81_FR_45059 81 FR 44927 - Title I-Improving the Academic Achievement of the Disadvantaged-Academic Assessments

81 FR 44927 - Title I-Improving the Academic Achievement of the Disadvantaged-Academic Assessments

DEPARTMENT OF EDUCATION

Federal Register Volume 81, Issue 132 (July 11, 2016)

Page Range44927-44955
FR Document2016-16124

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.

Federal Register, Volume 81 Issue 132 (Monday, July 11, 2016)
[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Proposed Rules]
[Pages 44927-44955]
From the Federal Register Online  [www.thefederalregister.org]
[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

[[Page 44928]]


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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.

[[Page 44929]]

     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,

[[Page 44930]]

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.
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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.
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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.thefederalregister.org/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



                                                                                                         Vol. 81                           Monday,
                                                                                                         No. 132                           July 11, 2016




                                                                                                         Part II


                                                                                                         Department of Education
                                                                                                         34 CFR Part 200
                                                                                                         Title I—Improving the Academic Achievement of the Disadvantaged—
                                                                                                         Academic Assessments; Proposed Rule
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                                                   44928                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   DEPARTMENT OF EDUCATION                                  Education, 400 Maryland Avenue SW.,                   schools as they implement the ESEA
                                                                                                            Room 3W107, Washington, DC 20202.                     requirements regarding statewide
                                                   34 CFR Part 200                                          Telephone: (202) 401–1960 or by email:                assessment systems, and to ensure that
                                                   RIN 1810–AB32                                            jessica.mckinney@ed.gov.                              key requirements in title I of the ESEA
                                                                                                               If you use a telecommunications                    are implemented in a manner consistent
                                                   [Docket ID ED–2016–OESE–0053]                            device for the deaf (TDD) or a text                   with the purposes of the law—to
                                                                                                            telephone (TTY), call the Federal Relay               provide all children significant
                                                   Title I—Improving the Academic                           Service (FRS), toll free, at 1–800–877–               opportunity to receive a fair, equitable,
                                                   Achievement of the Disadvantaged—                        8339.                                                 and high-quality education, and to close
                                                   Academic Assessments                                                                                           educational achievement gaps.
                                                                                                            SUPPLEMENTARY INFORMATION:
                                                   AGENCY: Office of Elementary and                                                                               Consistent with section 1601(b) of the
                                                   Secondary Education, Department of                       Executive Summary                                     ESEA, the proposed regulations were
                                                   Education.                                                  Purpose of This Regulatory Action:                 subject to a negotiated rulemaking
                                                   ACTION: Notice of proposed rulemaking.                   On December 10, 2015, President Barack                process.
                                                                                                            Obama signed the ESSA into law. The                     Summary of the Major Provisions of
                                                   SUMMARY:   The Secretary proposes to                     ESSA reauthorizes the ESEA, which                     This Regulatory Action: As discussed in
                                                   amend the regulations governing                                                                                greater depth in the Significant
                                                                                                            provides Federal funds to improve
                                                   programs administered under title I of                                                                         Proposed Regulations section of this
                                                                                                            elementary and secondary education in
                                                   the Elementary and Secondary                                                                                   document, the proposed regulations
                                                                                                            the Nation’s public schools. The ESSA
                                                   Education Act of 1965, as amended                                                                              would:
                                                                                                            builds on the ESEA’s legacy as a civil                  • Update requirements for statewide
                                                   (ESEA). The proposed regulations                         rights law and seeks to ensure every
                                                   would implement recent changes to the                                                                          assessment systems under section
                                                                                                            child, regardless of race, socioeconomic              1111(b)(2) of the ESEA, including
                                                   assessment requirements of title I of the                status, disability, English proficiency,
                                                   ESEA made by the Every Student                                                                                 requirements regarding the validity,
                                                                                                            background, or residence, has an equal                reliability, and accessibility of
                                                   Succeeds Act (ESSA). Unless otherwise                    opportunity to obtain a high-quality
                                                   specified, references to the ESEA mean                                                                         assessments required under title I, part
                                                                                                            education. Though the reauthorization                 A and provisions regarding computer-
                                                   the ESEA, as amended by the ESSA.                        made significant changes to the ESEA                  adaptive assessments.
                                                   DATES: We must receive your comments                     for the first time since the ESEA was                   • Establish requirements for a State to
                                                   on or before September 9, 2016.                          reauthorized through the No Child Left                review and approve assessments if the
                                                   ADDRESSES: Submit your comments                          Behind Act of 2001 (NCLB), including                  State permits LEAs to administer a
                                                   through the Federal eRulemaking Portal                   significant changes to title I, it made               locally selected, nationally recognized
                                                   or via postal mail, commercial delivery,                 limited changes to the assessment                     high school academic assessment in
                                                   or hand delivery. We will not accept                     provisions of part A of title I. In                   each of reading/language arts,
                                                   comments submitted by fax or by email                    particular, the ESSA added new                        mathematics, or science consistent with
                                                   or those submitted after the comment                     exceptions to allow a State to approve                section 1111(b)(2)(H) of the ESEA.
                                                   period. To ensure that we do not receive                 its local educational agencies (LEAs) to                • Establish requirements under
                                                   duplicate copies, please submit your                     administer a locally selected, nationally             section 1111(b)(2)(C) of the ESEA for a
                                                   comments only once. In addition, please                  recognized high school academic                       State that administers an end-of-course
                                                   include the Docket ID at the top of your                 assessment and, in line with President                mathematics assessment to exempt an
                                                   comments.                                                Obama’s Testing Action Plan to reduce                 eighth-grade student from the
                                                      • Federal eRulemaking Portal: Go to                   the burden of unnecessary testing, to                 mathematics assessment typically
                                                   www.regulations.gov to submit your                       allow a State to avoid double-testing                 administered in eighth grade if the
                                                   comments electronically. Information                     eighth graders taking advanced                        student instead takes the end-of-course
                                                   on using Regulations.gov, including                      mathematics coursework. The ESSA                      mathematics assessment the State
                                                   instructions for accessing agency                        also imposed a cap to limit to 1.0                    administers to high school students.
                                                   documents, submitting comments, and                      percent of the total student population                 • Establish requirements for alternate
                                                   viewing the docket, is available on the                  the number of students with the most                  assessments aligned with alternate
                                                   site under ‘‘How to use                                  significant cognitive disabilities to                 academic achievement standards under
                                                   Regulations.gov.’’                                       whom the State may administer an                      section 1111(b)(2)(D) of the ESEA for
                                                      • Postal Mail, Commercial Delivery,                   alternate assessment aligned with                     students with the most significant
                                                   or Hand Delivery: If you mail or deliver                 alternate academic achievement                        cognitive disabilities, including the
                                                   your comments about these proposed                       standards in each assessed subject area.              requirement to cap the number of
                                                   regulations, address them to Jessica                     The ESSA included special                             students who take such assessments at
                                                   McKinney, U.S. Department of                             considerations for computer-adaptive                  1.0 percent of all students assessed in
                                                   Education, 400 Maryland Avenue SW.,                      assessments. Finally, the ESSA                        each subject area in the State and the
                                                   Room 3W107, Washington, DC 20202.                        amended the provisions of the ESEA                    requirements a State would need to
                                                      Privacy Note: The Department’s                        related to assessing English learners in              meet if it requests a waiver from the
                                                   policy is to make all comments received                  their native language.                                Secretary to exceed such cap.
                                                   from members of the public available for                    We propose to amend §§ 200.2–200.6                   • Establish requirements for native
                                                   public viewing in their entirety on the
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                                                                                                            and §§ 200.8–200.9 of title 34 of the                 language assessments under section
                                                   Federal eRulemaking Portal at                            Code of Federal Regulations (CFR) in                  1111(b)(2)(F) of the ESEA, including
                                                   www.regulations.gov. Therefore,                          order to implement these statutory                    requirements for a State to determine
                                                   commenters should be careful to                          changes, as well as other key statutory               when languages other than English are
                                                   include in their comments only                           provisions, including those related to                present to a significant extent and to
                                                   information that they wish to make                       the assessment of English learners. We                make every effort to provide
                                                   publicly available.                                      are proposing these regulations to                    assessments in such languages and
                                                   FOR FURTHER INFORMATION CONTACT:                         provide clarity and support to State                  update other requirements related to
                                                   Jessica McKinney, U.S. Department of                     educational agencies (SEAs), LEAs, and                English learners.


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                            44929

                                                      • Establish requirements for                          further ways we could reduce potential                proposed regulations, the Secretary
                                                   computer-adaptive assessments                            costs or increase potential benefits                  wants to propose regulations related to
                                                   consistent with 1111(b)(2)(J) of the                     while preserving the effective and                    standards and assessments under
                                                   ESEA, including by clarifying the                        efficient administration of the                       section 1111(b)(1)–(2) of the ESEA, as
                                                   requirement that a State that uses such                  Department’s programs and activities.                 well as the requirement under section
                                                   assessments must report on student                          During and after the comment period,               1118(b) that funds under part A be used
                                                   academic achievement in the same way                     you may inspect all public comments                   to supplement, and not supplant, State
                                                   it would for any other annual statewide                  about these proposed regulations by                   and local funds, the Department must go
                                                   assessment used to meet the                              accessing Regulations.gov. You may also               through the negotiated rulemaking
                                                   requirements of title I, part A of the                   inspect the comments in person in                     process.
                                                   ESEA.                                                    3W107, 400 Maryland Ave. SW.,                           If the negotiated rulemaking
                                                      Please refer to the Significant                       Washington, DC, between 9:00 a.m. and                 committee reaches consensus on the
                                                   Proposed Regulations section of this                     4:30 p.m. Washington, DC time, Monday                 proposed regulations that go through the
                                                   preamble for a detailed discussion of the                through Friday of each week except                    negotiated rulemaking process, then the
                                                   major provisions contained in the                        Federal holidays. Please contact the                  proposed regulations that the
                                                   proposed regulations.                                    person listed under FOR FURTHER                       Department publishes must conform to
                                                      Costs and Benefits: The Department                    INFORMATION CONTACT.                                  such consensus agreements unless the
                                                   believes that the benefits of this                          Assistance to Individuals With                     Secretary reopens the process. Further
                                                   regulatory action would outweigh any                     Disabilities in Reviewing the                         information on the negotiated
                                                   associated costs to States and LEAs,                     Rulemaking Record: On request we will                 rulemaking process may be found at:
                                                   which would be financed with Federal                     provide an appropriate accommodation                  http://www2.ed.gov/policy/elsec/leg/
                                                   education funds. These benefits would                    or auxiliary aid to an individual with a              essa/index.html.
                                                   include the administration of                            disability who needs assistance to                      On February 4, 2016, the Department
                                                   assessments that produce valid and                       review the comments or other                          published a notice in the Federal
                                                   reliable information on the achievement                  documents in the public rulemaking                    Register (81 FR 5969) announcing its
                                                   of all students, including English                       record for these proposed regulations. If             intent to establish a negotiated
                                                   learners and students with disabilities.                 you want to schedule an appointment                   rulemaking committee to develop
                                                   States can then use this information to                  for this type of accommodation or                     proposed regulations to implement the
                                                   effectively measure school performance                   auxiliary aid, please contact the person              changes made to the ESEA by the ESSA.
                                                   and identify underperforming schools;                    listed under FOR FURTHER INFORMATION                  Specifically, we announced our intent
                                                   LEAs and schools can use it to inform                    CONTACT.                                              to establish a negotiating committee to:
                                                   and improve classroom instruction and                                                                            (1) Prepare proposed regulations that
                                                   student supports; and parents and other                  Background                                            would update existing assessment
                                                   stakeholders can use it to hold schools                  Public Participation                                  regulations to reflect changes to section
                                                   accountable for progress, ultimately                                                                           1111(b) of the ESEA, including:
                                                   leading to improved academic outcomes                       On December 22, 2015, the                            (i) Locally selected, nationally
                                                   and the closing of achievement gaps,                     Department published a request for                    recognized high school academic
                                                   consistent with the purpose of title I of                information in the Federal Register                   assessments, under section
                                                   the ESEA. In addition, the regulations                   soliciting advice and recommendations                 1111(b)(2)(H);
                                                   provide clarity for how States can avoid                 from the public on the implementation                   (ii) The exception for advanced
                                                   double testing and reduce time spent on                  of title I of the ESEA. We received 369               mathematics assessments in eighth
                                                   potentially redundant testing. Please                    comments. We also held two public                     grade, under section 1111(b)(2)(C);
                                                   refer to the Regulatory Impact Analysis                  meetings with stakeholders—one on                       (iii) Inclusion of students with
                                                   section of this document for a more                      January 11, 2016, in Washington, DC                   disabilities in academic assessments,
                                                   detailed discussion of costs and                         and one on January 19, 2016, in Los                   including alternate assessments aligned
                                                   benefits. Consistent with Executive                      Angeles, California—at which we heard                 with alternate academic achievement
                                                   Order 12866, the Secretary has                           from over 100 speakers regarding the                  standards for students with the most
                                                   determined that this action is significant               development of regulations, guidance,                 significant cognitive disabilities, subject
                                                   and, thus, is subject to review by the                   and technical assistance related to the               to a cap of 1.0 percent of all students in
                                                   Office of Management and Budget under                    implementation of title I. In addition,               a State assessed in a subject;
                                                   the Executive order.                                     Department staff have held more than                    (iv) Inclusion of English learners in
                                                      Invitation to Comment: We invite you                  100 meetings with education                           academic assessments and English
                                                   to submit comments regarding these                       stakeholders and leaders across the                   language proficiency assessments; and
                                                   proposed regulations. To ensure that                     country to hear about areas of interest                 (v) Computer-adaptive assessments.
                                                   your comments have maximum effect in                     and concern regarding implementation                    (2) Prepare proposed regulations
                                                   developing the final regulations, we                     of the new law.                                       related to the requirement under section
                                                   urge you to identify clearly the specific                                                                      1118(b) of the ESEA that title I, part A
                                                                                                            Negotiated Rulemaking
                                                   section or sections of the proposed                                                                            funds be used to supplement, and not
                                                   regulations that each of your comments                      Section 1601(b) of the ESEA requires               supplant, State and local funds,
                                                   addresses and to arrange your comments                   the Secretary, before publishing                      specifically:
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                                                   in the same order as the proposed                        proposed regulations for programs                       (i) Regarding the methodology an LEA
                                                   regulations.                                             authorized by title I of the ESEA, to                 uses to allocate State and local funds to
                                                      We invite you to assist us in                         obtain advice and recommendations                     each title I school to ensure compliance
                                                   complying with the specific                              from stakeholders involved in the                     with the supplement not supplant
                                                   requirements of Executive Orders 12866                   implementation of title I programs.                   requirement; and
                                                   and 13563 and their overall requirement                  ESEA further requires that if, after                    (ii) The timeline for compliance.
                                                   of reducing regulatory burden that                       obtaining advice and recommendations                    The negotiating committee met in
                                                   might result from these proposed                         from individuals and representatives of               three sessions to develop proposed
                                                   regulations. Please let us know of any                   groups involved in, or affected by, the               regulations: Session 1, March 21–23,


