)(i) Except as provided in Sec. Sec.  200.3, 200.5(b), and 
200.6(c) and section 1204 of the Act, be the same assessments used to 
measure the achievement of all students; and

[[Page 44949]]

    (ii) Be administered to all students consistent with Sec.  
200.5(a);
    (2)(i) Be designed to be valid and accessible for use by all 
students, including students with disabilities and English learners; 
and
    (ii) Be developed, to the extent practicable, using the principles 
of universal design for learning. For the purposes of this section, 
``universal design for learning'' means a scientifically valid 
framework for guiding educational practice that--
    (A) Provides flexibility in the ways information is presented, in 
the ways students respond or demonstrate knowledge and skills, and in 
the ways students are engaged; and
    (B) Reduces barriers in instruction, provides appropriate 
accommodations, supports, and challenges, and maintains high 
achievement expectations for all students, including students with 
disabilities and English learners;
    (3)(i)(A) Be aligned with the challenging State academic standards; 
and
    (B) Provide coherent and timely information about student 
attainment of those standards and whether a student is performing at 
the grade level in which the student is enrolled;
    (ii)(A)(1) Be aligned with the challenging State academic content 
standards; and
    (2) Address the depth and breadth of those standards; and
    (B)(1) Measure student performance based on challenging State 
academic achievement standards that are aligned with entrance 
requirements for credit-bearing coursework in the system of public 
higher education in the State and relevant State career and technical 
education standards consistent with section 1111(b)(1)(D) of the Act; 
or
    (2) With respect to alternate assessments for students with the 
most significant cognitive disabilities, measure student performance 
based on alternate academic achievement standards defined by the State 
consistent with section 1111(b)(1)(E) of the Act that reflect 
professional judgment as to the highest possible standards achievable 
by such students to ensure that a student who meets the alternate 
academic achievement standards is on track to pursue postsecondary 
education or competitive, integrated employment, consistent with the 
purposes of the Rehabilitation Act of 1973, as amended by the Workforce 
Innovation and Opportunity Act, as in effect on July 22, 2014; and
    (4)(i) Be valid, reliable, and fair for the purposes for which the 
assessments are used; and
    (ii) Be consistent with relevant, nationally recognized 
professional and technical testing standards;
    (5) Be supported by evidence that--
    (i) The assessments are of adequate technical quality--
    (A) For each purpose required under the Act; and
    (B) Consistent with the requirements of this section; and
    (ii) Is made available to the public, including on the State's Web 
site;
    (6) Be administered in accordance with the frequency described in 
Sec.  200.5(a);
    (7) Involve multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills and understanding of challenging content, as defined by the 
State. These measures may--
    (i) Include valid and reliable measures of student academic growth 
at all achievement levels to help ensure that the assessment results 
could be used to improve student instruction; and
    (ii) Be partially delivered in the form of portfolios, projects, or 
extended performance tasks;
    (8) Objectively measure academic achievement, knowledge, and skills 
without evaluating or assessing personal or family beliefs and 
attitudes, except that this provision does not preclude the use of--
    (i) Constructed-response, short answer, or essay questions; or
    (ii) Items that require a student to analyze a passage of text or 
to express opinions;
    (9) Provide for participation in the assessments of all students in 
the grades assessed consistent with Sec. Sec.  200.5(a) and 200.6;
    (10) At the State's discretion, be administered through--
    (i) A single summative assessment; or
    (ii) Multiple statewide interim assessments during the course of 
the academic year that result in a single summative score that provides 
valid, reliable, and transparent information on student achievement 
and, at the State's discretion, student growth, consistent with 
paragraph (b)(4) of this section;
    (11) Consistent with section 1111(b)(2)(B)(xi) and section 
1111(h)(1)(C)(ii) of the Act, enable results to be disaggregated within 
each State, LEA, and school by--
    (i) Gender;
    (ii) Each major racial and ethnic group;
    (iii) Status as an English learner as defined in section 8101(20) 
of the Act;
    (iv) Status as a migratory child as defined in section 1309(3) of 
title I, part C of the Act;
    (v) Children with disabilities as defined in section 602(3) of the 
Individuals with Disabilities Education Act (IDEA) as compared to all 
other students;
    (vi) Economically disadvantaged students as compared to students 
who are not economically disadvantaged;
    (vii) Status as a homeless child or youth as defined in section 
725(2) of title VII, subtitle B of the McKinney-Vento Homeless 
Assistance Act, as amended;
    (viii) Status as a child in foster care. ``Foster care'' means 24-
hour substitute care for children placed away from their parents and 
for whom the agency under title IV-E of the Social Security Act has 
placement and care responsibility. This includes, but is not limited 
to, placements in foster family homes, foster homes of relatives, group 
homes, emergency shelters, residential facilities, child care 
institutions, and preadoptive homes. A child is in foster care in 
accordance with this definition regardless of whether the foster care 
facility is licensed and payments are made by the State, tribal, or 
local agency for the care of the child, whether adoption subsidy 
payments are being made prior to the finalization of an adoption, or 
whether there is Federal matching of any payments that are made; and
    (ix) Status as a student with a parent who is a member of the armed 
forces on active duty or serves on full-time National Guard duty, where 
``armed forces,'' ``active duty,'' and ``full-time National Guard 
duty'' have the same meanings given them in 10 U.S.C. 101(a)(4), 
101(d)(1), and 101(d)(5);
    (12) Produce individual student reports consistent with Sec.  
200.8(a); and
    (13) Enable itemized score analyses to be produced and reported to 
LEAs and schools consistent with Sec.  200.8(b).
    (c)(1) At its discretion, a State may administer the assessments 
required under this section in the form of computer-adaptive 
assessments if such assessments meet the requirements of section 
1111(b)(2)(J) of the Act and this section. A computer-adaptive 
assessment--
    (i) Must measure a student's academic proficiency based on the 
challenging State academic standards for the grade in which the student 
is enrolled and growth toward those standards; and
    (ii) May measure a student's academic proficiency and growth using 
items above or below the student's grade level.
    (2) If a State administers a computer-adaptive assessment, the 
determination under paragraph (b)(3)(i)(B) of this section of a 
student's academic proficiency for the grade in which the

