Published Online: July 25, 2006
Published in Print: July 26, 2006, as Dept. Mum on Rules for Special Ed.Testing

Dept. Mum on Rules for Special Ed.Testing

States seek extension of interim flexibility for 2 percent of test-takers.

The U.S. Department of Education said last week that it has yet to decide whether to extend an interim policy that allows states to adjust test scores for certain students with disabilities who are believed to be able to meet grade-level standards, but at a pace slower than their peers.

States have pressed for an extension of the policy, which was put in place as the department developed No Child Left Behind Act regulations for testing the 2 percent of all students that it estimates should be taking modified tests based on grade-level standards that aren’t as broad and deep as those for the general student population.

States have been permitted to use a proxy measure for the 2004-05 and 2005-06 school years in exchange for agreeing to develop modified tests based on the regulations, which are still not final. Among those requesting an extension of the interim policy during the department’s 75-day comment period on the proposed rules were the Council of Chief State School Officers and the National Association of State Directors of Special Education.

Darla A. Marburger, the department’s deputy assistant secretary for policy, said that a decision had not yet been made on whether interim flexibility would be extended for the 2006-07 school year.

“There are a lot of factors we would have to consider,” she said in a July 19 interview.

Ms. Marburger said the lack of final regulations has not deterred some states from developing modified tests. Not all state officials agree, however.

Despite the work that some states are doing to devise assessments, “these efforts cannot responsibly proceed beyond a certain point until final regulations are issued,” G. Thomas Houlihan, the CCSSO’s executive director, wrote in a Feb. 28 letter to the Education Department.

“Up to now, states have not been given sufficient guidance on acceptable methods of assessing these students,” said Bill East, the executive director of NASDSE, based in Alexandria, Va., in a letter to the department that also was dated Feb. 28. “Until these regulations are finalized, states are reluctant to begin a difficult and costly process that may have to be changed if the final regulations vary significantly” from the proposed rules.

Contentious Issue

The federal No Child Left Behind Act requires that students be tested annually in reading and mathematics in grades 3-8, and once in high school. Test scores must be broken out by various subgroups, including for students with disabilities, and schools must make yearly progress toward 100 percent proficiency in all subgroups by the 2013-14 school year.

How to appropriately test students with disabilities and include such scores in making judgments about schools has been one of the most contentious issues of the 4½-year-old law. Since its passage, the Education Department has issued a series of letters, guidelines, and regulations that now permit nearly one-third of special education students to take exams other than the regular state tests for their grade levels and have those scores count as proficient.

For some states, using the so-called 2 percent rule meant more of their schools made adequate yearly progress, or AYP, under the law because their passing rates for the students-with-disabilities subgroup rose.

The 2 percent flexibility policy was announced in April 2005 and made effective immediately, with regulations to follow. The proposed regulations that would codify the policy were issued in December. Since then, the Education Department has been working on incorporating public comments into its final regulations.

Level of Expectations

The department already has a separate testing policy under the No Child Left Behind law for students with severe cognitive disabilities, which applies to 1 percent of the school-age population, or 10 percent of all students with disabilities. Those students take alternate assessments based on alternate standards.

Many state testing systems have yet to receive full approval from the federal government, in part because they have yet to provide sufficient evidence that those alternate assessments meet technical standards for quality or are adequately aligned with state content standards.

A review of comments submitted on the proposed 2 percent testing-flexibility regulations reveal some other challenges facing the department, as well as states, in implementing the policy. Educators in several states have suggested that the policy may not help students with disabilities who do not receive grade-level instruction in reading and math.

The proposed regulations, like the current interim policy, would bar states from administering out-of-level tests as a way to meet the goals of the policy, such as giving a 3rd grade reading test to a 6th grade student.

“The proposed requirement that the modified standards be aligned with grade-level standards, even with reduced breadth and depth, continues to omit this group of students from meaningful participation in a statewide accountability system,” Patricia I. Wright, the acting superintendent of public instruction in Virginia, said in a February letter to the Education Department.

Shirley J. Neeley, the commissioner of education in Texas, said that “if the intent of these proposed regulations is to provide flexibility regarding students ‘adjacent’ to the students with the most significant cognitive disabilities, then the proposed regulations do not address their needs.”

But federal officials feel strongly that out-of-level assessments are not appropriate, Kerri L. Briggs, a senior policy adviser in the Education Department, said in an interview last month. The goal is to allow as many students as possible access to the general curriculum, she said.

Many representatives of disability-rights organizations told the department that they fear that the policy allows too many children with disabilities to take assessments that are easier than those given to the general student population, without teachers seeing if the special education population can achieve at a higher level.

“We still don’t know which kids this is supposed to be for,” said Katherine Beh Neas, the Washington-based director of congressional affairs for Easter Seals, a disability-advocacy organization headquartered in Chicago.

‘Change the Teaching’

Rachel F. Quenemoen, a senior research fellow at the National Center on Educational Outcomes at the University of Minnesota-Twin Cities, testified about the testing of students with disabilities under the No Child Left Behind law earlier this month before the House Education and the Workforce Committee.

“What we hear from states is that the [2 percent flexibility policy] wasn’t clear on who the students should be or what the modified-achievement standard should reflect,” Ms. Quenemoen said in an e-mail message after her testimony.

The organization has advised states to “drill” into testing data to find out just who the lowest-achieving students are. States who have studied the issue are finding that the lowest-performing students also include students who are poor or members of racial and ethnic minorities, in addition to students with disabilities, Ms. Quenemoen said.

“Given the cost of developing [modified assessments], and uncertainty about who the students are who would clearly benefit from such a test, it seems to make more sense to put the money into staff development so that teachers know how to intervene when students aren’t learning as they should,” Ms. Quenemoen said. “In other words, change the teaching, not the testing.”

Vol. 25, Issue 43, Pages 27,30

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