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                                                   44930                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   2016; session 2, April 6–8, 2016; and                    A of the ESEA. We discuss substantive                 assessments that allow parents,
                                                   session 3, April 18–19, 2016. This                       issues under the sections of the                      teachers, principals, and other school
                                                   notice of proposed rulemaking (NPRM)                     proposed regulations to which they                    leaders to understand and address the
                                                   proposes regulations on assessments                      pertain. Generally, we do not address                 specific academic needs of students;
                                                   that were agreed upon by the                             proposed regulatory changes that are                     • In keeping with the requirements
                                                   negotiating committee.                                   technical or otherwise minor in effect,               for State report cards in section 1111(h),
                                                      The negotiating committee included                    including the changes to §§ 200.4, 200.8,             enable results to be disaggregated within
                                                   the following members:                                   and 200.9, where only technical edits                 each State, LEA, and school by each
                                                      Tony Evers and Marcus Cheeks,                         are proposed to ensure regulations                    major racial and ethnic group;
                                                   representing State administrators and                    conform to the ESEA, as amended by                    economically disadvantaged students
                                                   State boards of education.                               the ESSA.                                             compared to students who are not
                                                      Alvin Wilbanks, Derrick Chau, and                                                                           economically disadvantaged; children
                                                   Thomas Ahart (alternate), representing                   Section 200.2 State Responsibilities for              with disabilities compared to children
                                                   local administrators and local boards of                 Assessment                                            without disabilities; English proficiency
                                                   education.                                                  Statute: Under section 1111(b)(2) of               status; gender; migrant status; homeless
                                                      Aaron Payment and Leslie Harper                       the ESEA, each State must implement a                 children and youth; status as a child in
                                                   (alternate), representing tribal                         set of high-quality, yearly student                   foster care; and status as a student with
                                                   leadership.                                              academic assessments in, at a minimum,                a parent who is a member of the Armed
                                                      Lisa Mack and Rita Pin-Ahrens,                        reading/language arts, mathematics, and               Forces on active duty;
                                                   representing parents and students,                       science. Those assessments must meet a                   • Enable itemized score analyses to
                                                   including historically underserved                       number of requirements. In particular,                be produced and reported to LEAs and
                                                   students.                                                they must—                                            schools;
                                                      Audrey Jackson, Ryan Ruelas, and                         • Be the same academic assessments                    • Be developed, to the extent
                                                   Mary Cathryn Ricker (alternate),                         used to measure the academic                          practicable, using the principles of
                                                   representing teachers.                                   achievement of all public elementary                  universal design for learning; and
                                                      Lara Evangelista and Aqueelha James,                  and secondary school students in the                     • At a State’s discretion, be
                                                   representing principals.                                 State;                                                developed and administered as
                                                      Eric Parker and Richard Pohlman                          • Be aligned with the challenging                  computer-adaptive assessments.
                                                   (alternate), representing other school                   State academic standards and provide                     Current Regulations: Current § 200.2
                                                   leaders, including charter school                        coherent and timely information about                 governing State assessment systems
                                                   leaders.                                                 student attainment of those standards at              reflects provisions of section 1111(b)(3)
                                                      Lynn Goss and Regina Goings                           a student’s grade level;                              of the ESEA as in effect prior to the
                                                   (alternate), representing                                   • Be used for purposes for which the               ESSA (that is, under the NCLB). In large
                                                   paraprofessionals.                                       assessments are valid and reliable;                   part, those provisions remain the same
                                                      Delia Pompa, Ron Hager, Liz King                         • Be consistent with relevant,                     in section 1111(b)(2)(B) of the ESEA, as
                                                   (alternate), and Janel George (alternate),               nationally recognized professional and                amended by the ESSA. Accordingly,
                                                   representing the civil rights community,                 technical testing standards;                          proposed § 200.2 would retain the
                                                   including representatives of students                       • Objectively measure academic                     current regulations except where
                                                   with disabilities, English learners, and                 achievement, knowledge, and skills                    amendments are needed to reflect
                                                   other historically underserved students.                 without evaluating personal or family                 statutory changes made by the ESSA.
                                                      Kerri Briggs, representing the business               beliefs and attitudes;                                   Proposed Regulations: The proposed
                                                   community.                                                  • Be of adequate technical quality for             regulations would update the current
                                                      Patrick Rooney and Ary Amerikaner                     each purpose required under the ESEA;                 regulations to incorporate new statutory
                                                   (alternate), representing the U.S.                          • Involve multiple up-to-date                      provisions and clarify the basic
                                                   Department of Education.                                 measures of student academic                          responsibilities a State has in
                                                      The negotiating committee’s protocols                 achievement, including measures that                  developing and administering academic
                                                   provided that it would operate by                        assess higher-order thinking skills and               assessments. Where updates are not
                                                   consensus, which meant unanimous                         understanding, which may include                      needed, previously existing regulatory
                                                   agreement—that is, with no dissent by                    measures of student academic growth                   text would remain, such as in § 200.2(a),
                                                   any voting member. Under the                             and may be partially delivered in the                 which identifies the required subject
                                                   protocols, if the negotiating committee                  form of portfolios, projects, or extended             areas in which a State must administer
                                                   reached final consensus on regulatory                    performance tasks;                                    yearly student academic assessments.
                                                   language for either assessments under                       • Be administered to and include all                  The proposed regulations in
                                                   section 1111(b)(2) of the ESEA, or the                   public elementary and secondary school                § 200.2(b)(1)(i) would clarify exceptions
                                                   requirement under section 1118(b) that                   students in the State, including English              to the statutory requirement that
                                                   funds under title I, part A be used to                   learners and students with disabilities;              assessments be the same assessments
                                                   supplement, and not supplant, or both,                      • At a State’s discretion, be                      used for all students to account for new
                                                   the Department would use the                             administered through a single                         statutory provisions on: (1) Locally
                                                   consensus language in the proposed                       summative assessment or through                       selected, nationally recognized high
                                                   regulations.                                             multiple statewide interim assessments                school academic assessments; (2) an
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                                                      The negotiating committee reached                     during the course of the academic year                exception for eighth-grade students
                                                   consensus on all of the proposed                         that result in a single summative score               taking advanced mathematics courses;
                                                   regulations related to assessments under                 that provides valid, reliable, and                    (3) alternate assessments aligned with
                                                   section 1111(b)(2) of the ESEA.                          transparent information on student                    alternate academic achievement
                                                                                                            achievement and, at the State’s                       standards for students with the most
                                                   Significant Proposed Regulations                         discretion, growth;                                   significant cognitive disabilities; and (4)
                                                     The Secretary proposes new                                • Produce individual student                       States that receive demonstration
                                                   regulations in 34 CFR part 200 to                        interpretive, descriptive, and diagnostic             authority for an innovative assessment
                                                   implement programs under title I, part                   reports regarding achievement on the                  system under section 1204 of the ESEA.


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                           44931

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


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                                                   44932                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

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


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                           44933

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


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                                                   44934                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   responsibilities, particularly the                       academic assessment. This requirement                   Reasons: Proposed § 200.5(a) would
                                                   requirement that a student who receives                  is needed to ensure that a State is able              reflect and clarify statutory changes in
                                                   appropriate accommodations, as                           to administer assessments to all                      the frequency for administering State
                                                   determined by the student’s IEP team,                    students, including in the event that an              assessments, particularly in high school
                                                   consistent with State accommodation                      LEA elects to again use the statewide                 where reading/language arts and
                                                   guidelines for accommodations that do                    academic assessment after                             mathematics assessments may now be
                                                   not invalidate test scores, receive all                  administering a locally selected,                     administered once in grades 9–12,
                                                   benefits that taking such tests for the                  nationally recognized high school                     instead of grades 10–12. It also would
                                                   purpose of meeting the title I assessment                academic assessment.                                  make clear that the required
                                                   requirements offer other students.                          Proposed § 200.3(d) would define the               assessments must be administered
                                                      Proposed § 200.3(b)(2)(ii) would                      term ‘‘nationally recognized high school              annually according to the frequency
                                                   clarify the requirement that a State                     academic assessment.’’ The committee                  prescribed in the statute. The
                                                   submit, for peer review and approval by                  discussed this definition extensively,                negotiating committee briefly discussed
                                                   the Department, any locally selected,                    and numerous versions were                            these changes and agreed to these
                                                   nationally recognized high school                        considered, most of which were aimed                  updates.
                                                   academic assessment an LEA wishes to                     at broadening the definition to
                                                   administer. As the proposed regulations                                                                        Middle School Mathematics Exception
                                                                                                            accommodate a wider range of
                                                   would simply incorporate and restate                     assessments. Although there are many                    Statute: Under section 1111(b)(2)(C)
                                                   the statutory process for ensuring a                     assessments in use in multiple States,                of the ESEA, a State may exempt an
                                                   locally selected, nationally recognized                  the statute specifies that assessments                eighth-grade student from the
                                                   assessment is approved through peer                      eligible for selection by an LEA in lieu              mathematics assessment the State
                                                   review, the negotiating committee                        of the statewide assessment must be                   typically administers in eighth grade if
                                                   approved it without extensive debate.                    ‘‘nationally recognized.’’ The                        the student instead takes an end-of-
                                                      The proposed regulations in § 200.3(c)                negotiators discussed and ultimately                  course test the State typically
                                                   would offer additional detail regarding                  agreed that a reasonable indicator of                 administers in high school. The
                                                   the process by which an LEA would                        whether an assessment is nationally                   student’s performance on the high
                                                   apply to a State to use a locally selected,              recognized is whether multiple                        school assessment must be used in the
                                                   nationally recognized high school                        institutions of higher education or                   year in which the student takes the
                                                   academic assessment. Proposed                            postsecondary training programs                       assessment for purposes of measuring
                                                   § 200.3(c)(1)(i) would specify that an                   consider the results of such assessments              academic achievement and calculating
                                                   LEA must inform parents and solicit                      for entrance or placement into credit-                participation rate under section
                                                   their input prior to requesting approval                 bearing courses. In addition, we believe              1111(c)(4). In high school, the student
                                                   from the State so that such input may                    that such use of the assessment further               must take a mathematics assessment
                                                   inform the LEA’s request and the State’s                                                                       that is an end-of-course assessment or
                                                                                                            indicates that the assessment is high-
                                                   consideration of the LEA application.                                                                          another assessment that is more
                                                                                                            quality and provides important
                                                   Proposed § 200.3(c)(1)(ii) would clarify                                                                       advanced than the assessment the
                                                                                                            information about student readiness for
                                                   how public charter schools are included                                                                        student took in eighth grade, and the
                                                                                                            postsecondary education and training.
                                                   in an LEA’s consideration of whether to                                                                        student’s results must be used to
                                                   submit such a request, and proposed                      Section 200.5 Assessment                              measure academic achievement and
                                                   § 200.3(c)(2)(ii) would explain how a                    Administration                                        calculate participation rate for his or her
                                                   public charter school that is an LEA                                                                           high school.
                                                                                                            Frequency                                               Current Regulations: None.
                                                   must consult its authorized public
                                                   chartering agency. A negotiator                             Statute: Under section                               Proposed Regulations: Proposed
                                                   proposed these provisions to ensure that                 1111(b)(2)(B)(v) of the ESEA, a State                 § 200.5(b) would clarify the eighth-grade
                                                   the assessments applicable to charter                    must administer assessments annually                  mathematics exception in section
                                                   schools, whether those schools are part                  as follows: For reading/language arts                 1111(b)(2)(C) in several respects. First,
                                                   of an LEA or are an LEA in their own                     and mathematics assessments, the State                proposed § 200.5(b) would make clear
                                                   right, are consistent with existing                      must administer them in each of grades                that only a State that administers an
                                                   chartering agreements and State charter                  3 through 8 and at least once in grades               end-of-course mathematics assessment
                                                   school law. Additionally, proposed                       9 through 12; for science assessments,                to meet the high school assessment
                                                   § 200.3(c)(2)(i) would address the need                  the State must administer them not less               requirement may offer the exception to
                                                   to update an LEA’s title I plan to                       than one time in grades 3 through 5,                  eighth-grade students, consistent with
                                                   include, among other things, a                           grades 6 through 9, and grades 10                     section 1111(b)(2)(C)(i). The exception
                                                   description of how the request was                       through 12.                                           would not apply in a State that
                                                   developed consistent with the                               Current Regulations: Current § 200.5               administers a general mathematics
                                                   consultation requirements under                          describes the frequency with which                    assessment in, for example, eleventh
                                                   sections 1112 and 8538 of the ESEA                       reading/language arts, mathematics, and               grade. Second, proposed § 200.5(b)(3)(i)
                                                   when making a request. To effectively                    science assessments must be                           would permit a student who received
                                                   implement such a change in                               administered under the ESEA, as                       the exception in eighth grade to take in
                                                   assessments, it will be critical to                      amended by NCLB.                                      high school either a State-administered
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                                                   consider, as a community, all of the                        Proposed Regulations: Proposed                     end-of-course mathematics assessment
                                                   implications of the use of an assessment                 § 200.5(a) would describe the frequency               or a nationally recognized high school
                                                   other than the statewide academic                        with which reading/language arts,                     academic assessment in mathematics, as
                                                   assessment.                                              mathematics, and science assessments                  defined in proposed § 200.3(d), that is
                                                      Proposed § 200.3(c)(4)(i) would                       must be administered under section                    more advanced than the assessment the
                                                   require an LEA to indicate annually to                   1111(b)(2)(B)(v). It would also make                  student took in eighth grade. The more
                                                   the State whether it will continue to use                clear that a State must administer its                advanced high school assessment would
                                                   a previously approved, locally selected,                 assessments annually in the specified                 need to be submitted for peer review
                                                   nationally recognized high school                        grade spans.                                          under section 1111(a)(4) of the ESEA, as


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                           44935