[[Page 44950]]

student is enrolled must be reported on all reports required by Sec.  
200.8 and section 1111(h) of the Act.
    (d) A State must submit evidence for peer review under section 
1111(a)(4) of the Act that its assessments under this section and 
Sec. Sec.  200.3, 200.4, 200.5(b), 200.6(c), 200.6(f)(1) and (3), and 
200.6(g) meet all applicable requirements.
    (e) Information provided to parents under section 1111(b)(2) of the 
Act must--
    (1) Be in an understandable and uniform format;
    (2) Be, to the extent practicable, written in a language that 
parents can understand or, if it is not practicable to provide written 
translations to a parent with limited English proficiency, be orally 
translated for such parent; and
    (3) Be, upon request by a parent who is an individual with a 
disability as defined by the Americans with Disabilities Act (ADA), 
provided in an alternative format accessible to that parent.

(Authority: 10 U.S.C. 101(a)(4), (d)(1), and (d)(5); 20 U.S.C. 
1003(24), 6311(a)(4), 6311(b)(2), and 6399(3); 42 U.S.C. 11434a, 
12102; and 45 CFR 1355(a))


0
3. Section 200.3 is revised to read as follows:


Sec.  200.3  Locally selected, nationally recognized high school 
academic assessments.

    (a) In general. (1) A State, at the State's discretion, may permit 
an LEA to administer a nationally recognized high school academic 
assessment in each of reading/language arts, mathematics, or science, 
approved in accordance with paragraph (b) of this section, in lieu of 
the respective statewide assessment under Sec.  200.5(a)(1)(i)(B) and 
(a)(1)(ii)(C) if such assessment meets all requirements of this 
section.
    (2) An LEA must administer the same locally selected, nationally 
recognized academic assessment to all high school students in the LEA 
consistent with the requirements in Sec.  200.5(a)(1)(i)(B) and 
(a)(1)(ii)(C), except for students with the most significant cognitive 
disabilities who are assessed on an alternate assessment aligned with 
alternate academic achievement standards, consistent with Sec.  
200.6(c).
    (b) State approval. If a State chooses to allow an LEA to 
administer a nationally recognized high school academic assessment 
under paragraph (a) of this section, the State must--
    (1) Establish and use technical criteria to determine if the 
assessment--
    (i) Is aligned with the challenging State academic standards;
    (ii) Addresses the depth and breadth of those standards;
    (iii) Is equivalent to or more rigorous than the statewide 
assessments under Sec.  200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as 
applicable, with respect to--
    (A) The coverage of academic content;
    (B) The difficulty of the assessment;
    (C) The overall quality of the assessment; and
    (D) Any other aspects of the assessment that the State may 
establish in its technical criteria;
    (iv) Meets all requirements under Sec.  200.2(b), except for Sec.  
200.2(b)(1), and ensures that all high school students in the LEA are 
assessed consistent with Sec. Sec.  200.5(a) and 200.6; and
    (v) Produces valid and reliable data on student academic 
achievement with respect to all high school students and each subgroup 
of high school students in the LEA that--
    (A) Are comparable to student academic achievement data for all 
high school students and each subgroup of high school students produced 
by the statewide assessment;
    (B) Are expressed in terms consistent with the State's academic 
achievement standards under section 1111(b)(1)(A) of the Act; and
    (C) Provide unbiased, rational, and consistent differentiation 
among schools within the State for the purpose of the State-determined 
accountability system under section 1111(c) of the Act;
    (2) Before approving any nationally recognized high school academic 
assessment for use by an LEA in the State--
    (i) Ensure that the use of appropriate accommodations under Sec.  
200.6(b) and (f) does not deny a student with a disability or an 
English learner--
    (A) The opportunity to participate in the assessment; and
