Final Rules Allow Alternate Assessments

By Lisa Goldstein — December 10, 2003 5 min read
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The Department of Education has issued final regulations clarifying how to test students with the most severe cognitive disabilities and include those results in schools’ performance ratings.

“Title I--Improving the Academic Achievement of the Disadvantaged; Final Rule,” from the Federal Register.

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

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 in January 2002. The No Child Left Behind 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.

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

Under the regulations published in the Dec. 9 Federal Register, states and districts can develop 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 alternate achievement standards and have their scores counted as “proficient” or “advanced” for meeting the federal mandate of showing “adequate yearly progress,” or AYP.

Without the Education Department’s clarification, the test scores of such students would have to be measured against grade-level standards and considered “not proficient.”

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.

“We are pleased to have clarification on how to proceed,” Ross Wiener, the policy director for the Washington-based research and advocacy group Education Trust, said in an interview about the final regulations. “The rules have now become official. They are very similar to what had been talked about all along.”

‘Valuable Information’

Education Department officials were joined at a Dec. 9 press conference by Rep. John A. Boehner, R-Ohio, chairman of the House Education and the Workforce Committee and Eunice Kennedy Shriver, the founder of the Special Olympics and a longtime champion of people with disabilities.

“The new provision will ensure that schools receive credit for the progress of all students, including students with the most significant cognitive disabilities,” said Secretary of Education Rod Paige. “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.”

Rep. Boehner said he thought the regulations would help the school-improvement law have a profound impact on students with disabilities. “I believe years from now we will look back on the No Child Left Behind Act as the law that did the most for students with disabilities,” said Rep. Boehner. “Even more than [the Individuals with Disabilities Education Act], which results in mountains of paperwork … instead of focusing in on student achievement.”

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

Under the final rules, states can now define for themselves whom to count as “students with the most significant cognitive disabilities.” In March, the department had proposed defining the category as including such students with disabilities whose intellectual functioning and adaptive behavior are three or more standard deviations below the mean.

The final regulations also permit states to give some students with disabilities out-of-level assessments, or tests designed for a grade level 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.

The rules also provide more specific guidance on what an “alternate assessment” should look like. Here’s how the department elaborates:

  • An alternate assessment may include materials collected under several circumstances, including: teacher observation of the student; samples of student work that demonstrates mastery of specific instructional strategies; or standardized performance tasks produced in an on- demand setting, such as completion of an assigned task on test day.
  • For Title I purposes, an alternate assessment must be aligned with the state’s content standards, must yield results separately in both reading/language arts and mathematics, and must be designed and implemented in a manner that supports use of the results as an indicator of adequate yearly progress.
  • As part of the state assessment program, alternate assessments should have a clearly defined structure, guidelines for which students may participate, clearly defined scoring criteria and procedures, and a report format that clearly communicates student performance in terms of the academic achievement standards defined by the state.


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