                                                   required under proposed § 200.2(d).                      Section 200.6       Inclusion of All                  under proposed § 200.6(a)(2)(ii),
                                                   Finally, proposed § 200.5(b)(4) would                    Students                                              students with the most significant
                                                   require the State to describe in its title                                                                     cognitive disabilities may be assessed
                                                                                                            Students With Disabilities in General
                                                   I State plan, with regard to this                                                                              using either the general assessment or
                                                   exception, its strategies to provide all                    Statute: Under section 1111(b)(2)(B)(i)            an alternate assessment aligned with the
                                                   students in the State the opportunity to                 and (b)(2)(B)(vii)(I)–(II) of the ESEA, a             challenging State academic content
                                                   be prepared for and to take advanced                     State must include in its assessment                  standards for the grade in which the
                                                   mathematics coursework in middle                         system all public elementary and                      student is enrolled and with alternate
                                                   school.                                                  secondary school students, including                  academic achievement standards, if the
                                                      Reasons: The negotiating committee                    students with disabilities. The statute               State has adopted such alternate
                                                   discussed the eighth-grade mathematics                   clarifies that those students include                 academic achievement standards.
                                                   exception at length, acknowledging                       children with disabilities under the                     Reasons: The proposed regulations
                                                   early in the process that the statute                    Individuals with Disabilities Education               would reinforce the State’s statutory
                                                   limits this exception to those States that               Act (IDEA) and students with a                        obligation to include all students in
                                                   administer high school end-of-course                     disability who are provided                           statewide academic assessments used
                                                   tests. The negotiators supported                         accommodations under other acts.                      for accountability purposes under the
                                                   providing advanced mathematics                           Section 1111(b)(2)(D) authorizes a State              ESEA. The negotiating committee
                                                   coursework in middle school and easing                   to adopt alternate assessments aligned                discussed this section at length,
                                                   the burden of testing by relieving a                     with the State’s alternate academic                   rejecting proposals to either define
                                                   student who takes a high school-level                    achievement standards for students with               ‘‘students with disabilities’’ to include
                                                   mathematics course in eighth grade                       the most significant cognitive                        students in each of the categories listed
                                                                                                            disabilities. Otherwise, under section                in proposed § 200.6(a)(1)(i)–(iii) or to
                                                   from also having to take the State’s
                                                                                                            1111(b)(2)(B)(ii), students with                      refer to students eligible for
                                                   general eighth-grade mathematics
                                                                                                            disabilities, like students who do not                accommodations. Ultimately, to
                                                   assessment, but also proposed several
                                                                                                            have a disability, must be assessed                   improve clarity and avoid creating any
                                                   safeguards for inclusion in proposed
                                                                                                            based on academic achievement                         confusion in the field about student
                                                   § 200.5(b).
                                                                                                            standards for the grade in which a                    access to accommodations, the
                                                      In requiring the more advanced end-                   student is enrolled. All students with                negotiators agreed that the proposed
                                                   of-course high school mathematics                        disabilities, including those with the                regulations in § 200.6(a)(1) would
                                                   assessment either to be State-                           most significant cognitive disabilities, as           identify groups of students with
                                                   administered or nationally recognized,                   established under section                             disabilities—that is, those defined under
                                                   as defined in proposed § 200.3,                          1111(b)(1)(E)(i)(I), must be administered             the IDEA; those who may need alternate
                                                   proposed § 200.5(b)(3)(i) would clarify                  an assessment aligned with the State’s                assessments aligned with alternate
                                                   that the assessment may not be one                       challenging academic content standards                academic achievement standards; and
                                                   developed by a teacher to measure                        for the grade in which they are enrolled.             those who may need appropriate
                                                   knowledge of his or her specific course                     Current Regulations: Current                       accommodations outside of the IDEA.
                                                   content.                                                 § 200.6(a) requires a State to provide for            The proposed regulations would also
                                                      Also, proposed § 200.5(b)(4) would                    the participation of all students,                    clarify that English learners with
                                                   require the State to describe in its title               including students with disabilities, as              disabilities must receive support and
                                                   I State plan its strategies to provide all               defined under section 602(3) of the                   appropriate accommodations relative
                                                   students in the State the opportunity to                 IDEA, and for each student covered by                 both to their disabilities and to their
                                                   be prepared for and to take advanced                     section 504 of the Rehabilitation Act of              status as English learners.
                                                   mathematics coursework in middle                         1973 (section 504), in a State’s academic
                                                   school. This provision is meant to give                  assessment system.                                    Appropriate Accommodations and
                                                   all students, regardless of the school                      Proposed Regulations: The proposed                 Definitions Related to Students With
                                                   they attend, a fair and equitable                        regulations would update this section to              Disabilities
                                                   opportunity to access advanced                           reflect the new statutory inclusion of                  Statute: Section 1111(b)(2)(B)(vii) of
                                                   mathematics in middle school. The                        ‘‘other acts’’ as it relates to students              the ESEA requires that a State’s
                                                   negotiating committee discussed this                     with disabilities. First, the proposed                assessment system provide for the
                                                   provision extensively, with some                         regulations would require the inclusion               participation of all students and
                                                   members objecting to it as unnecessarily                 of all students, including students with              requires appropriate accommodations,
                                                   burdensome and others supporting even                    disabilities, in the State assessments.               such as interoperability with, and
                                                   greater efforts to ensure equal access to                Proposed § 200.6(a)(1) would delineate                ability to use, assistive technology, for
                                                   advanced mathematics in middle                           students who are identified as children               children with disabilities, as defined in
                                                   school. Ultimately, the negotiators                      with disabilities under section 602(3) of             section 602(3) of the IDEA, including
                                                   agreed that the proposed language was                    the IDEA; the subset of such students                 children with the most significant
                                                   a reasonable compromise, particularly                    who are students with the most                        cognitive disabilities, and students with
                                                   since it would apply only to the limited                 significant cognitive disabilities; and               a disability who are provided
                                                   number of States that choose to                          students with disabilities covered under              accommodations under other acts.
                                                   implement the eighth-grade                               other acts, including section 504 and                   Current Regulations: Current
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                                                   mathematics exception. Such States                       title II of the ADA. Proposed                         § 200.6(a)(1) requires a State’s academic
                                                   could address the provision, for                         § 200.6(a)(2)(i) would specify that all               assessment system to provide
                                                   example, by providing accelerated                        students with disabilities, except those              appropriate accommodations, as
                                                   preparation in elementary school to take                 students with the most significant                    determined by a student’s
                                                   advanced mathematics coursework in                       cognitive disabilities, must be assessed              individualized education program (IEP)
                                                   eighth grade or through distance                         using the general academic assessment                 team or placement team, that are
                                                   learning for students whose middle                       aligned with the challenging State                    necessary for a student with a disability,
                                                   school does not offer an advanced                        academic standards for the grade in                   as defined under section 602(3) of the
                                                   mathematics course.                                      which the student is enrolled. Further,               IDEA, or for a student covered under


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                                                   44936                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

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


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                            44937

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


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                                                   44938                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

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


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                            44939

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


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                                                   44940                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   agreed that referencing these topics in                  accommodations including, to the                      may continue, for no more than two
                                                   this section, rather than in § 200.1,                    extent practicable, assessments in the                years, to assess a limited English
                                                   would make the regulations more                          language and form most likely to yield                proficient student in reading/language
                                                   coherent.                                                accurate data on what those students                  arts in the student’s native language if
                                                      Some negotiators argued strongly for                  know and can do in academic content                   the LEA determines, on a case-by-case
                                                   defining the term ‘‘students with the                    areas until they have achieved English                basis, that the student has not reached
                                                   most significant cognitive disabilities’’                proficiency. Section 1111(b)(2)(F)                    a sufficient level of English language
                                                   in the proposed regulation to ensure                     requires a State to identify in its title I           proficiency to yield valid and reliable
                                                   that a State incorporates particular                     State plan the languages other than                   information on reading/language arts
                                                   factors recognized in the field with                     English that are present to a significant             assessments written in English.
                                                   respect to the characteristics of such                   extent in the student population of the                  Proposed Regulations: The proposed
                                                   students and to facilitate compliance                    State and indicate the languages for                  regulations in § 200.6(f)(1)(i) would
                                                   with the State-level 1.0 percent cap on                  which annual academic assessments are                 carry over the requirements from
                                                   participation in alternate assessments                   not available and are needed.                         current § 200.6(b)(1)(i), because the
                                                   aligned with alternate academic                          Notwithstanding this provision, a State               ESEA maintains the requirement that
                                                   achievement standards. Ultimately, the                   must assess an English learner on the                 English learners be assessed in a valid
                                                   negotiating committee agreed, instead of                 State’s reading/language arts assessment              and reliable manner that includes
                                                   including a definition of this term, to                  in English after the student has attended             reasonable accommodations. Proposed
                                                   add references to key aspects a State                    public schools in the United States                   § 200.6(f)(1)(i)(A) would clarify that
                                                   must consider in crafting its own                        (except for schools in Puerto Rico) for               English learners who are also identified
                                                   definition to the requirements for State                 three or more consecutive years. On a                 as students with disabilities under
                                                   guidelines in proposed § 200.6(d)(1).                    case-by-case basis, an LEA may assess a               proposed § 200.6(a) must be provided
                                                      The determination that a student will                 student’s knowledge in reading/                       accommodations as necessary based on
                                                   take an alternate assessment aligned                     language arts in a language or form other             both their status as English learners and
                                                   with alternate academic achievement                      than English for two additional years if              their status as students with disabilities.
                                                   standards could affect the student’s                     the student has not yet reached a level                  Proposed § 200.6(f)(1)(ii)(A) would
                                                   opportunity to complete the                              of English proficiency sufficient to yield            require a State to ensure that the use of
                                                   requirements for a regular high school                   valid and reliable information on what                appropriate accommodations does not
                                                   diploma or the time such student would                   the student knows and can do on tests                 deny an English learner the opportunity
                                                   need to complete high school.                            written in English.                                   to participate in the assessment, or any
                                                   Accordingly, the Department believes it                     Current Regulations: Current                       of the benefits from participation in the
                                                   is important that parents and IEP team                   § 200.6(b)(1) requires each State to                  assessment, that are afforded to students
                                                   members are aware of the potential                       include limited English proficient                    who are not English learners, including
                                                   consequences of such an assignment.                      students in a valid and reliable manner               that English learners who employ
                                                   Many negotiators expressed strong                        in their academic assessment systems.                 appropriate accommodations, consistent
                                                   support for ensuring that State                          Specifically, under current                           with State accommodations guidelines,
                                                   guidelines maximize IEP and parent                       § 200.6(b)(1)(i), a State must provide                can also use the results of such
                                                   information about the impact a student’s                 limited English proficient students with              assessments for the purpose of entrance
                                                   assignment to an alternate assessment                    reasonable accommodations and, to the                 into to postsecondary education or
                                                   aligned with alternate academic                          extent practicable, assessments in the                training programs or for placement into
                                                   achievement standards could have. The                    language and form most likely to yield                credit-bearing courses in such programs.
                                                   proposed regulations in § 200.6(d)(2)–(3)                accurate and reliable information on                     The requirements in proposed
                                                   would require State guidelines to                        what such students know and can do.                   § 200.6(f)(1)(ii)(B)–(E) would clarify a
                                                   provide such information to all relevant                 Current § 200.6(b)(1)(ii) requires each               State’s responsibility to provide for the
                                                   parties, and to do so in a manner                        State, in its title I State plan, to identify         assessment of English learners in the
                                                   consistent with the requirement in                       languages other than English that are                 language most likely to yield accurate
                                                   proposed § 200.2(e) to provide                           present in the student population served              data on what those students know and
                                                   information to parents in a format                       by the SEA and to indicate the                        can do in academic content areas, to the
                                                   accessible to them and, to the extent                    languages for which academic                          extent practicable. Specifically, a State
                                                   practicable, in writing in a language                    assessments are not available and are                 would be required to provide in its title
                                                   they can understand, with oral                           needed. For each language for which                   I State plan a definition for ‘‘languages
                                                   translations in all other cases. These                   assessments are needed, a State must                  that are present to a significant extent in
                                                   guardrails provided committee members                    make every effort to develop such                     the participating student population’’
                                                   sufficient confidence that the regulation                assessment and may request assistance                 and identify which languages other than
                                                   would lead to strong implementation of                   from the Secretary in identifying                     English are included in this definition.
                                                   the statutory cap, even for those who                    linguistically accessible academic                    In determining which languages are
                                                   previously favored defining ‘‘students                   assessments that are needed.                          present to a significant extent, a State
                                                   with the most significant cognitive                         Additionally, current § 200.6(b)(2)                must ensure that its definition
                                                   disabilities’’ in the proposed                           requires a State to assess limited English            encompasses at least the most populous
                                                   regulations.                                             proficient students’ achievement in                   language other than English spoken in
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                                                                                                            English in reading/language arts if those             the participating student population,
                                                   English Learners                                         students have been in public schools in               and consider languages spoken by
                                                     Statute: Section 1111(b)(2)(B)(vii)(III)               the United States (except schools in                  distinct English learner populations
                                                   of the ESEA requires a State’s                           Puerto Rico) for three or more                        (including those who are migratory,
                                                   assessment system to provide for the                     consecutive years, and clarifies that this            immigrants, or Native Americans), as
                                                   participation of all students, including                 requirement does not exempt the State                 well as languages that are spoken by
                                                   English learners. English learners must                  from assessing limited English                        significant numbers of English learners
                                                   be assessed in a valid and reliable                      proficient students for three years.                  in certain LEAs or in certain grade
                                                   manner and provided appropriate                          Under the current regulations, an LEA                 levels.