    (B) Any of the benefits from participation in the assessment that 
are afforded to students without disabilities or students who are not 
English learners; and
    (ii) Submit evidence to the Secretary in accordance with the 
requirements for peer review under section 1111(a)(4) of the Act 
demonstrating that any such assessment meets the requirements of this 
section; and
    (3) Approve an LEA's request to use a locally selected, nationally 
recognized high school academic assessment that meets the requirements 
of this section.
    (c) LEA applications. (1) Before an LEA requests approval from the 
State to use a locally selected, nationally recognized high school 
academic assessment, the LEA must--
    (i) Notify all parents of high school students it serves--
    (A) That the LEA intends to request approval from the State to use 
a locally selected, nationally recognized high school academic 
assessment in place of the statewide academic assessment under Sec.  
200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as applicable;
    (B) Of how parents may provide meaningful input regarding the LEA's 
request; and
    (C) Of any effect of such request on the instructional program in 
the LEA; and
    (ii) Provide an opportunity for meaningful consultation to all 
public charter schools whose students would be included in such 
assessments.
    (2) As part of requesting approval to use a locally selected, 
nationally recognized high school academic assessment, an LEA must--
    (i) Update its LEA plan under section 1112 or section 8305 of the 
Act, including to describe how the request was developed consistent 
with all requirements for consultation under sections 1112 and 8538 of 
the Act; and
    (ii) If the LEA is a charter school under State law, provide an 
assurance that the use of the assessment is consistent with State 
charter school law and it has consulted with the authorized public 
chartering agency.
    (3) Upon approval, the LEA must notify all parents of high school 
students it serves that the LEA received approval and will use such 
locally selected, nationally recognized high school academic assessment 
instead of the statewide academic assessment under Sec.  
200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as applicable.
    (4) In each subsequent year following approval in which the LEA 
elects to administer a locally selected, nationally recognized high 
school academic assessment, the LEA must notify--
    (i) The State of its intention to continue administering such 
assessment; and
    (ii) Parents of which assessment the LEA will administer to 
students to meet the requirements of Sec.  200.5(a)(1)(i)(B) and 
(a)(1)(ii)(C), as applicable, at the beginning of the school year.
    (5) The notices to parents under this paragraph (c) must be 
consistent with Sec.  200.2(e).
    (d) Definition. ``Nationally recognized high school academic 
assessment'' means an assessment of high school students' knowledge and 
skills that is administered in multiple States and is recognized by 
institutions of higher education in those or other States for the 
purposes of entrance or placement into courses in postsecondary 
education or training programs.

(Authority: 20 U.S.C. 6311(b)(2)(H), 6312(a), 7483, 7918; 29 U.S.C. 
794; 42 U.S.C. 2000d-1, 12132)



[[Page 44951]]


0
4. Section 200.4 is amended:
0
a. In paragraph (b)(2)(ii)(B), by removing the term ``section 
1111(b)(2)(C)(v)'' and adding in its place the term ``section 
1111(c)(2)''.
0
b. In paragraph (b)(2)(ii)(C), by removing the words ``LEAs and''.
0
c. In paragraph (b)(3), by removing the words ``determine whether the 
State has made adequate yearly progress'' and adding in their place the 
words ``make accountability determinations under section 1111(c) of the 
Act''.
0
d. By revising the authority citation at the end of the section.
    The revision reads as follows:


Sec.  200.4  State law exception.

* * * * *

 (Authority: 20 U.S.C. 6311(b)(2)(E))


0
5. Section 200.5 is revised to read as follows:


Sec.  200.5  Assessment administration.

