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Published in Print: January 7, 2004, as Long-Awaited Spec. Ed. Testing Rules Issued

Long-Awaited Spec. Ed. Testing Rules Issued

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New rules issued by the Department of Education will make it easier for states to test students with the most severe cognitive disabilities and include those results in schools' performance ratings.

For More Info
The text of the final regulations is available from the Education Department.

Educators have long clamored for guidance in handling the test scores of students with the most profound disabilities, who may function well below the grade levels of their peers without such disabilities.

"It's a relief that it is out," said Martha Thurlow, the director of the National Center on Educational Outcomes, a group based at the University of Minnesota in Minneapolis that promotes the participation of students with disabilities in national and state assessments and graduation requirements. "There were things that confused people, and now they are clarified."

Congress did not address the issue in the No Child Left Behind Act, the reauthorization of the Elementary and Secondary Education Act that President Bush signed into law two years ago. The law holds states, school districts, and schools accountable for raising the achievement of all students.

Educators and advocates for students with disabilities have stressed the need for holding schools accountable for teaching students with disabilities to the highest standards possible, while not unfairly holding their test scores against schools or districts if they cannot take grade-level standards-based assessments.

Under the regulations published in the Dec. 9 Federal Register, states and districts can devise alternate assessments pegged to other than a grade-level standard and use them to test students with special needs who cannot take the grade-level tests even with accommodations.

However, only up to 1 percent of students in the grade levels tested could take tests based on alternative achievement standards and have their scores counted as "proficient" or "advanced" for meeting the federal mandate of showing "adequate yearly progress," or AYP.

If states exceed the 1 percent cap, they must decide which "proficient" scores of students who took the alternate assessments to count as proficient for purposes of AYP and which to count as not proficient.

Under the regulations, states can apply to the federal government, and districts can apply to their states, to exceed the 1 percent cap, if they can demonstrate that they have larger populations of students with the most significant cognitive disabilities and have effectively designed and implemented assessment practices for students with disabilities.

Concern in Oregon

Secretary of Education Rod Paige said he hoped the new rules would help both educators and students.

Secretary Paige leaving the news conference.

Secretary of Education Rod Paige, center, is ushered off stage by Eugene W. Hickok following Paige's Dec. 9 news conference unveiling final regulations addressing students with disabilities under the No Child Left Behind Act. Rep. John A. Boehner, R-Ohio, left, talks with a reporter.
—Photograph by James W. Prichard/Education Week

"The new provision will ensure that schools receive credit for the progress of all students, including students with the most significant cognitive disabilities," Mr. Paige said at a Dec. 9 press conference held to release the rules. "At the same time, this new provision ensures that students with disabilities will be included in the accountability systems that provide valuable information to parents and educators."

What the regulations did not contain had one state assessment official concerned. Patricia Almond, an evaluation specialist in the office of assessment and evaluation in the Oregon education department, said the regulations did not clarify how to count test scores in a meaningful way for the students themselves.

"They didn't discuss students, only how scores counted in determining AYP," Ms. Almond said. "It's designed for accountability measures at the school and district level.

"It would be more meaningful for the student and teachers to know how the student performed against standards," she continued, "and their personal improvement in specific areas."

Ms. Almond said the law's focus on accountability might tempt educators to avoid dealing with difficult students receiving special education.

"The thing I worry about are the unintended consequences—that people will see the kids as a problem," she said. "If the students bring down their [schools'] scores, a principal may say, 'I am never going to have one of those classrooms in my school again.'"

The 1 Percent Dilemma

The Education Department released a draft version of the special education regulations on March 20 of last year. At least one significant change has been made since then.

Under the final rules, states can now define for themselves whom to count as "students with the most significant cognitive disabilities." Last March, the department had proposed defining the category as including such students with disabilities whose intellectual functioning and adaptive behavior were three or more standard deviations below the mean based on nationally normed tests of intellectual ability along with observations about abilities to function in daily life.

But one state assessment official said the increased flexibility on the definition was a disadvantage.

Carol Ann Baglin, the assistant state superintendent for special education and early-intervention services in the Maryland education department, said the freedom to define for themselves which students fall into the category of those with the most significant cognitive disabilities would encourage states to define too broad a range of students. They would then have to whittle the number down to meet the 1 percent quota, she added.

"It's a dilemma to be left with a potentially larger group, but be able to count only 1 percent," she said. "Everybody knew what three standard deviations meant. Students either tested in that group or not. This definitely will not be as exclusive as that group."

The regulations also permit states to give some students with disabilities out-of-level assessments, or tests designed for grade levels below the ones in which the students are enrolled. But the rules specify that all students taking out-of-level tests must be counted toward the 1 percent cap.

Moreover, the tests can be used in AYP calculations only if they are aligned with the state's academic-content standards, promote access to the general curriculum, and reflect professional judgment of the highest achievement standards possible, according to the new regulations.

Vol. 23, Issue 16, Pages 27,29

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