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                           44941

                                                      The State must then identify in its                   proposed § 200.6(f)(1)(iv), would reflect             than English when needed to gather
                                                   title I State plan whether assessments                   a minimum expectation for a State to                  accurate data on the knowledge and
                                                   are available in any languages other                     meet the statutory requirements in this               skills of English learners in academic
                                                   than English and, if so, for which grades                area, as well as critical considerations              content areas. Given that not all States
                                                   and content areas. For the languages                     raised by negotiators (for example,                   have yet been able to develop
                                                   determined to be present to a significant                considering languages that are spoken                 assessments in languages other than
                                                   extent by the State, the State must also                 by significant portions of students in                English, negotiators agreed that
                                                   indicate in which languages academic                     particular LEAs).                                     providing clarity about what steps a
                                                   assessments are not currently available                     In recent years, a number of States                State must take to demonstrate it has
                                                   but are needed. For each of those                        have developed or provided content                    met the statutory requirements and
                                                   languages, a State would be required to                  assessments in the native languages of                leaving open flexibility if a State faces
                                                   describe how it will make every effort                   English learners. For example, in the                 significant obstacles in developing such
                                                   to develop assessments in languages                      past, Washington state provided                       assessments would be helpful for the
                                                   other than English by, at a minimum,                     translated versions of math and science               State and, ultimately, for students
                                                   providing a plan and timeline,                           assessments for all grades in Chinese,                themselves.
                                                   describing the process it used to gather                 Korean, Russian, Somali, Spanish, and
                                                   public input and consult with key                        Vietnamese; Michigan provided math                    Students in Native American Language
                                                   stakeholders, and, if needed, providing                  and science assessments for all grades in             Schools or Programs
                                                   an explanation for why it was unable to                  Spanish and Arabic. In school year                       Statute: Section 1111(b)(2)(B)(ix) of
                                                   develop assessments in the languages                     2013–2014, 13 States offered reading/                 the ESEA specifically excludes students
                                                   that are present to a significant extent.                language arts, mathematics, or science                in Puerto Rico from the requirement to
                                                      Reasons: The ESEA requires the                        assessments in languages other than                   measure knowledge of reading/language
                                                   provision of appropriate                                 English. Two consortia of States, the                 arts in English after three or more
                                                   accommodations for English learners,                     Partnership for Assessment of Readiness               consecutive years of enrollment in
                                                   including assessments in languages                       for College and Careers (PARCC) and the               schools in the United States because the
                                                   other than English if needed and                         Smarter Balanced Assessment                           language of instruction in Puerto Rico is
                                                   practicable, in order to ensure that                     Consortium (Smarter Balanced), offered                Spanish.
                                                   English learners are fairly and                          native language options during their                     Current Regulations: None.
                                                   accurately assessed. The proposed                        first year of administration in school                   Proposed Regulations: Proposed
                                                   regulations echo these statutory                         year 2014–2015. Twenty-one States, the                § 200.6(f)(2)(i) would provide an
                                                   requirements. Additionally, negotiators                  District of Columbia, the U.S. Virgin                 additional exemption to the requirement
                                                   agreed it is important to clarify that                   Islands, and the Department of Defense
                                                                                                                                                                  that students must be assessed in
                                                   English learners who are also students                   Education Activity (DoDEA) are in one
                                                                                                                                                                  reading/language arts using assessments
                                                   with disabilities must be provided                       of these assessment consortia. Smarter
                                                                                                                                                                  written in English after three years of
                                                   accommodations for both English                          Balanced offers a full ‘‘stacked’’ Spanish
                                                                                                                                                                  attending schools in the United States
                                                   learner status and status as a student                   translation of its math assessments (i.e.,
                                                                                                                                                                  (or five years, as determined by an LEA
                                                   with a disability because this                           the complete Spanish and English
                                                                                                                                                                  on a case-by-case basis) for students in
                                                   population has unique needs that are                     versions are both provided to the
                                                                                                                                                                  Native American language programs or
                                                   sometimes overlooked.                                    student), pop-up glossaries in the 10
                                                      The statutory provisions pertaining to                                                                      schools, pursuant to certain
                                                                                                            most common languages across the
                                                   assessments in languages other than                                                                            requirements laid out in proposed
                                                                                                            States in the consortium, and word-to-
                                                   English remain very similar to the                       word dictionaries in other languages.                 § 200.6(g).
                                                   requirements of the ESEA, as amended                     PARCC provides a Spanish translation                     Under the proposed regulations, this
                                                   by the NCLB. However, section                            of its math assessments at the discretion             exemption would be available only for
                                                   1111(b)(2)(F) now requires that States                   of a State and offers translated                      students enrolled in schools or
                                                   make every effort to develop                             directions and parent reports in the                  programs that provide instruction
                                                   assessments in languages ‘‘present to a                  most common languages, with word-to-                  primarily in a Native American
                                                   significant extent in the participating                  word dictionaries available for other                 language. Further, students enrolled in
                                                   student population’’; given this new                     languages.                                            these Native American language schools
                                                   language in the ESEA, as amended by                         Each State must define languages                   or programs may be excluded from
                                                   the ESSA, the proposed regulations                       ‘‘present to a significant extent,’’                  being assessed using a reading/language
                                                   provide relevant clarification. The                      identify those languages, and make                    arts assessment written in English only
                                                   proposed regulations would provide                       every effort to develop or offer                      if the State: Provides an assessment of
                                                   criteria to guide States in determining                  assessments in those languages                        reading/language arts in that Native
                                                   which languages other than English are                   (including creating a plan and timeline               American language that meets the
                                                   present to a significant extent so that                  for developing assessments in such                    requirements of proposed § 200.2 and
                                                   States can ensure that all English                       languages, gathering public input, and                has been subject to the Department’s
                                                   learners are included in the assessment                  consulting with key stakeholders). If                 assessment peer review; continues to
                                                   system in a valid and reliable manner                    there is a significant reason preventing              assess the English language proficiency
                                                   and to facilitate States’ ability to make                a State from completing the                           of all English learners enrolled in such
                                                                                                                                                                  schools or programs using the State’s
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                                                   every effort to develop needed                           development of these assessments,
                                                   assessments. Rather than specify a                       proposed § 200.6(f)(ii)(E)(3) would allow             annual English language proficiency
                                                   particular definition for languages                      a State to provide an explanation of                  assessment; and ensures that students in
                                                   ‘‘present to a significant extent in the                 these overriding factors. Overall,                    such schools or programs are assessed
                                                   participating student population,’’ the                  negotiators wanted to ensure that                     in reading/language arts, using
                                                   negotiating committee recommended                        English learners are included in                      assessments written in English, by no
                                                   higher-level criteria that a State must                  academic assessments in a valid and                   later than the end of the eighth grade.
                                                   follow in establishing its definition of                 reliable manner, including that States                   Finally, proposed § 200.6(h) would
                                                   this term. These criteria, laid out in                   provide assessments in languages other                incorporate the definition of ‘‘Native


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                                                   44942                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   American’’ from section 8101(34) of the                  Languages (TESOL),1 the majority of                   American languages as found in the
                                                   ESEA.                                                    Native American youth surveyed stated                 NALA as well as the ESEA. They
                                                      Reasons: The Federal government has                   that they value their Native American                 articulated how the provision of
                                                   a trust responsibility to American                       language, view it as integral to their                reading/language arts assessments in
                                                   Indian tribes. As part of this                           sense of self, want to learn it, and view             Native American languages is critical for
                                                   responsibility, Congress has emphasized                  it as a means of facilitating their success           promoting high-quality instruction in
                                                   the importance of preserving and                         in school and life.                                   Native American languages, which in
                                                   revitalizing Native American languages                      As a result, the negotiating committee             turn facilitates improved educational
                                                   in many Federal laws, including the                      recommended including the proposed                    outcomes for Native American students
                                                   ESEA, which contains support for                         exemption, which would be available                   in these schools and programs, as well
                                                   schools and programs that use Native                     only for students enrolled in schools or              as helping to ensure the survival of
                                                   American languages as the primary                        programs that provide instruction                     Native American languages for future
                                                   language of instruction. Specifically, the               primarily in a Native American                        generations.
                                                   following sections of the ESEA are                       language (i.e., 50 percent or more of                    The definition of ‘‘Native American’’
                                                   relevant to this issue:                                  instructional time), including students               in proposed § 200.6(h) would
                                                      • Section 6133, which authorizes a                    identified as English learners and                    incorporate the definition of this term in
                                                   new discretionary grant program for                      students without such designation. The                section 8101(34) of the ESEA. Under
                                                   Native American and Alaska Native                        additional requirements for this                      that definition, ‘‘Native American’’ and
                                                   language immersion schools and                           exemption are designed to ensure high-                ‘‘Native American language’’ have the
                                                   programs to maintain, protect, and                       quality programs and outcomes for                     same meaning as in section 103 of the
                                                   promote the rights and freedom of                        students. For students in a Native                    NALA. Under NALA, ‘‘Native
                                                   Native Americans and Alaska Natives to                   American language program who are                     American’’ means an Indian (as defined
                                                   use, practice, maintain, and revitalize                  also English learners, the LEA would                  in 20 U.S.C. 7491(3), which is now
                                                   their languages;                                         still be required to administer the                   section 6151 of the ESEA, but was
                                                      • Section 3127, which addresses                       annual English language proficiency                   unchanged substantively by the ESSA),
                                                   programs for Native American children                    assessment as required under section                  Native Hawaiian, or Native American
                                                   studying Native American languages;                      1111(b)(2)(G) and to provide English                  Pacific Islander. The definition of
                                                      • Section 6111, which states that a                   language services pursuant to civil                   ‘‘Indian’’ in section 6151 of the ESEA,
                                                   purpose of Indian education is to meet                   rights obligations. The requirement to                includes Alaska Natives, as well as
                                                   the unique cultural, language, and                       use an assessment of reading/language                 members of any federally recognized or
                                                   educational needs of such students;                      arts in English no later than the eighth              State-recognized tribes. Because it is
                                                      • Section 6205, which authorizes                      grade is intended to ensure that students             difficult to ascertain the full definition
                                                   grants to entities operating Native                      are able to succeed in high school and                from section 8101(34) of the ESEA
                                                   Hawaiian programs of instruction in the                  postsecondary institutions in which the               alone, we propose to provide the full
                                                   Native Hawaiian language and                             language of instruction is English. There             definition in this section for the
                                                   establishes a priority for use of the                    are many different models of Native                   convenience of the public.
                                                   Hawaiian language in instruction; and                    American language programs. Some
                                                                                                                                                                  Assessing English Language Proficiency
                                                      • Section 6304, which authorizes use                  start as immersion in the Native
                                                                                                            American language and gradually                         Statute: Under section 1111(b)(2)(G)
                                                   of grant funds for instructional programs                                                                      and sections 3111(b)(2)(E)(i),
                                                                                                            transition to more English throughout
                                                   that make use of Alaska Native                                                                                 3113(b)(6)(A), 3115(g)(2)(A),
                                                                                                            elementary school, whereas others
                                                   languages and native language                                                                                  3116(b)(2)(A), and 3121(a)(3) of the
                                                                                                            adopt a bilingual approach across the
                                                   immersion programs or schools.                                                                                 ESEA, a State must develop and
                                                                                                            grades. States or districts would have
                                                      In addition, the Native American                                                                            administer a statewide annual
                                                                                                            the flexibility under this exemption to
                                                   Languages Act of 1990 (NALA) requires                                                                          assessment of English language
                                                                                                            decide in which grade to begin
                                                   all Federal agencies to encourage and                                                                          proficiency to all English learners in
                                                                                                            administering the reading/language arts
                                                   support the use of Native American                                                                             schools served by the SEA. The English
                                                                                                            assessment in English, so long as
                                                   languages as a medium of instruction                                                                           language proficiency assessment must
                                                                                                            students begin taking such assessments
                                                   and states that it is the policy of the                                                                        be aligned with the State’s English
                                                                                                            in English no later than the eighth
                                                   United States to preserve, protect, and                  grade.                                                language proficiency standards under
                                                   promote the rights and freedom of                           Importantly, this exemption in                     section 1111(b)(1)(F), which must be
                                                   Native Americans to use, practice, and                   proposed § 200.6(g) reflects the input of             derived from the four domains of
                                                   develop Native American languages.                       negotiators, especially tribal leader                 speaking, listening, reading, and
                                                   Moreover, Executive Order 13592,                         negotiators on the negotiating                        writing, address the different
                                                   ‘‘Improving American Indian and                          committee. The tribal leader negotiators              proficiency levels of English learners,
                                                   Alaska Native Educational                                emphasized the Federal government’s                   and be aligned with the challenging
                                                   Opportunities and Strengthening Tribal                   responsibility to help revitalize Native              State academic standards. Under section
                                                   Colleges and Universities,’’ sets forth                  American languages in light of the                    1111(b)(2)(J)(ii)(II), if a State develops a
                                                   the Administration’s policy, including                   history of Federal eradication of those               computer-adaptive English language
                                                   ‘‘to help ensure that American Indian/                   languages, including through boarding                 proficiency assessment, the State must
                                                   Alaska Native students have an
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                                                                                                            schools where students were stripped of               ensure that the assessment measures a
                                                   opportunity to learn their Native                        their tribal identities and languages.                student’s language proficiency, which
                                                   languages.’’ These declarations of                       They also emphasized the Federal                      may include growth toward proficiency,
                                                   Federal policy are supported by growing                  commitment to preserve Native                         in order to measure the student’s
                                                   recognition of the importance of Native                                                                        acquisition of English. If a State assesses
                                                   language preservation in facilitating                      1 Romero-Little, Mary Eunice, Teresa L. McCarty,
                                                                                                                                                                  students with the most significant
                                                   educational success for Native                           Larisa Warhol, and Oiedia Zepeda. 2007. ‘‘Language    cognitive disabilities with an alternate
                                                                                                            Policies in Practice: Preliminary Findings from a
                                                   American students. In a 2007 study by                    Large-Scale Study of Native American Language         assessment aligned with alternate
                                                   Teachers of English to Students of Other                 Shift.’’ TESOL Quarterly 41:3, 607–618.               academic achievement standards, the


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                                 44943