    (a) Frequency. (1) A State must administer the assessments required 
under Sec.  200.2 annually as follows:
    (i) With respect to both the reading/language arts and mathematics 
assessments--
    (A) In each of grades 3 through 8; and
    (B) At least once in grades 9 through 12.
    (ii) With respect to science assessments, not less than one time 
during each of--
    (A) Grades 3 through 5;
    (B) Grades 6 through 9; and
    (C) Grades 10 through 12.
    (2) With respect to any other subject chosen by a State, the State 
may administer the assessments at its discretion.
    (b) Middle school mathematics exception. A State that administers 
an end-of-course mathematics assessment to meet the requirements under 
paragraph (a)(1)(i)(B) of this section may exempt an eighth-grade 
student from the mathematics assessment typically administered in 
eighth grade under paragraph (a)(1)(i)(A) of this section if--
    (1) The student instead takes the end-of-course mathematics 
assessment the State administers to high school students under 
paragraph (a)(1)(i)(B) of this section;
    (2) The student's performance on the high school assessment is used 
in the year in which the student takes the assessment for purposes of 
measuring academic achievement under section 1111(c)(4)(B)(i) of the 
Act and participation in assessments under section 1111(c)(4)(E) of the 
Act;
    (3) In high school--
    (i) The student takes a State-administered end-of-course assessment 
or nationally recognized high school academic assessment as defined in 
Sec.  200.3(d) in mathematics that--
    (A) Is more advanced than the assessment the State administers 
under paragraph (a)(1)(i)(B) of this section; and
    (B) Provides for appropriate accommodations consistent with Sec.  
200.6; and
    (ii) The student's performance on the more advanced mathematics 
assessment is used for purposes of measuring academic achievement under 
section 1111(c)(4)(B)(i) of the Act and participation in assessments 
under section 1111(c)(4)(E) of the Act; and
    (4) The State describes in its State plan, with regard to this 
exception, its strategies to provide all students in the State the 
opportunity to be prepared for and to take advanced mathematics 
coursework in middle school.

(Authority: 20 U.S.C. 6311(b)(2)(B)(v) and (b)(2)(C))


0
6. Section 200.6 is revised to read as follows:


Sec.  200.6  Inclusion of all students.

    A State's academic assessment system required under Sec.  200.2 
must provide for the participation of all students in the grades 
assessed under Sec.  200.5(a) in accordance with this section.
    (a) Students with disabilities in general. (1) A State must include 
students with disabilities in all assessments under section 1111(b)(2) 
of the Act, with appropriate accommodations consistent with paragraphs 
(b), (f)(1), and (f)(3)(iv) of this section. For purposes of this 
section, students with disabilities, collectively, are--
    (i) All children with disabilities as defined under section 602(3) 
of the IDEA;
    (ii) Students with the most significant cognitive disabilities who 
are identified from among the students in paragraph (a)(1)(i) of this 
section; and
    (iii) Students with disabilities covered under other acts, 
including--
    (A) Section 504 of the Rehabilitation Act of 1973, as amended; and
    (B) Title II of the ADA.
    (2)(i) A student with a disability under paragraph (a)(1)(i) or 
(iii) of this section must be assessed with an assessment aligned with 
the challenging State academic standards for the grade in which the 
student is enrolled.
    (ii) If a State has adopted alternate academic achievement 
standards permitted under section 1111(b)(1)(E) of the Act for students 
with the most significant cognitive disabilities, a student with the 
most significant cognitive disabilities under paragraph (a)(1)(ii) of 
this section may be assessed with--
    (A) The general assessment under paragraph (a)(2)(i) of this 
section; or
    (B) An alternate assessment under paragraph (c) of this section 
aligned with the challenging State academic content standards for the 
grade in which the student is enrolled and the State's alternate 
academic achievement standards.
    (b) Appropriate accommodations. (1) A State's academic assessment 
system must provide, for each student with a disability under paragraph 
(a) of this section, the appropriate accommodations, such as 
interoperability with, and ability to use, assistive technology devices 
consistent with nationally recognized accessibility standards, that are 
necessary to measure the academic achievement of the student consistent 
with paragraph (a)(2) of this section, as determined by--
    (i) For each student under paragraph (a)(1)(i) and (ii) of this 
section, the student's IEP team;
    (ii) For each student under paragraph (a)(1)(iii)(A) of this 
section, the student's placement team; or
    (iii) For each student under paragraph (a)(1)(iii)(B) of this 
section, the individual or team designated by the LEA to make these 
decisions.
    (2) A State must--
    (i) Develop, disseminate information to, at a minimum, schools and 
parents, and promote the use of appropriate accommodations to ensure 
that all students with disabilities are able to participate in academic 
instruction and assessments consistent with paragraph (a)(2) of this 
section; and
    (ii) Ensure that general and special education teachers, 
paraprofessionals, specialized instructional support personnel, and 
other appropriate staff receive necessary training to administer 
assessments and know how to administer assessments, including, as 
necessary, alternate assessments under paragraphs (c) and (f)(3)(v) of 
this section, and know how to make use of appropriate accommodations 
during assessment for all students with disabilities.
    (3) A State must ensure that the use of appropriate accommodations 
under this paragraph (b) does not deny a student with a disability--
    (i) The opportunity to participate in the assessment; and
    (ii) Any of the benefits from participation in the assessment that 
are afforded to students without disabilities.
    (c) Alternate assessments aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. (1) If a