                                                   State must have an alternate English                     1111(b)(2)(G) of the ESEA would largely               who are also students with disabilities
                                                   language proficiency assessment for                      reflect statutory updates (e.g., the                  as needed to measure their English
                                                   those students who are English learners                  addition of computer-adaptive English                 language proficiency on the annual
                                                   in accordance with section 612(a)(16) of                 language proficiency assessments) and                 English language proficiency
                                                   the IDEA.                                                provide clarification, as needed, to the              assessment, which is required by other
                                                      Current Regulations: Current                          statutory language.                                   provisions of the ESEA, as well as by
                                                   § 200.6(b)(3) requires each State to                        First, the proposed regulations would              the IDEA and other Federal statutes.
                                                   require each LEA to assess annually the                  require uniform English language                         Finally, proposed § 200.6(f)(3)(v)
                                                   English language proficiency, including                  proficiency tests across the State. The               would require that, if an English learner
                                                   reading, writing, speaking, and listening                ESEA refers in several places, including              with the most significant cognitive
                                                   skills, of all students with limited                     in section 3102(b)(1)(E)(i) and section               disabilities cannot participate in the
                                                   English proficiency in schools in the                    3102(b)(3)(A)(ii), to the annual English              annual English language proficiency
                                                   LEA.                                                     language proficiency assessment as the                assessment even with accommodations,
                                                      Proposed Regulations: Proposed                        ‘‘State’s English language proficiency                a State must provide for an alternate
                                                   § 200.6(f)(3)(i) would require each State                assessment,’’ though section                          English language proficiency assessment
                                                   to develop a uniform statewide                           1111(b)(2)(G) does not expressly refer to             for such a student. This is required by
                                                   assessment of English language                           this assessment as a statewide                        section 612 of the IDEA, as amended by
                                                   proficiency (including skills in the four                assessment. Currently, however, all                   the ESSA, and was noted in the
                                                   recognized domains of language) and                      States do use a uniform statewide                     Department’s non-regulatory guidance
                                                   require that its LEAs annually assess the                assessment of English language                        from 2014 2 and 2015.3
                                                   English language proficiency of all                      proficiency. To ensure consistency with
                                                   English learners served using this                                                                             Recently Arrived English Learners
                                                                                                            current practice, promote technical
                                                   statewide English language proficiency                   validity, quality, and comparability of                 Statute: With respect to a recently
                                                   assessment.                                              English language proficiency assessment               arrived English learner who has been
                                                      Proposed § 200.6(f)(3)(ii) would                      results across LEAs, and clarify an area              enrolled in a school in one of the 50
                                                   require that a State’s annual English                    of statutory ambiguity, proposed                      States or the District of Columbia for
                                                   language proficiency assessment                          § 200.6(f)(3)(i)(A) would make it clear               less than 12 months, a State may, under
                                                   provide coherent and timely                              that the annual English language                      section 1111(b)(3) of the ESEA, exclude
                                                   information about each English learner’s                 proficiency assessment must be a                      the student from one administration of
                                                   attainment of the State’s English                        uniform statewide assessment.                         the State’s reading/language arts
                                                   language proficiency standards,                          Negotiators agreed without extensive                  assessment.
                                                   including information to be provided to                  debate that using a single statewide                    Current Regulations: Current
                                                   parents consistent with the                              English language proficiency assessment               § 200.6(b)(4) governs the limited
                                                   requirements of proposed § 200.2(e).                     is necessary to promote quality,                      exemption for recently arrived limited
                                                   Further, the proposed regulations would                  consistency, and comparability.                       English proficient students in State
                                                   require that a State’s English language                     Due to the increased importance of                 assessment systems. Under the current
                                                   proficiency assessment meet certain                      the English language proficiency                      regulations, a State may exempt a
                                                   requirements for validity and reliability                assessment, especially with the                       recently arrived limited English
                                                   under proposed § 200.2(b)(2)–(4) and be                  inclusion of progress toward achieving                proficient student from one
                                                   submitted for Federal peer review under                  English language proficiency in the                   administration of the State’s reading/
                                                   section 1111(a)(4).                                      accountability system under section                   language arts assessment. Section
                                                      If a State develops a computer-                       1111(c) of the ESEA, negotiators also                 200.6(b)(4)(iv) defines a ‘‘recently
                                                   adaptive English language proficiency                    emphasized that these assessments                     arrived limited English proficient
                                                   assessment, it would be required to                      should be submitted for Federal peer                  student’’ as a student with limited
                                                   ensure that the assessment measures a                    review and held to the same                           proficiency in English who has attended
                                                   student’s English language proficiency                   requirements for validity and reliability             schools in the United States (i.e.,
                                                   (which may include growth toward                         as academic content assessments under                 schools in the 50 States and the District
                                                   proficiency) and meets all other                         proposed § 200.2(b)(2), (4), and (6).                 of Columbia) for less than 12 months.
                                                   requirements for English language                        Additionally, negotiators considered it                 Under the current regulations, if a
                                                   proficiency assessments in general.                      important to require that information be              State does not assess a recently arrived
                                                      For English learners who are also                     provided to parents about student                     English proficient student on the State’s
                                                   students with disabilities under                         attainment of a State’s English language              reading/language arts assessment, the
                                                   proposed § 200.6(a), proposed                            proficiency standards, as measured by                 State must count the year in which the
                                                   § 200.6(f)(3)(iv) would provide that a                   the annual English language proficiency               assessment would have been
                                                   State must provide appropriate                           assessment, in a language and form that               administered as the first of the three
                                                   accommodations on the English                            they can understand in order to ensure                years in which the student may take the
                                                   language proficiency assessment and,                     parents have all needed information to
                                                                                                                                                                    2 U.S. Department of Education. 2014. Questions
                                                   for English learners who are also                        support their children and to advocate
                                                                                                                                                                  and Answers Regarding Inclusion of English
                                                   students with the most significant                       for their children’s educational                      Learners with Disabilities in English Language
                                                   cognitive disabilities covered under                     opportunities and appropriate English                 Proficiency Assessments and Title III Annual
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                                                   proposed § 200.6(a)(1)(ii) who cannot                    language services.                                    Measurable Achievement Objectives. Available at
                                                   participate in the English language                         The proposed regulation also                       http://www2.ed.gov/policy/speced/guid/idea/
                                                                                                                                                                  memosdcltrs/q-and-a-on-elp-swd.pdf.
                                                   proficiency assessment even with                         addresses the inclusion of English                      3 U.S. Department of Education. 2015. Addendum
                                                   accommodations, a State must provide                     learners who are also students with                   to Questions and Answers Regarding Inclusion of
                                                   for an alternate English language                        disabilities in the annual English                    English Learners with Disabilities in English
                                                   proficiency assessment.                                  language proficiency assessment.                      Language Proficiency Assessments and Title III
                                                                                                                                                                  Annual Measurable Achievement Objectives.
                                                      Reasons: The proposed regulations                     Proposed § 200.6(f)(3)(iv) would clarify              Available at http://www2.ed.gov/policy/speced/
                                                   pertaining to a State’s English language                 that States must provide appropriate                  guid/idea/memosdcltrs/addendum-q-and-a-on-elp-
                                                   proficiency assessment under section                     accommodations for English learners                   swd.pdf.



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                                                   44944                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   State’s reading/language arts assessment                 exception only applies to reading/                    reaffirm the requirement that a State
                                                   in a native language. Section                            language arts. Additionally, the                      must include all such students in the
                                                   200.6(b)(4)(i)(C) requires a State and its               definition of a ‘‘recently arrived English            assessment system and in the subgroups
                                                   LEAs to report on State and district                     learner’’ in proposed § 200.6(f)(5)(i)                of students included in the
                                                   report cards the number of limited                       reflects the statutory change that now                accountability system under section
                                                   English language proficient students                     defines recently arrived English learners             1111(c)(2) of the ESEA.
                                                   who are not assessed on the State’s                      as those who have been enrolled in
                                                   reading language arts assessment.                        schools in the United States for less                 Executive Orders 12866 and 13563
                                                      Additionally, the current regulations                 than 12 months, rather than those who                 Regulatory Impact Analysis
                                                   reiterate that the exemption for recently                have attended schools in the United                      Under Executive Order 12866, the
                                                   arrived limited English proficient                       States for less than 12 months.
                                                   students does not relieve an LEA of its                                                                        Office of Management and Budget
                                                   responsibility to provide such students                  Highly Mobile Students                                (OMB) must determine whether this
                                                   with appropriate instruction to assist                      Statute: Section 1111(b)(2)(B)(vii) of             regulatory action is ‘‘significant’’ and,
                                                   them in gaining English language                         the ESEA requires a State’s assessment                therefore, subject to the requirements of
                                                   proficiency as well as content                           system to provide for the participation               the Executive order and subject to
                                                   knowledge in reading/language arts and                   of all students, including students who               review by OMB. Section 3(f) of
                                                   math, or from its responsibility to assess               are highly mobile and who may not                     Executive Order 12866 defines a
                                                   the student’s English language                           attend the same school or LEA for a full              ‘‘significant regulatory action’’ as an
                                                   proficiency or mathematics                               academic year.                                        action likely to result in a rule that
                                                   achievement.                                                Current Regulations: Current                       may—
                                                      Proposed Regulations: Proposed                        § 200.6(c) reiterates that a State must                  (1) Have an annual effect on the
                                                   § 200.6(f)(4) would update the current                   include migratory and other mobile                    economy of $100 million or more, or
                                                   regulations to reflect a statutory change                students in its academic assessment                   adversely affect a sector of the economy,
                                                   in the ESEA pertaining to the definition                 system even if those students are not                 productivity, competition, jobs, the
                                                   of a ‘‘recently arrived English learner.’’               included for accountability purposes.                 environment, public health or safety, or
                                                   Pursuant to the statute, the proposed                    Additionally, § 200.6(d) reinforces that a            State, local, or tribal governments or
                                                   regulations would define a ‘‘recently                    State must include students                           communities in a material way (also
                                                   arrived English learner’’ as an English                  experiencing homelessness in its                      referred to as an ‘‘economically
                                                   learner who has been enrolled in                         academic assessment, reporting, and                   significant’’ rule);
                                                   schools in the United States for less                    accountability systems, but clarifies that               (2) Create serious inconsistency or
                                                   than 12 months. We would also clarify                    States need not disaggregate academic                 otherwise interfere with an action taken
                                                   in proposed § 200.6(f)(4)(iii) that,                     assessment data on students                           or planned by another agency;
                                                   though recently arrived English learners                 experiencing homelessness separately.                    (3) Materially alter the budgetary
                                                   may be exempted from one                                    Proposed Regulations: Proposed                     impacts of entitlement grants, user fees,
                                                   administration of the reading/language                   § 200.6(i) would clarify that a State must            or loan programs or the rights and
                                                   arts assessment, these students must be                  include all students, including highly                obligations of recipients thereof; or
                                                   assessed in mathematics and science                      mobile student populations, in its                       (4) Raise novel legal or policy issues
                                                   consistent with the frequency described                  assessment system, including migratory                arising out of legal mandates, the
                                                   in proposed § 200.5(a). The remaining                    children, homeless children or youth,                 President’s priorities, or the principles
                                                   proposed regulations in § 200.6(f)(4)                    children in foster care, and students                 stated in the Executive order.
                                                   would carry over the current                             with a parent who is a member of the                     This proposed regulatory action is
                                                   regulations, with only minor changes to                  Armed Forces on active duty. Proposed                 significant and subject to review by
                                                   reflect technical updates from the                       § 200.2(b)(11) would include the                      OMB under section 3(f) of Executive
                                                   statute (e.g., updated statutory                         definitions associated with these                     Order 12866.
                                                   citations).                                              student populations.                                     We have also reviewed these
                                                      Reasons: While the ESEA made                             Reasons: Proposed § 200.6(i), which                regulations under Executive Order
                                                   changes to the inclusion of recently                     addresses highly mobile students,                     13563, which supplements and
                                                   arrived English learners in                              would build on current regulations and                explicitly reaffirms the principles,
                                                   accountability, it made no changes to                    continue to reiterate that a State must               structures, and definitions governing
                                                   the provisions pertaining to the                         include migratory children and                        regulatory review established in
                                                   inclusion of recently arrived English                    homeless children and youth in the                    Executive Order 12866. To the extent
                                                   learners in a State’s academic content                   State’s assessment system. Since the                  permitted by law, Executive Order
                                                   assessments; that is, recently arrived                   ESEA brings to the forefront additional               13563 requires that an agency—
                                                   English learners may still be exempted                   highly mobile student populations                        (1) Propose or adopt regulations only
                                                   from one, and only one, administration                   (specifically, children in foster care and            on a reasoned determination that their
                                                   of the reading/language arts assessment                  military-connected students), the                     benefits justify their costs (recognizing
                                                   during a student’s first 12 months in                    proposed regulations would broaden the                that some benefits and costs are difficult
                                                   schools in the United States. Thus, the                  current regulations to emphasize these                to quantify);
                                                   proposed regulations only reflect minor                  vulnerable student populations as well.                  (2) Tailor its regulations to impose the
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                                                   technical changes in this area and one                   Given the transience and mobility                     least burden on society, consistent with
                                                   area of additional clarification.                        associated with these populations, and                obtaining regulatory objectives and
                                                   Proposed § 200.6(f)(4)(iii) would clarify                research showing that highly mobile                   taking into account—among other things
                                                   that recently arrived English learners                   students are more likely than their peers
                                                   must be assessed in science (as well as                  to experience negative educational                    residential mobility on the academic achievement
                                                   mathematics, which is already reflected                                                                        of urban elementary and middle school students.’’
                                                                                                            outcomes,4 we consider it crucial to                  Educational Researcher 41(9), 385–392; and
                                                   in current § 200.6(b)(4)(iii)), according                                                                      Rumberger, R. & Larson, K. 1998. Student mobility
                                                   to the frequency described in proposed                    4 See, for example, Voight, A., Shinn, M. &          and the increased risk of high school dropout.
                                                   § 200.5(a), to reiterate for States that this            Nation, M. 2012. ‘‘The longitudinal effects of        American Journal of Education 107(1), 1–35.



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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                            44945

                                                   and to the extent practicable—the costs                  Federal education funds, including                    technical quality and comparability. In
                                                   of cumulative regulations;                               funds available under Grants for State                establishing these criteria, we expect
                                                      (3) In choosing among alternative                     Assessments and Related Activities.                   States to rely in large part on existing
                                                   regulatory approaches, select those                        Moreover, the proposed regulations                  Department assessment peer review
                                                   approaches that maximize net benefits                    would implement statutory provisions                  guidance and other assessment
                                                   (including potential economic,                           that could ease assessment burden on                  technical quality resources.
                                                   environmental, public health and safety,                 States and LEAs. For example, proposed                Accordingly, we believe that the costs of
                                                   and other advantages; distributive                       § 200.5(b) would implement the                        complying with proposed
                                                   impacts; and equity);                                    provision in section 1111(b)(2)(C) of the             § 200.3(b)(1)—which could be financed,
                                                      (4) To the extent feasible, specify                   ESEA under which a State that                         in particular, with funds available under
                                                   performance objectives, rather than the                  administers an end-of-course                          Grants for State Assessments and
                                                   behavior or manner of compliance a                       mathematics assessment to meet the                    Related Activities—would be minimal
                                                   regulated entity must adopt; and                         high school assessment requirement                    for the 20 States that we estimate will
                                                      (5) Identify and assess available                     may exempt an eighth-grade student
                                                                                                                                                                  seek to approve a nationally recognized
                                                   alternatives to direct regulation,                       who takes the end-of-course assessment
                                                                                                                                                                  high school academic assessment for
                                                   including economic incentives—such as                    from also taking the mathematics
                                                   user fees or marketable permits—to                                                                             LEA use. Further, we believe the costs
                                                                                                            assessment the State typically
                                                   encourage the desired behavior, or                       administers in eighth grade (provided                 of this proposed regulation are
                                                   provide information that enables the                     that the student takes a more advanced                outweighed by its benefit to LEAs in
                                                   public to make choices.                                  mathematics assessment in high school),               those States, namely, the flexibility to
                                                      Executive Order 13563 also requires                   thus avoiding the double-testing of                   administer for accountability purposes
                                                   an agency ‘‘to use the best available                    eighth-grade students who take                        the assessments they believe most
                                                   techniques to quantify anticipated                       advanced mathematics coursework.                      effectively measure, and can be used to
                                                   present and future benefits and costs as                   In general, the Department believes                 identify and address, the academic
                                                   accurately as possible.’’ The Office of                  that the costs associated with the                    needs of their high school students.
                                                   Information and Regulatory Affairs of                    proposed regulations (which are                       Native Language Assessments
                                                   OMB has emphasized that these                            discussed in more detail below for
                                                   techniques may include ‘‘identifying                     potential cost-bearing requirements not                  Proposed § 200.6(f)(1) would
                                                   changing future compliance costs that                    related to information collection                     implement the new provision in section
                                                   might result from technological                          requirements) are outweighed by their                 1111(b)(2)(F) of the ESEA requiring a
                                                   innovation or anticipated behavioral                     benefits, which would include the                     State to make every effort to develop, for
                                                   changes.’’                                               administration of assessments that                    English learners, annual academic
                                                      We have assessed the potential costs                  produce valid and reliable information                assessments in languages other than
                                                   and benefits of this regulatory action.                  on the achievement of all students,                   English that are present to a significant
                                                   The potential costs associated with the                  including students with disabilities and              extent in the participating student
                                                   proposed regulations are those resulting                 English learners, that can be used by                 population. In doing so, proposed
                                                   from statutory requirements and those                    States to effectively measure school                  § 200.6(f)(1) would require a State, in its
                                                   we have determined as necessary for                      performance and identify                              title I State plan, to define ‘‘languages
                                                   effective and efficient administration of                underperforming schools, by LEAs and                  other than English that are present to a
                                                   the assessment provisions in part A of                   schools to inform and improve                         significant extent in the participating
                                                   title I of the ESEA. Elsewhere in this                   classroom instruction and student
                                                                                                                                                                  student population,’’ ensure that its
                                                   section under Paperwork Reduction Act                    supports, and by parents and other
                                                                                                                                                                  definition includes at least the most
                                                   of 1995, we identify and explain                         stakeholders to hold schools
                                                                                                                                                                  populous language other than English
                                                   burdens specifically associated with                     accountable for progress, ultimately
                                                                                                                                                                  spoken by the participating student
                                                   information collection requirements.                     leading to improved academic outcomes
                                                                                                                                                                  population, describe how it will make
                                                      In assessing the potential costs and                  and the closing of achievement gaps,
                                                                                                            consistent with the purpose of title I of             every effort to develop assessments
                                                   benefits—both quantitative and
                                                                                                            the ESEA.                                             consistent with its definition where
                                                   qualitative—of these proposed
                                                                                                                                                                  such assessments are not available and
                                                   regulations, we have determined that                     Locally Selected, Nationally Recognized               are needed, and explain, if applicable,
                                                   the benefits would justify the costs.                    High School Academic Assessments
                                                      We also have determined that this                                                                           why it is unable to complete the
                                                   regulatory action would not unduly                         Proposed § 200.3(b) would implement                 development of those assessments
                                                   interfere with State, local, and tribal                  the new provision in section                          despite making every effort. Although a
                                                   governments in the exercise of their                     1111(b)(2)(H) of the ESEA under which                 State may incur costs in complying with
                                                   governmental functions.                                  a State may permit an LEA to administer               the requirement to make every effort to
                                                                                                            a State-approved nationally recognized                develop these assessments consistent
                                                   Discussion of Costs and Benefits                         high school academic assessment in                    with its definition, we do not believe
                                                      The Department believes that this                     reading/language arts, mathematics, or                these costs would be significant, in part
                                                   regulatory action would generally not                    science in lieu of the high school                    because under section 1111(b)(2)(F)(ii) a
                                                   impose significant new costs on States                   assessment the State typically                        State may request assistance from the
                                                                                                                                                                  Secretary in identifying appropriate
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                                                   or their LEAs. This action would                         administers in that subject. If a State
                                                   implement and clarify the changes to                     seeks to approve a nationally recognized              linguistically accessible academic
                                                   the assessment provisions in part A of                   high school academic assessment for                   assessment measures. We believe the
                                                   title I of the ESEA made by the ESSA,                    use by one or more of its LEAs,                       costs of complying with this
                                                   which as discussed elsewhere in this                     proposed § 200.3(b)(1) would require,                 requirement are outweighed by its
                                                   notice are limited in scope. The costs to                consistent with the statute, that the                 potential benefits to SEAs and their
                                                   States and LEAs for complying with                       State establish technical criteria to                 LEAs, which would include fairer and
                                                   these changes would similarly be                         determine whether the assessment                      more accurate assessments of the
                                                   limited, and would be financed with                      meets specific requirements for                       achievement of English learners.


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                                                   44946                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   Clarity of the Regulations                               proposed requirements would help                      changes to information collection 1810–
                                                      Executive Order 12866 and the                         ensure that assessments administered in               0576. These proposed regulations would
                                                   Presidential memorandum ‘‘Plain                          these LEAs produce valid and reliable                 result in additional changes to the
                                                   Language in Government Writing’’                         information on the achievement of all                 existing information collection,
                                                   require each agency to write regulations                 students, including students with                     described below.
                                                                                                            disabilities and English learners, that                  Proposed § 200.2(d) would require
                                                   that are easy to understand.
                                                                                                            can be used to inform and improve                     States to submit evidence regarding
                                                      The Secretary invites comments on
                                                                                                            classroom instruction and student                     their general assessments, alternate
                                                   how to make these proposed regulations
                                                                                                            supports, ultimately leading to                       assessments, and English language
                                                   easier to understand, including answers
                                                                                                            improved student academic outcomes.                   proficiency assessments for the
                                                   to questions such as the following:                                                                            Department’s peer review process, and
                                                                                                            The Secretary invites comments from
                                                      • Are the requirements in the                                                                               proposed § 200.2(b)(5)(ii) would require
                                                                                                            small LEAs as to whether they believe
                                                   proposed regulations clearly stated?                                                                           that States make evidence of technical
                                                                                                            the requirements proposed in this
                                                      • Do the proposed regulations contain                                                                       quality publicly available. Proposed
                                                                                                            document would have a significant
                                                   technical terms or other wording that                                                                          § 200.3(b)(2)(ii) would require a State
                                                                                                            economic impact on them and, if so,
                                                   interferes with their clarity?                                                                                 that allows an LEA to administer a
                                                                                                            requests evidence to support that belief.
                                                      • Does the format of the proposed                                                                           locally selected, nationally recognized
                                                   regulations (grouping and order of                       Paperwork Reduction Act of 1995                       high school academic assessment in
                                                   sections, use of headings, paragraphing,                    As part of its continuing effort to                place of the State assessment to submit
                                                   etc.) aid or reduce their clarity?                       reduce paperwork and respondent                       the selected assessment for the
                                                      • Would the proposed regulations be                   burden, the Department provides the                   Department’s peer review process. We
                                                   easier to understand if we divided them                  general public and Federal agencies                   anticipate that 52 States will spend 200
                                                   into more (but shorter) sections? (A                     with an opportunity to comment on                     hours preparing and submitting
                                                   ‘‘section’’ is preceded by the symbol                    proposed and continuing collections of                evidence regarding their content
                                                   ‘‘§ ’’ and a numbered heading; for                       information in accordance with the                    assessments, alternate assessments, and
                                                   example, § 200.2.)                                       Paperwork Reduction Act of 1995 (PRA)                 English language proficiency
                                                      • Could the description of the                        (44 U.S.C. 3506(c)(2)(A)). This helps                 assessments for peer review, and that 20
                                                   proposed regulations in the                              ensure that: The public understands the               States will spend an additional 100
                                                   SUPPLEMENTARY INFORMATION section of                     Department’s collection instructions,                 hours preparing and submitting
                                                   this preamble be more helpful in                         respondents can provide the requested                 evidence relating to locally selected,
                                                   making the proposed regulations easier                   data in the desired format, reporting                 nationally recognized high school
                                                   to understand? If so, how?                               burden (time and financial resources) is              academic assessments. Accordingly, we
                                                      • What else could we do to make the                   minimized, collection instruments are                 anticipate the total burden over the
                                                   proposed regulations easier to                           clearly understood, and the Department                three-year period for which we seek
                                                   understand?                                              can properly assess the impact of                     information collection approval to be
                                                      To send any comments that concern                     collection requirements on respondents.               12,400 hours for all respondents,
                                                   how the Department could make these                         Proposed §§ 200.2, 200.3, 200.5,                   resulting in an increased annual burden
                                                   proposed regulations easier to                           200.6, and 200.8 contain information                  of 4,133 hours.
                                                   understand, see the instructions in the                  collection requirements. Under the PRA,                  Proposed § 200.5(b)(4) would require
                                                   ADDRESSES section.                                       the Department has submitted a copy of                a State that uses the middle school
                                                   Regulatory Flexibility Act Certification                 these sections to OMB for its review.                 mathematics exception to describe in its
                                                                                                               A Federal agency may not conduct or                title I State plan its strategies to provide
                                                      The Secretary proposes to certify that                sponsor a collection of information                   all students in the State the opportunity
                                                   these proposed requirements would not                    unless OMB approves the collection                    to be prepared for and take advanced
                                                   have a significant economic impact on                    under the PRA and the corresponding                   mathematics coursework in middle
                                                   a substantial number of small entities.                  information collection instrument                     school. We anticipate that this will not
                                                   Under the U.S. Small Business                            displays a currently valid OMB control                increase burden, as information
                                                   Administration’s Size Standards, small                   number. Notwithstanding any other                     collection 1810–0576 already accounts
                                                   entities include small governmental                      provision of law, no person is required               for the burden associated with preparing
                                                   jurisdictions such as cities, towns, or                  to comply with, or is subject to penalty              the title I State plan.
                                                   school districts (LEAs) with a                           for failure to comply with, a collection                 Proposed § 200.6(b)(2)(i) would
                                                   population of less than 50,000.                          of information if the collection                      require all States to develop,
                                                   Although the majority of LEAs that                       instrument does not display a currently               disseminate information to schools and
                                                   receive ESEA funds qualify as small                      valid OMB control number.                             parents, and promote the use of
                                                   entities under this definition, the                         In the final regulations, we will                  appropriate accommodations to ensure
                                                   requirements proposed in this                            display the control number assigned by                that all students with disabilities are
                                                   document would not have a significant                    OMB to any information collection                     able to participate in academic
                                                   economic impact on these small LEAs                      requirements proposed in this NPRM                    instruction and assessments. We
                                                   because the costs of implementing these                  and adopted in the final regulations.                 anticipate that 52 States will spend 60
                                                   requirements would be covered by                            The proposed regulations would                     hours developing and disseminating
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                                                   funding received by States under                         affect a currently approved information               this information annually, resulting in
                                                   Federal education programs including                     collection, 1810–0576. Under 1810–                    an annual burden increase of 3,120
                                                   Grants for State Assessments and                         0576, the Department is approved to                   hours.
                                                   Related Activities. The Department                       collect information from States,                         Proposed § 200.6(c)(3)(iv) would
                                                   believes the benefits provided under                     including assessment information. On                  require all States to make publicly
                                                   this proposed regulatory action                          May 31, 2016, the Department                          available information submitted by an
                                                   outweigh the burdens on these small                      published in the Federal Register a                   LEA justifying the need of the LEA to
                                                   LEAs of complying with the proposed                      notice of proposed rulemaking (81 FR                  exceed the cap on the number of
                                                   requirements. In particular, the                         34539), which identified proposed                     students with the most significant


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                                                                                  Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                                 44947

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

                                                   § 200.2(b), § 200.2(d),                        States would be required to submit evidence for the Depart-           OMB 1810–0576. The burden would increase
                                                      § 200.3(b)(2)(ii).                            ment’s peer review process, and to make this evidence                by 4,133 hours.
                                                                                                    available to the public.
                                                   § 200.5(b)(4) ..............................   States would be required to describe in the title I State plan        OMB 1810–0576. No change in burden, as
                                                                                                    strategies to provide all students with the opportunity to           this burden is already considered in the bur-
                                                                                                    take advanced mathematics coursework in middle school.               den of preparing a title I State plan.
                                                   § 200.6(b)(2)(i) ...........................   States would be required to disseminate information regard-           OMB 1810–0576. The burden would increase
                                                                                                    ing the use of appropriate accommodations to schools and             by 3,120 hours.
                                                                                                    parents.
                                                   § 200.6(c)(3)(iv) .........................    Certain States would be required to make publicly available           OMB 1810–0576. The burden would increase
                                                                                                    LEA-submitted information about the need to exceed the               by 1,040 hours.
                                                                                                    cap for assessing students with the most significant cog-
                                                                                                    nitive disabilities with an alternate assessment aligned with
                                                                                                    alternate academic achievement standards.
                                                   § 200.6(c)(4) ..............................   Certain States would request a waiver from the Secretary, to          OMB 1810–0576. The burden would increase
                                                                                                    exceed the cap for assessing students with the most sig-             by 600 hours.
                                                                                                    nificant cognitive disabilities with an alternate assessment
                                                                                                    aligned with alternate academic achievement standards.
                                                   § 200.6(c)(5) ..............................   States would be required to report to the Secretary data relat-       OMB 1810–0576. We anticipate the burden
                                                                                                    ing to the assessment of children with disabilities.                 would increase by 2,080 hours.
                                                   § 200.6(d)(3) ..............................   States that adopt alternate achievement standards for stu-            OMB 1810–0576. The burden would increase
                                                                                                    dents with the most significant cognitive disabilities would         by 5,200 hours.
                                                                                                    be required to ensure certain parents are provided with in-
                                                                                                    formation.
                                                   § 200.8(a)(2), § 200.8(b)(1) .......           States would be required to provide student assessment re-            OMB 1810–0576. The burden would increase
                                                                                                    ports to States, teachers, and principals, as well as                by 78,000 hours.
                                                                                                    itemized score analyses for LEAs and schools.



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




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                                                   44948                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                                                         COLLECTION OF INFORMATION FROM LEAS—PARENTAL NOTIFICATION
                                                                                                                                                                              OMB Control number and
                                                          Regulatory section                                      Information collection                                     estimated change in burden

                                                   § 200.3(c)(1)(i), § 200.3(c)(3),        Certain LEAs would be required to notify parents of high                OMB 1810–0576. The burden would increase
                                                      § 200.3(c)(4).                         school students about selected assessments.                            by 34,000 hours.