[[Page 44952]]

State has adopted alternate academic achievement standards permitted 
under section 1111(b)(1)(E) of the Act for students with the most 
significant cognitive disabilities, the State must measure the 
achievement of those students with an alternate assessment that--
    (i) Is aligned with the challenging State academic content 
standards under section 1111(b)(1) of the Act for the grade in which 
the student is enrolled;
    (ii) Yields results for those students relative to the alternate 
academic achievement standards; and
    (iii) At the State's discretion, provides valid and reliable 
measures of student growth at all alternate academic achievement levels 
to help ensure that the assessment results can be used to improve 
student instruction.
    (2) For each subject for which assessments are administered under 
Sec.  200.2(a)(1), the total number of students assessed in that 
subject using an alternate assessment aligned with alternate academic 
achievement standards under paragraph (c)(1) of this section may not 
exceed 1.0 percent of the total number of students in the State who are 
assessed in that subject.
    (3) A State must--
    (i) Not prohibit an LEA from assessing more than 1.0 percent of its 
assessed students in a given subject with an alternate assessment 
aligned with alternate academic achievement standards;
    (ii) Require that an LEA submit information justifying the need of 
an LEA to assess more than 1.0 percent of its assessed students in an 
assessed subject with such an alternate assessment;
    (iii) Provide appropriate oversight, as determined by the State, of 
an LEA that is required to submit information to the State; and
    (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.
    (4) If a State anticipates that it will exceed the cap under 
paragraph (c)(2) of this section with respect to any subject for which 
assessments are administered under Sec.  200.2(a)(1) in any school 
year, the State may request that the Secretary waive the cap for the 
relevant subject, pursuant to section 8401 of the Act, for one year. 
Such request must--
    (i) Be submitted at least 90 days prior to the start of the State's 
first testing window;
    (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 Sec.  
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 Sec.  200.2(a)(1) in that school year using an 
alternate assessment aligned with alternate academic achievement 
standards, and any other LEA that the State determines will 
significantly contribute to the State's exceeding the cap under 
paragraph (c)(2) of this section--
    (A) Followed each of the State's guidelines under paragraph (d) of 
this section, including criteria in paragraph (d)(1)(i) through (iii) 
except paragraph (d)(6);
    (B) Will not significantly increase, from the prior year, the 
extent to which the LEA assessed more than 1.0 percent of students in 
any subject for which assessments were administered under Sec.  
200.2(a)(1) in that school year using an alternate assessment aligned 
with alternate academic achievement standards unless the LEA has 
demonstrated to the State a higher prevalence of students with the most 
significant cognitive disabilities than were enrolled in assessed 
grades in the prior year; and
    (C) Will address any disproportionality in the number and 
percentage of students in any particular 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) of this 
section, so that the State meets the cap in paragraph (c)(2) of this 
section in each subject for which assessments are administered under 
Sec.  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 subject in a 
school year using an alternate assessment aligned with alternate 
academic achievement standards, and any other LEA that the State 
determines will significantly contribute to the State's exceeding the 
cap under paragraph (c)(2) of this section, 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 number and 
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; 
and
    (v) If the State is requesting to extend a waiver for an additional 
year, meet the requirements in paragraph (c)(4)(i) through (iv) and 
demonstrate substantial progress towards achieving each component of 
the prior year's plan and timeline required under paragraph (c)(4)(iv) 
of this section.
    (5) A State must report separately to the Secretary, under section 
1111(h)(5) of the Act, the number and percentage of children with 
disabilities under paragraph (a)(1)(i) and (ii) of this section 
taking--
    (i) General assessments described in Sec.  200.2;
    (ii) General assessments with accommodations; and
    (iii) Alternate assessments aligned with alternate academic 
achievement standards under this paragraph (c).
    (6) A State may not develop, or implement for use under this part, 
any alternate or modified academic achievement standards that are not 
alternate academic achievement standards for students with the most 
significant cognitive disabilities that meet the requirements of 
section 1111(b)(1)(E) of the Act.
    (7) For students with the most significant cognitive disabilities, 
a computer-adaptive alternate assessment aligned with alternate 
academic achievement standards must--
    (i) Assess a student's academic achievement based on the 
challenging

[[Page 44953]]

State academic content standards for the grade in which the student is 
enrolled;
    (ii) Meet the requirements for alternate assessments aligned with 
alternate academic achievement standards under this paragraph (c); and
    (iii) Meet the requirements in Sec.  200.2, except that the 
alternate assessment need not measure a student's academic proficiency 
based on the challenging State academic achievement standards for the 
grade in which the student is enrolled and growth toward those 
standards.
    (d) State guidelines. If a State adopts alternate academic 
achievement standards for students with the most significant cognitive 
disabilities and administers an alternate assessment aligned with those 
standards, the State must--
    (1) Establish, consistent with section 612(a)(16)(C) of the IDEA, 
and monitor implementation of clear and appropriate guidelines for IEP 
teams to apply in determining, on a case-by-case basis, which students 
with the most significant cognitive disabilities will be assessed based 
on alternate academic achievement standards. Such guidelines must 
include a State definition of ``students with the most significant 
cognitive disabilities'' that would address factors related to 
cognitive functioning and adaptive behavior, such that--
    (i) The identification of a student as having a particular 
disability as defined in the IDEA must not determine whether a student 
is a student with the most significant cognitive disabilities;
    (ii) A student with the most significant cognitive disabilities 
must not be identified solely on the basis of the student's previous 
low academic achievement, or status as an English learner, or the 
student's previous need for accommodations to participate in general 
State or districtwide assessments; and
    (iii) Students with the most significant cognitive disabilities 
require extensive, direct individualized instruction and substantial 
supports to achieve measurable gains on the challenging State academic 
content standards for the grade in which the student is enrolled;
    (2) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on alternate academic achievement standards, including 
any effects of State and local policies on a student's education 
resulting from taking an alternate assessment aligned with alternate 
academic achievement standards, such as how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma;
    (3) Ensure that parents of students selected to be assessed using 
an alternate assessment aligned with alternate academic achievement 
standards under the State's guidelines in this paragraph (d) are 
informed that their child's achievement will be measured based on 
alternate academic achievement standards, and how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma consistent with 
Sec.  200.2(e);
    (4) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment aligned with alternate 
academic achievement standards from attempting to complete the 
requirements for a regular high school diploma;
    (5) Promote, consistent with requirements under the IDEA, the 
involvement and progress of students with the most significant 
cognitive disabilities in the general education curriculum;
    (6) Ensure that it describes in its State plan the steps it has 
taken to incorporate the principles of universal design for learning, 
to the extent feasible, in any alternate assessments aligned with 
alternate academic achievement standards that the State administers; 
and
    (7) Develop, disseminate information on, and promote the use of 
appropriate accommodations consistent with paragraph (b) of this 
section to ensure that a student with significant cognitive 
disabilities who does not meet the criteria in paragraph (a)(1)(ii) of 
this section--
    (i) Participates in academic instruction and assessments for the 
grade level in which the student is enrolled; and
    (ii) Is tested based on challenging State academic standards for 
the grade level in which the student is enrolled.
    (e) Definitions related to students with disabilities. Consistent 
with 34 CFR 300.5, ``assistive technology device'' means any item, 
piece of equipment, or product system, whether acquired commercially 
off the shelf, modified, or customized, that is used to increase, 
maintain, or improve the functional capabilities of a child with a 
disability. The term does not include a medical device that is 
surgically implanted, or the replacement of such device.
    (f) English learners. A State must include English learners in its 
academic assessments required under Sec.  200.2 as follows:
    (1) In general. (i) Consistent with Sec.  200.2 and paragraph 
(f)(2) and (f)(4) of this section, a State must assess English learners 
in a valid and reliable manner that includes--
    (A) Appropriate accommodations with respect to a student's status 
as an English learner and, if applicable, the student's status under 
paragraph (a) of this section; and
    (B) To the extent practicable, assessments in the language and form 
most likely to yield accurate and reliable information on what those 
students know and can do to determine the students' mastery of skills 
in academic content areas until the students have achieved English 
language proficiency.
    (ii) To meet the requirements under paragraph (f)(1)(i) of this 
section, the State must, in its State plan--
    (A) Ensure that the use of appropriate accommodations under this 
paragraph (f) and, if applicable, under paragraph (b) of this section 
does not deny an English learner--
    (1) The opportunity to participate in the assessment; and
    (2) Any of the benefits from participation in the assessment that 
are afforded to students who are not English learners;
    (B) Provide its definition for ``languages other than English that 
are present to a significant extent in the participating student 
population,'' consistent with paragraph (f)(1)(iv) of this section, and 
identify the specific languages that meet that definition;
    (C) Identify any existing assessments in languages other than 
English, and specify for which grades and content areas those 
assessments are available;
    (D) Indicate the languages other than English that are present to a 
significant extent in the participating student population, as defined 
by the State, for which yearly student academic assessments are not 
available and are needed; and
    (E) Describe how it will make every effort to develop assessments, 
at a minimum, in languages other than English that are present to a 
significant extent in the participating student population including by 
providing--
    (1) The State's plan and timeline for developing such assessments, 
including a description of how it met the requirements of paragraph 
(f)(1)(iv) of this section;
    (2) A description of the process the State used to gather 
meaningful input on assessments in languages other than English, 
collect and respond to public comment, and consult with educators,