                                                      We have prepared an Information                       proposed regulations. Written requests                (Catalog of Federal Domestic Assistance
                                                   Collection Request (ICR) for these                       for information or comments submitted                 Numbers: 84.010 Title I Grants to Local
                                                   collections. If you want to review and                   by postal mail or delivery should be                  Educational Agencies; and 84.369 Grants for
                                                   comment on the ICR, please follow the                    addressed to the Director of the                      State Assessments and Related Activities)
                                                   instructions listed under the ADDRESSES                  Information Collection Clearance                      List of Subjects in 34 CFR Part 200
                                                   section of this notice. Please note the                  Division, U.S. Department of Education,
                                                                                                                                                                    Education of disadvantaged,
                                                   Office of Information and Regulatory                     400 Maryland Avenue SW., Mailstop L–
                                                                                                                                                                  Elementary and secondary education,
                                                   Affairs (OMB) and the Department                         OM–2–2E319LBJ, Room 2E115,
                                                                                                                                                                  Grant programs—education, Indians—
                                                   review all comments on an ICR that are                   Washington, DC 20202–4537.
                                                                                                                                                                  education, Infants and children,
                                                   posted at www.regulations.gov. In                        Comments submitted by fax or email
                                                                                                                                                                  Juvenile delinquency, Migrant labor,
                                                   preparing your comments, you may                         and those submitted after the comment
                                                                                                                                                                  Private schools, Reporting and
                                                   want to review the ICR in                                period will not be accepted.
                                                                                                                                                                  recordkeeping requirements.
                                                   www.regulations.gov or in                                FOR FURTHER INFORMATION CONTACT:
                                                   www.reginfo.gov. The comment period                      Electronic mail ICDocketMgr@ed.gov.                     Dated: July 1, 2016.
                                                   will run concurrently with the comment                   Please do not send comments here.                     John B. King, Jr.,
                                                   period of the NPRM. We consider your                                                                           Secretary of Education.
                                                   comments on these collections of                         Intergovernmental Review
                                                                                                                                                                    For the reasons discussed in the
                                                   information in—                                            This program is not subject to
                                                                                                                                                                  preamble, the Secretary of Education
                                                      • Deciding whether the collections                    Executive Order 12372 and the
                                                                                                                                                                  proposes to amend part 200 of title 34
                                                   are necessary for the proper                             regulations in 34 CFR part 79.
                                                                                                                                                                  of the Code of Federal Regulations as
                                                   performance of our functions, including
                                                                                                            Assessment of Educational Impact                      follows:
                                                   whether the information will have
                                                   practical use;                                              In accordance with section 411 of the
                                                                                                                                                                  PART 200—TITLE I—IMPROVING THE
                                                      • Evaluating the accuracy of our                      General Education Provisions Act, 20
                                                                                                                                                                  ACADEMIC ACHIEVEMENT OF THE
                                                   estimate of the burden of the                            U.S.C. 1221e–4, the Secretary
                                                                                                                                                                  DISADVANTAGED
                                                   collections, including the validity of our               particularly requests comments on
                                                   methodology and assumptions;                             whether these proposed regulations                    ■ 1. The authority citation for part 200
                                                      • Enhancing the quality, usefulness,                  would require transmission of                         continues to read as follows:
                                                   and clarity of the information we                        information that any other agency or
                                                   collect; and                                             authority of the United States gathers or               Authority: 20 U.S.C 6301–6576, unless
                                                                                                                                                                  otherwise noted.
                                                      • Minimizing the burden on those                      makes available.
                                                   who must respond.                                           Accessible Format: Individuals with                ■ 2. Section 200.2 is revised to read as
                                                      This includes exploring the use of                    disabilities can obtain this document in              follows:
                                                   appropriate automated, electronic,                       an accessible format (e.g., braille, large
                                                   mechanical, or other technological                       print, audiotape, or compact disc) on                 § 200.2 State responsibilities for
                                                                                                                                                                  assessment.
                                                   collection techniques.                                   request to the person listed under FOR
                                                      OMB is required to make a decision                    FURTHER INFORMATION CONTACT.                             (a)(1) Each State, in consultation with
                                                   concerning the collections of                               Electronic Access to This Document:                its LEAs, must implement a system of
                                                   information contained in these                           The official version of this document is              high-quality, yearly student academic
                                                   regulations between 30 and 60 days                       the document published in the Federal                 assessments that includes, at a
                                                   after publication of this document in the                Register. Free Internet access to the                 minimum, academic assessments in
                                                   Federal Register. Therefore, to ensure                   official edition of the Federal Register              mathematics, reading/language arts, and
                                                   that OMB gives your comments full                        and the Code of Federal Regulations is                science.
                                                   consideration, it is important that OMB                  available via the Federal Digital System                 (2)(i) The State may also measure the
                                                   receives your comments by August 10,                     at: www.gpo.gov/fdsys. At this site you               achievement of students in other
                                                   2016. This does not affect the deadline                  can view this document, as well as all                academic subjects in which the State
                                                   for your comments to us on the                           other documents of this Department                    has adopted challenging State academic
                                                   proposed regulations.                                    published in the Federal Register, in                 standards.
                                                   ADDRESSES: Comments submitted in                         text or Adobe Portable Document                          (ii) If a State has developed
                                                   response to this notice should be                        Format (PDF). To use PDF, you must                    assessments in other subjects for all
                                                   submitted electronically through the                     have Adobe Acrobat Reader, which is                   students, the State must include
                                                                                                                                                                  students participating under subpart A
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                                                   Federal eRulemaking Portal at                            available free at the site.
                                                   www.regulations.gov by selecting                            You may also access documents of the               of this part in those assessments.
                                                   Docket ID ED–2016–OESE–0053 or via                       Department published in the Federal                      (b) The assessments required under
                                                   postal mail commercial delivery or hand                  Register by using the article search                  this section must—
                                                   delivery. Please specify the Docket ID                   feature at: www.federalregister.gov.                     (1)(i) Except as provided in §§ 200.3,
                                                   number and indicate ‘‘Information                        Specifically, through the advanced                    200.5(b), and 200.6(c) and section 1204
                                                   Collection Comments’’ on the top of                      search feature at this site, you can limit            of the Act, be the same assessments
                                                   your comments if your comments relate                    your search to documents published by                 used to measure the achievement of all
                                                   to the information collection for these                  the Department.                                       students; and


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                            44949

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


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                                                   44950                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   student is enrolled must be reported on                     (iii) Is equivalent to or more rigorous            selected, nationally recognized high
                                                   all reports required by § 200.8 and                      than the statewide assessments under                  school academic assessment in place of
                                                   section 1111(h) of the Act.                              § 200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as             the statewide academic assessment
                                                      (d) A State must submit evidence for                  applicable, with respect to—                          under § 200.5(a)(1)(i)(B) and (a)(1)(ii)(C),
                                                   peer review under section 1111(a)(4) of                     (A) The coverage of academic content;              as applicable;
                                                   the Act that its assessments under this                     (B) The difficulty of the assessment;                 (B) Of how parents may provide
                                                   section and §§ 200.3, 200.4, 200.5(b),                      (C) The overall quality of the                     meaningful input regarding the LEA’s
                                                   200.6(c), 200.6(f)(1) and (3), and 200.6(g)              assessment; and                                       request; and
                                                   meet all applicable requirements.                           (D) Any other aspects of the                          (C) Of any effect of such request on
                                                      (e) Information provided to parents                   assessment that the State may establish               the instructional program in the LEA;
                                                   under section 1111(b)(2) of the Act                      in its technical criteria;                            and
                                                   must—                                                       (iv) Meets all requirements under                     (ii) Provide an opportunity for
                                                      (1) Be in an understandable and                       § 200.2(b), except for § 200.2(b)(1), and             meaningful consultation to all public
                                                   uniform format;                                          ensures that all high school students in              charter schools whose students would
                                                      (2) Be, to the extent practicable,                    the LEA are assessed consistent with                  be included in such assessments.
                                                   written in a language that parents can                   §§ 200.5(a) and 200.6; and                               (2) As part of requesting approval to
                                                   understand or, if it is not practicable to                  (v) Produces valid and reliable data               use a locally selected, nationally
                                                   provide written translations to a parent                 on student academic achievement with                  recognized high school academic
                                                   with limited English proficiency, be                     respect to all high school students and               assessment, an LEA must—
                                                   orally translated for such parent; and                   each subgroup of high school students                    (i) Update its LEA plan under section
                                                      (3) Be, upon request by a parent who                  in the LEA that—                                      1112 or section 8305 of the Act,
                                                   is an individual with a disability as                       (A) Are comparable to student                      including to describe how the request
                                                   defined by the Americans with                            academic achievement data for all high                was developed consistent with all
                                                   Disabilities Act (ADA), provided in an                   school students and each subgroup of                  requirements for consultation under
                                                   alternative format accessible to that                    high school students produced by the                  sections 1112 and 8538 of the Act; and
                                                   parent.                                                  statewide assessment;                                    (ii) If the LEA is a charter school
                                                   (Authority: 10 U.S.C. 101(a)(4), (d)(1), and                (B) Are expressed in terms consistent              under State law, provide an assurance
                                                   (d)(5); 20 U.S.C. 1003(24), 6311(a)(4),                  with the State’s academic achievement                 that the use of the assessment is
                                                   6311(b)(2), and 6399(3); 42 U.S.C. 11434a,               standards under section 1111(b)(1)(A) of              consistent with State charter school law
                                                   12102; and 45 CFR 1355(a))                               the Act; and                                          and it has consulted with the authorized
                                                                                                               (C) Provide unbiased, rational, and                public chartering agency.
                                                   ■ 3. Section 200.3 is revised to read as
                                                                                                            consistent differentiation among schools                 (3) Upon approval, the LEA must
                                                   follows:
                                                                                                            within the State for the purpose of the               notify all parents of high school
                                                   § 200.3 Locally selected, nationally                     State-determined accountability system                students it serves that the LEA received
                                                   recognized high school academic                          under section 1111(c) of the Act;                     approval and will use such locally
                                                   assessments.                                                (2) Before approving any nationally                selected, nationally recognized high
                                                      (a) In general. (1) A State, at the                   recognized high school academic                       school academic assessment instead of
                                                   State’s discretion, may permit an LEA to                 assessment for use by an LEA in the                   the statewide academic assessment
                                                   administer a nationally recognized high                  State—                                                under § 200.5(a)(1)(i)(B) and (a)(1)(ii)(C),
                                                   school academic assessment in each of                       (i) Ensure that the use of appropriate             as applicable.
                                                   reading/language arts, mathematics, or                   accommodations under § 200.6(b) and                      (4) In each subsequent year following
                                                   science, approved in accordance with                     (f) does not deny a student with a                    approval in which the LEA elects to
                                                   paragraph (b) of this section, in lieu of                disability or an English learner—                     administer a locally selected, nationally
                                                   the respective statewide assessment                         (A) The opportunity to participate in              recognized high school academic
                                                   under § 200.5(a)(1)(i)(B) and (a)(1)(ii)(C)              the assessment; and                                   assessment, the LEA must notify—
                                                   if such assessment meets all                                (B) Any of the benefits from                          (i) The State of its intention to
                                                   requirements of this section.                            participation in the assessment that are              continue administering such
                                                      (2) An LEA must administer the same                   afforded to students without disabilities             assessment; and
                                                   locally selected, nationally recognized                  or students who are not English                          (ii) Parents of which assessment the
                                                   academic assessment to all high school                   learners; and                                         LEA will administer to students to meet
                                                   students in the LEA consistent with the                     (ii) Submit evidence to the Secretary              the requirements of § 200.5(a)(1)(i)(B)
                                                   requirements in § 200.5(a)(1)(i)(B) and                  in accordance with the requirements for               and (a)(1)(ii)(C), as applicable, at the
                                                   (a)(1)(ii)(C), except for students with the              peer review under section 1111(a)(4) of               beginning of the school year.
                                                   most significant cognitive disabilities                  the Act demonstrating that any such                      (5) The notices to parents under this
                                                   who are assessed on an alternate                         assessment meets the requirements of                  paragraph (c) must be consistent with
                                                   assessment aligned with alternate                        this section; and                                     § 200.2(e).
                                                   academic achievement standards,                             (3) Approve an LEA’s request to use                   (d) Definition. ‘‘Nationally recognized
                                                   consistent with § 200.6(c).                              a locally selected, nationally recognized             high school academic assessment’’
                                                      (b) State approval. If a State chooses                high school academic assessment that                  means an assessment of high school
                                                   to allow an LEA to administer a                          meets the requirements of this section.               students’ knowledge and skills that is
                                                                                                                                                                  administered in multiple States and is
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                                                   nationally recognized high school                           (c) LEA applications. (1) Before an
                                                   academic assessment under paragraph                      LEA requests approval from the State to               recognized by institutions of higher
                                                   (a) of this section, the State must—                     use a locally selected, nationally                    education in those or other States for the
                                                      (1) Establish and use technical criteria              recognized high school academic                       purposes of entrance or placement into
                                                   to determine if the assessment—                          assessment, the LEA must—                             courses in postsecondary education or
                                                      (i) Is aligned with the challenging                      (i) Notify all parents of high school              training programs.
                                                   State academic standards;                                students it serves—                                   (Authority: 20 U.S.C. 6311(b)(2)(H), 6312(a),
                                                      (ii) Addresses the depth and breadth                     (A) That the LEA intends to request                7483, 7918; 29 U.S.C. 794; 42 U.S.C. 2000d–
                                                   of those standards;                                      approval from the State to use a locally              1, 12132)



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                                                                              Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                             44951