[[Page 44954]]

parents and families of English learners, and other stakeholders; and
    (3) As applicable, an explanation of the reasons the State has not 
been able to complete the development of such assessments despite 
making every effort.
    (iii) A State may request assistance from the Secretary in 
identifying linguistically accessible academic assessments that are 
needed.
    (iv) In determining which languages other than English are present 
to a significant extent in a State's participating student population, 
a State must, at a minimum--
    (A) Ensure that its definition of ``languages other than English 
that are present to a significant extent in the participating student 
population'' encompasses at least the most populous language other than 
English spoken by the State's participating student population;
    (B) Consider languages other than English that are spoken by 
distinct populations of English learners, including English learners 
who are migratory, English learners who were not born in the United 
States, and English learners who are Native Americans; and
    (C) Consider languages other than English that are spoken by a 
significant portion of the participating student population in one or 
more of a State's LEAs as well as languages spoken by a significant 
portion of the participating student population across grade levels.
    (2) Assessing reading/language arts in English. (i) A State must 
assess, using assessments written in English, the achievement of an 
English learner in meeting the State's reading/language arts academic 
standards if the student has attended schools in the United States, 
excluding Puerto Rico and, if applicable, students in Native American 
language schools or programs consistent with paragraph (g) of this 
section, for three or more consecutive years.
    (ii) An LEA may continue, for no more than two additional 
consecutive years, to assess an English learner under paragraph 
(f)(1)(i)(B) of this section if the LEA determines, on a case-by-case 
individual basis, that the student has not reached a level of English 
language proficiency sufficient to yield valid and reliable information 
on what the student knows and can do on reading/language arts 
assessments written in English.
    (iii) The requirements in paragraph (f)(2)(i) and (ii) of this 
section do not permit an exemption from participating in the State 
assessment system for English learners.
    (3) Assessing English proficiency. (i) Each State must--
    (A) Develop a uniform statewide assessment of English language 
proficiency, including reading, writing, speaking, and listening 
skills; and
    (B) Require each LEA to use such assessment to assess annually the 
English language proficiency, including reading, writing, speaking, and 
listening skills, of all English learners in schools served by the LEA.
    (ii) The assessment under paragraph (3)(i) of this section must be-
-
    (A) Aligned with the State's English language proficiency standards 
under section 1111(b)(1)(F) of the Act and provide coherent and timely 
information about each student's attainment of those standards, 
including information provided to parents consistent with Sec.  
200.2(e); and
    (B) Developed and used consistent with the requirements of Sec.  
200.2(b)(2), (b)(4), and (b)(5).
    (iii) If a State develops a computer-adaptive assessment to measure 
English language proficiency, the State must ensure that the computer-
adaptive assessment--
    (A) Assesses a student's language proficiency, which may include 
growth toward proficiency, in order to measure the student's 
acquisition of English; and
    (B) Meets the requirements for English language proficiency 
assessments in paragraph (f) of this section.
    (iv) A State must provide appropriate accommodations that are 
necessary to measure a student's English language proficiency relative 
to the State's English language proficiency standards under section 
1111(b)(1)(F) of the Act for each English learner covered under 
paragraph (a)(1)(i) or (iii) of this section.
    (v) A State must provide for an alternate English language 
proficiency assessment for each English learner covered under paragraph 
(a)(1)(ii) of this section who cannot participate in the assessment 
under paragraph (f)(3)(i) of this section even with appropriate 
accommodations.
    (4) Recently arrived English learners. (i)(A) A State may exempt a 
recently arrived English learner, as defined in paragraph (f)(5)(i) of 
this section, from one administration of the State's reading/language 
arts assessment under Sec.  200.2.
    (B) If the State does not assess a recently arrived English learner 
on the State's reading/language arts assessment, the State must count 
the year in which the assessment would have been administered as the 
first of the three years in which the student may take the State's 
reading/language arts assessment in a native language consistent with 
paragraph (f)(2)(i) of this section.
    (C) The State and its LEAs must report on State and local report 
cards required under section 1111(h) of the Act the number of recently 
arrived English learners who are not assessed on the State's reading/
language arts assessment.
    (D) Nothing in this paragraph (f) relieves an LEA from its 
responsibility under applicable law to provide recently arrived English 
learners with appropriate instruction to enable them to attain English 
language proficiency as well as grade-level content knowledge in 
reading/language arts, mathematics, and science.
    (ii) A State must assess the English language proficiency of a 
recently arrived English learner pursuant to paragraph (f)(3) of this 
section.
    (iii) A State must assess the mathematics and science achievement 
of a recently arrived English learner pursuant to Sec.  200.2 with the 
frequency described in Sec.  200.5(a).
    (5) Definitions related to English learners. (i) A ``recently 
arrived English learner'' is an English learner who has been enrolled 
in schools in the United States for less than twelve months.
    (ii) The phrase ``schools in the United States'' includes only 
schools in the 50 States and the District of Columbia.
    (g) Students in Native American language schools or programs. (1) 
Except as provided in paragraph (g)(2) of this section, a State is not 
required to assess, using assessments written in English, student 
achievement in meeting the challenging State academic standards in 
reading/language arts for a student who is enrolled in a school or 
program that provides instruction primarily in a Native American 
language if--
    (i) The State provides an assessment of reading/language arts in 
the Native American language to all students in the school or program, 
consistent with the requirements of Sec.  200.2;
    (ii) The State submits the assessment of reading/language arts in 
the Native American language for peer review as part of its State 
assessment system, consistent with Sec.  200.2(d); and
    (iii) For an English learner, as defined in section 8101(2)(C)(ii) 
of the Act, the State continues to assess the English language 
proficiency of such English learner, using the annual English language 
proficiency assessment required under Sec.  200.6(f)(3), and provides 
appropriate services to enable him or her to attain proficiency in 
English.
    (2) Notwithstanding Sec.  200.6(f)(2), the State must assess under 
Sec.  200.5(a)(1)(i)(A), using assessments written in English by no 
later than the

[[Page 44955]]

end of the eighth grade, the achievement of each student enrolled in 
such a school or program in meeting the challenging State academic 
standards in reading/language arts.
    (h) Definition. For the purpose of this section, ``Native 
American'' means ``Indian'' as defined in section 6151 of the Act, 
which includes Alaska Native and members of federally recognized or 
state-recognized tribes; Native Hawaiian; and Native American Pacific 
Islander.
    (i) Highly mobile students. The State must include in its 
assessment system the following highly mobile student populations as 
defined in Sec.  200.2(b)(11):
    (1) Students with status as a migratory child.
    (2) Students with status as a homeless child or youth.
    (3) Students with status as a child in foster care.
    (4) Students with status as a student with a parent who is a member 
of the armed forces on active duty.

(Authority: 20 U.S.C. 1400 et seq. and 6311(b)(2); 25 U.S.C. 2902; 
29 U.S.C. 794; 42 U.S.C. 2000d-1, 11434a, and 12132; 34 CFR 300.5)


0
7. Section 200.8 is amended:
0
a. In paragraph (a)(2)(i), by adding the word ``and'' following the 
semicolon.
0
b. In paragraph (a)(2)(ii), by removing the words ``including an 
alternative format (e.g., Braille or large print) upon request; and'' 
and adding in their place the words ``consistent with Sec.  200.2.''
0
c. By removing paragraph (a)(2)(iii).
0
d. In paragraph (b)(1), by removing the term ``Sec.  200.2(b)(4)'' and 
adding in its place the term ``Sec.  200.2(b)(13)''.
0
e. By revising the authority citation at the end of the section.
    The revision reads as follows:


Sec.  200.8  Assessment reports.

* * * * *

(Authority: 20 U.S.C. 6311(b)(2)(B)(x) and (xii))


0
8. Section 200.9 is amended:
0
a. By revising paragraph (a).
0
b. In paragraph (b), by removing the term ``section 6113(a)(2)'' and 
adding in its place the term ``section 1002(b)''.
0
c. By revising the authority citation at the end of the section.
    The revisions read as follows:


Sec.  200.9  Deferral of assessments.

    (a) A State may defer the start or suspend the administration of 
the assessments required under Sec.  200.2 for one year for each year 
for which the amount appropriated for State assessment grants under 
section 1002(b) of the Act is less than $369,100,000.
* * * * *

(Authority: 20 U.S.C. 6302(b), 6311(b)(2)(I), 6363(a))


[FR Doc. 2016-16124 Filed 7-6-16; 4:15 pm]
 BILLING CODE 4000-01-P