                                                   ■ 4. Section 200.4 is amended:                            or nationally recognized high school                  (a)(1)(ii) of this section may be assessed
                                                   ■ a. In paragraph (b)(2)(ii)(B), by                       academic assessment as defined in                     with—
                                                   removing the term ‘‘section                               § 200.3(d) in mathematics that—                          (A) The general assessment under
                                                   1111(b)(2)(C)(v)’’ and adding in its place                   (A) Is more advanced than the                      paragraph (a)(2)(i) of this section; or
                                                   the term ‘‘section 1111(c)(2)’’.                          assessment the State administers under                   (B) An alternate assessment under
                                                   ■ b. In paragraph (b)(2)(ii)(C), by                       paragraph (a)(1)(i)(B) of this section; and           paragraph (c) of this section aligned
                                                   removing the words ‘‘LEAs and’’.                             (B) Provides for appropriate                       with the challenging State academic
                                                   ■ c. In paragraph (b)(3), by removing the                 accommodations consistent with                        content standards for the grade in which
                                                   words ‘‘determine whether the State has                   § 200.6; and                                          the student is enrolled and the State’s
                                                   made adequate yearly progress’’ and                          (ii) The student’s performance on the              alternate academic achievement
                                                   adding in their place the words ‘‘make                    more advanced mathematics assessment                  standards.
                                                   accountability determinations under                       is used for purposes of measuring                        (b) Appropriate accommodations. (1)
                                                   section 1111(c) of the Act’’.                             academic achievement under section                    A State’s academic assessment system
                                                   ■ d. By revising the authority citation at                1111(c)(4)(B)(i) of the Act and                       must provide, for each student with a
                                                   the end of the section.                                   participation in assessments under                    disability under paragraph (a) of this
                                                     The revision reads as follows:                          section 1111(c)(4)(E) of the Act; and                 section, the appropriate
                                                                                                                (4) The State describes in its State               accommodations, such as
                                                   § 200.4    State law exception.                           plan, with regard to this exception, its              interoperability with, and ability to use,
                                                   *      *      *       *       *                           strategies to provide all students in the             assistive technology devices consistent
                                                   (Authority: 20 U.S.C. 6311(b)(2)(E))                      State the opportunity to be prepared for              with nationally recognized accessibility
                                                                                                             and to take advanced mathematics                      standards, that are necessary to measure
                                                   ■ 5. Section 200.5 is revised to read as                                                                        the academic achievement of the
                                                                                                             coursework in middle school.
                                                   follows:                                                                                                        student consistent with paragraph (a)(2)
                                                                                                             (Authority: 20 U.S.C. 6311(b)(2)(B)(v) and
                                                   § 200.5    Assessment administration.                     (b)(2)(C))                                            of this section, as determined by—
                                                                                                                                                                      (i) For each student under paragraph
                                                     (a) Frequency. (1) A State must                         ■ 6. Section 200.6 is revised to read as              (a)(1)(i) and (ii) of this section, the
                                                   administer the assessments required                       follows:                                              student’s IEP team;
                                                   under § 200.2 annually as follows:                                                                                 (ii) For each student under paragraph
                                                     (i) With respect to both the reading/                   § 200.6   Inclusion of all students.
                                                                                                                                                                   (a)(1)(iii)(A) of this section, the student’s
                                                   language arts and mathematics                                A State’s academic assessment system               placement team; or
                                                   assessments—                                              required under § 200.2 must provide for                  (iii) For each student under paragraph
                                                     (A) In each of grades 3 through 8; and                  the participation of all students in the              (a)(1)(iii)(B) of this section, the
                                                     (B) At least once in grades 9 through                   grades assessed under § 200.5(a) in                   individual or team designated by the
                                                   12.                                                       accordance with this section.                         LEA to make these decisions.
                                                     (ii) With respect to science                               (a) Students with disabilities in                     (2) A State must—
                                                   assessments, not less than one time                       general. (1) A State must include                        (i) Develop, disseminate information
                                                   during each of—                                           students with disabilities in all                     to, at a minimum, schools and parents,
                                                     (A) Grades 3 through 5;                                 assessments under section 1111(b)(2) of               and promote the use of appropriate
                                                     (B) Grades 6 through 9; and                             the Act, with appropriate                             accommodations to ensure that all
                                                     (C) Grades 10 through 12.                               accommodations consistent with                        students with disabilities are able to
                                                     (2) With respect to any other subject                   paragraphs (b), (f)(1), and (f)(3)(iv) of             participate in academic instruction and
                                                   chosen by a State, the State may                          this section. For purposes of this                    assessments consistent with paragraph
                                                   administer the assessments at its                         section, students with disabilities,                  (a)(2) of this section; and
                                                   discretion.                                               collectively, are—                                       (ii) Ensure that general and special
                                                     (b) Middle school mathematics                              (i) All children with disabilities as              education teachers, paraprofessionals,
                                                   exception. A State that administers an                    defined under section 602(3) of the                   specialized instructional support
                                                   end-of-course mathematics assessment                      IDEA;                                                 personnel, and other appropriate staff
                                                   to meet the requirements under                               (ii) Students with the most significant            receive necessary training to administer
                                                   paragraph (a)(1)(i)(B) of this section may                cognitive disabilities who are identified             assessments and know how to
                                                   exempt an eighth-grade student from the                   from among the students in paragraph                  administer assessments, including, as
                                                   mathematics assessment typically                          (a)(1)(i) of this section; and                        necessary, alternate assessments under
                                                   administered in eighth grade under                           (iii) Students with disabilities covered           paragraphs (c) and (f)(3)(v) of this
                                                   paragraph (a)(1)(i)(A) of this section if—                under other acts, including—                          section, and know how to make use of
                                                     (1) The student instead takes the end-                     (A) Section 504 of the Rehabilitation              appropriate accommodations during
                                                   of-course mathematics assessment the                      Act of 1973, as amended; and                          assessment for all students with
                                                   State administers to high school                             (B) Title II of the ADA.                           disabilities.
                                                   students under paragraph (a)(1)(i)(B) of                     (2)(i) A student with a disability                    (3) A State must ensure that the use
                                                   this section;                                             under paragraph (a)(1)(i) or (iii) of this            of appropriate accommodations under
                                                     (2) The student’s performance on the                    section must be assessed with an                      this paragraph (b) does not deny a
                                                   high school assessment is used in the                     assessment aligned with the challenging               student with a disability—
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                                                   year in which the student takes the                       State academic standards for the grade                   (i) The opportunity to participate in
                                                   assessment for purposes of measuring                      in which the student is enrolled.                     the assessment; and
                                                   academic achievement under section                           (ii) If a State has adopted alternate                 (ii) Any of the benefits from
                                                   1111(c)(4)(B)(i) of the Act and                           academic achievement standards                        participation in the assessment that are
                                                   participation in assessments under                        permitted under section 1111(b)(1)(E) of              afforded to students without disabilities.
                                                   section 1111(c)(4)(E) of the Act;                         the Act for students with the most                       (c) Alternate assessments aligned with
                                                     (3) In high school—                                     significant cognitive disabilities, a                 alternate academic achievement
                                                     (i) The student takes a State-                          student with the most significant                     standards for students with the most
                                                   administered end-of-course assessment                     cognitive disabilities under paragraph                significant cognitive disabilities. (1) If a


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                                                   44952                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                   State has adopted alternate academic                        (A) The number and percentage of                   than 1.0 percent of its assessed students
                                                   achievement standards permitted under                    students in each subgroup of students                 in a subject in a school year using an
                                                   section 1111(b)(1)(E) of the Act for                     defined in section 1111(c)(2)(A), (B),                alternate assessment aligned with
                                                   students with the most significant                       and (D) of the Act who took the                       alternate academic achievement
                                                   cognitive disabilities, the State must                   alternate assessment aligned with                     standards, and any other LEA that the
                                                   measure the achievement of those                         alternate academic achievement                        State determines will significantly
                                                   students with an alternate assessment                    standards; and                                        contribute to the State’s exceeding the
                                                   that—                                                       (B) The State has measured the                     cap under paragraph (c)(2) of this
                                                      (i) Is aligned with the challenging                   achievement of at least 95 percent of all             section, to ensure that only students
                                                   State academic content standards under                   students and 95 percent of students in                with the most significant cognitive
                                                   section 1111(b)(1) of the Act for the                    the children with disabilities subgroup               disabilities take an alternate assessment
                                                   grade in which the student is enrolled;                  under section 1111(c)(2)(C) of the Act                aligned with alternate academic
                                                      (ii) Yields results for those students                who are enrolled in grades for which the              achievement standards. The State must
                                                   relative to the alternate academic                       assessment is required under § 200.5(a);              describe how it will monitor and
                                                   achievement standards; and                                  (iii) Include assurances from the State            regularly evaluate each such LEA to
                                                      (iii) At the State’s discretion, provides             that it has verified that each LEA that               ensure that the LEA provides sufficient
                                                   valid and reliable measures of student                   the State anticipates will assess more                training such that school staff who
                                                   growth at all alternate academic                         than 1.0 percent of its assessed students             participate as members of an IEP team
                                                   achievement levels to help ensure that                   in any subject for which assessments are              or other placement team understand and
                                                   the assessment results can be used to                    administered under § 200.2(a)(1) in that              implement the guidelines established by
                                                   improve student instruction.                             school year using an alternate                        the State under paragraph (d) of this
                                                      (2) For each subject for which                        assessment aligned with alternate                     section so that all students are
                                                   assessments are administered under                       academic achievement standards, and                   appropriately assessed; and
                                                   § 200.2(a)(1), the total number of                       any other LEA that the State determines                  (C) The State will address any
                                                   students assessed in that subject using                  will significantly contribute to the                  disproportionality in the number and
                                                   an alternate assessment aligned with                     State’s exceeding the cap under                       percentage of students taking an
                                                   alternate academic achievement                           paragraph (c)(2) of this section—                     alternate assessment aligned with
                                                   standards under paragraph (c)(1) of this                    (A) Followed each of the State’s                   alternate academic achievement
                                                   section may not exceed 1.0 percent of                    guidelines under paragraph (d) of this                standards as identified through the data
                                                   the total number of students in the State                section, including criteria in paragraph              provided in accordance with paragraph
                                                   who are assessed in that subject.                        (d)(1)(i) through (iii) except paragraph              (c)(4)(ii)(A) of this section; and
                                                      (3) A State must—                                     (d)(6);
                                                                                                                                                                     (v) If the State is requesting to extend
                                                      (i) Not prohibit an LEA from assessing                   (B) Will not significantly increase,
                                                                                                                                                                  a waiver for an additional year, meet the
                                                   more than 1.0 percent of its assessed                    from the prior year, the extent to which
                                                                                                                                                                  requirements in paragraph (c)(4)(i)
                                                   students in a given subject with an                      the LEA assessed more than 1.0 percent
                                                                                                                                                                  through (iv) and demonstrate substantial
                                                   alternate assessment aligned with                        of students in any subject for which
                                                                                                                                                                  progress towards achieving each
                                                   alternate academic achievement                           assessments were administered under
                                                                                                                                                                  component of the prior year’s plan and
                                                   standards;                                               § 200.2(a)(1) in that school year using an
                                                                                                                                                                  timeline required under paragraph
                                                      (ii) Require that an LEA submit                       alternate assessment aligned with
                                                                                                                                                                  (c)(4)(iv) of this section.
                                                   information justifying the need of an                    alternate academic achievement
                                                   LEA to assess more than 1.0 percent of                   standards unless the LEA has                             (5) A State must report separately to
                                                   its assessed students in an assessed                     demonstrated to the State a higher                    the Secretary, under section 1111(h)(5)
                                                   subject with such an alternate                           prevalence of students with the most                  of the Act, the number and percentage
                                                   assessment;                                              significant cognitive disabilities than               of children with disabilities under
                                                      (iii) Provide appropriate oversight, as               were enrolled in assessed grades in the               paragraph (a)(1)(i) and (ii) of this section
                                                   determined by the State, of an LEA that                  prior year; and                                       taking—
                                                   is required to submit information to the                    (C) Will address any                                  (i) General assessments described in
                                                   State; and                                               disproportionality in the number and                  § 200.2;
                                                      (iv) Make the information submitted                   percentage of students in any particular                 (ii) General assessments with
                                                   by an LEA under paragraph (c)(3)(ii) of                  subgroup under section 1111(c)(2)(A),                 accommodations; and
                                                   this section publicly available, provided                (B), or (D) of the Act taking an alternate               (iii) Alternate assessments aligned
                                                   that such information does not reveal                    assessment aligned with alternate                     with alternate academic achievement
                                                   personally identifiable information                      academic achievement standards;                       standards under this paragraph (c).
                                                   about an individual student.                                (iv) Include a plan and timeline by                   (6) A State may not develop, or
                                                      (4) If a State anticipates that it will               which—                                                implement for use under this part, any
                                                   exceed the cap under paragraph (c)(2) of                    (A) The State will improve the                     alternate or modified academic
                                                   this section with respect to any subject                 implementation of its guidelines under                achievement standards that are not
                                                   for which assessments are administered                   paragraph (d) of this section, including              alternate academic achievement
                                                   under § 200.2(a)(1) in any school year,                  by reviewing and, if necessary, revising              standards for students with the most
                                                   the State may request that the Secretary                 its definition under paragraph (d)(1) of              significant cognitive disabilities that
                                                                                                                                                                  meet the requirements of section
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                                                   waive the cap for the relevant subject,                  this section, so that the State meets the
                                                   pursuant to section 8401 of the Act, for                 cap in paragraph (c)(2) of this section in            1111(b)(1)(E) of the Act.
                                                   one year. Such request must—                             each subject for which assessments are                   (7) For students with the most
                                                      (i) Be submitted at least 90 days prior               administered under § 200.2(a)(1) in                   significant cognitive disabilities, a
                                                   to the start of the State’s first testing                future school years;                                  computer-adaptive alternate assessment
                                                   window;                                                     (B) The State will take additional                 aligned with alternate academic
                                                      (ii) Provide State-level data, from the               steps to support and provide                          achievement standards must—
                                                   current or previous school year, to                      appropriate oversight to each LEA that                   (i) Assess a student’s academic
                                                   show—                                                    the State anticipates will assess more                achievement based on the challenging


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                           44953

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


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                                                   44954                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

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


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                                                                             Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                                    44955

                                                   end of the eighth grade, the achievement                   (4) Students with status as a student                   (Authority: 20 U.S.C. 6311(b)(2)(B)(x) and
                                                   of each student enrolled in such a                       with a parent who is a member of the                      (xii))
                                                   school or program in meeting the                         armed forces on active duty.                              ■  8. Section 200.9 is amended:
                                                   challenging State academic standards in                  (Authority: 20 U.S.C. 1400 et seq. and                    ■  a. By revising paragraph (a).
                                                   reading/language arts.                                   6311(b)(2); 25 U.S.C. 2902; 29 U.S.C. 794; 42             ■  b. In paragraph (b), by removing the
                                                      (h) Definition. For the purpose of this               U.S.C. 2000d–1, 11434a, and 12132; 34 CFR                 term ‘‘section 6113(a)(2)’’ and adding in
                                                   section, ‘‘Native American’’ means                       300.5)                                                    its place the term ‘‘section 1002(b)’’.
                                                   ‘‘Indian’’ as defined in section 6151 of                 ■ 7. Section 200.8 is amended:                            ■ c. By revising the authority citation at
                                                   the Act, which includes Alaska Native                    ■ a. In paragraph (a)(2)(i), by adding the                the end of the section.
                                                   and members of federally recognized or                   word ‘‘and’’ following the semicolon.                        The revisions read as follows:
                                                   state-recognized tribes; Native                          ■ b. In paragraph (a)(2)(ii), by removing
                                                                                                            the words ‘‘including an alternative                      § 200.9    Deferral of assessments.
                                                   Hawaiian; and Native American Pacific
                                                   Islander.                                                format (e.g., Braille or large print) upon                  (a) A State may defer the start or
                                                                                                            request; and’’ and adding in their place                  suspend the administration of the
                                                      (i) Highly mobile students. The State                                                                           assessments required under § 200.2 for
                                                                                                            the words ‘‘consistent with § 200.2.’’
                                                   must include in its assessment system                    ■ c. By removing paragraph (a)(2)(iii).                   one year for each year for which the
                                                   the following highly mobile student                      ■ d. In paragraph (b)(1), by removing the                 amount appropriated for State
                                                   populations as defined in § 200.2(b)(11):                term ‘‘§ 200.2(b)(4)’’ and adding in its                  assessment grants under section 1002(b)
                                                      (1) Students with status as a migratory               place the term ‘‘§ 200.2(b)(13)’’.                        of the Act is less than $369,100,000.
                                                   child.                                                   ■ e. By revising the authority citation at                *     *     *     *     *
                                                      (2) Students with status as a homeless                the end of the section.
                                                                                                              The revision reads as follows:                          (Authority: 20 U.S.C. 6302(b), 6311(b)(2)(I),
                                                   child or youth.                                                                                                    6363(a))
                                                      (3) Students with status as a child in                § 200.8    Assessment reports.                            [FR Doc. 2016–16124 Filed 7–6–16; 4:15 pm]
                                                   foster care.                                             *      *         *       *       *                        BILLING CODE 4000–01–P
sradovich on DSK3GDR082PROD with PROPOSALS2




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Document Created: 2016-07-09 00:21:21
Document Modified: 2016-07-09 00:21:21
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of proposed rulemaking.
DatesWe must receive your comments on or before September 9, 2016.
ContactJessica McKinney, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W107, Washington, DC 20202. Telephone: (202) 401-1960 or by email: [email protected]
FR Citation81 FR 44927 
RIN Number1810-AB32
CFR AssociatedEducation of Disadvantaged; Elementary and Secondary Education; Grant Programs-Education; Indians-Education; Infants and Children; Juvenile Delinquency; Migrant Labor; Private Schools and Reporting and Recordkeeping Requirements

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