Agency Documents Clarify Spec. Ed. Assessment Leeway

By Lynn Olson — March 26, 2003 7 min read
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When it comes to testing, “all” means all. That’s the message behind draft guidance on standards and assessments released last week by the Department of Education to help states comply with the “No Child Left Behind” Act of 2001.

But proposed regulations also published last week acknowledge that up to 1 percent of students may have such significant cognitive disabilities that holding them to the same achievement standards as other students on state tests would be inappropriate.

The draft guidelines on implementing the proposed regulations, as well as state accountability plans, are available from the Education Department’s Office of Elementary and Secondary Education.

The long-awaited regulations, published March 20 in TheFederal Register, do not limit the number of special-needs students who can take alternative assessments, designed for pupils who cannot take the regular state tests even with accommodations.

Rather, the proposed rules would limit the percent of students taking alternative tests who could be held to other than a grade-level standard when determining whether schools and districts had met their performance targets under the law.

Together, the guidance and the proposed regulations are meant to address one of the most difficult issues in the act: how to include all students with disabilities and limited English proficiency in state testing and accountability systems.

Because of failures to adequately include special-needs and LEP students in testing and reporting systems, many states are still under waivers of the timeline for complying with the 1994 version of the Elementary and Secondary Education Act. The No Child Left Behind Act is the latest version of the ESEA.

Moreover, many of the accountability plans states filed with the federal government by Jan. 31, as required under the new law, did not specify how the states would incorporate scores from alternative assessments into their accountability systems, pending the federal regulations released last week.

Also last week, Mississippi became the sixth state to have its accountability plan approved by Secretary of Education Rod Paige. Mississippi is the first state to gain such approval since President Bush announced approval of plans from Colorado, Indiana, Ohio, Massachusetts, and New York on Jan. 8.

By late last week, the Department of Education had conducted “peer reviews” of the accountability plans from 33 states, and 44 states had had informal meetings with senior department officials to discuss their plans.

The 1 Percent Rule

In a notice of proposed rulemaking last summer, the department had proposed limiting the percent of special-needs students who could be held to other than a grade-level standard to 0.5 percent of the total student population.

But many people expressed concern that the figure was too low. In particular, they worried that small rural districts could easily exceed that limit if they had even a few students with severe cognitive disabilities. Others argued that the provision would be unfair to districts with large populations of students with disabilities and to schools with programs specifically designed to serve such students.

Of the 38 states that provided such data to the federal government in 2000-01, 21 had 5 percent or fewer of students with disabilities who participated in state testing take alternative assessments, or about 0.5 percent of all students. But 14 other states had between 5 percent and 10 percent of students with disabilities who took such tests.

The proposed rules would require that states report separately on the percentage of students with disabilities who take alternative assessments measured against the regular achievement standards for their grades, and the percent who take alternative assessments that are measured against different achievement standards.

States could request from the U.S. secretary of education, and districts from their states, exceptions to the 1 percent cap. Such requests would have to document that the incidence of students with severe cognitive disabilities exceeded the limit and explain why.

For example, a school, community, or health program in the district might have drawn families of students with severe cognitive disabilities into the area.

The law requires that at least 95 percent of students with disabilities enrolled in a school at the time of testing are, in fact, assessed for a school to be judged as having made adequate progress under the law. The draft rules specify that students who take alternative tests measured against an alternative achievement standard would be counted as “participating” in the state testing system, and thus be included in determining compliance with the 95 percent rule.

Individuals have 30 days to comment on the draft rules.

The notice of proposed rulemaking also asks for comments on how the scores of students who take tests multiple times should be counted in determining whether schools or districts have made adequate yearly progress.

The Education Department has proposed that states be required to use the students’ results from the first test administration to determine adequate progress. But some states have asserted that, particularly for high school students who are allowed to retake graduation tests multiple times, only their score in 12th grade should be counted. Students’ scores typically rise as they retake state exams.

“Although there may be very sound reasons for permitting a student to take high-stakes assessments multiple times, we believe that a student’s performance on the first administration best reflects the performance of the school in preparing the student to take the assessment,” the department states. But it invites comment on whether the proposed rule should be amended and, if so, how.

The draft guidance notes that states may use end-of-course tests at the high school level to meet the testing requirements, as long as all students are required to take the course to graduate, and the test measures content the state expects all students to know by the time they graduate.

No Exemptions

Just as the Education Department is now reviewing state plans for complying with the accountability provisions under the No Child Left Behind Act, it eventually will have to review their plans for complying with the law’s standards and testing provisions.

The draft guidance on standards and assessments largely reflects earlier regulations published in TheFederal Register on July 5 and Dec. 2. The department plans to release a more detailed “technical addendum” and peer-review guidance on standards and assessments at an unspecified later date.

The guidance specifies that states, districts, and schools “must assess all students,” regardless of whether a student is to be included for reporting or accountability purposes under the law, and regardless of how much time the student has been enrolled in the state, district, or school.

“All public school students present in the state on the days on which state assessments are administered are expected to take state assessments,” it says.

According to the document, the teams that devise individualized education plans for special-needs students cannot exempt students from state or district tests, although they may determine how students participate in such exams.

The guidance also reiterates that states must include all LEP students in their testing systems as soon as the students enroll in school. “No exemptions are permitted based on level of English proficiency,” it says.

The guidance advises states to design their testing systems from the outset to be “valid and accessible for use by the widest possible range of students,” including those with disabilities and limited English skills.

The law also reiterates that students with disabilities may not be given “out of level” tests to measure their performance. Such tests assess students enrolled in one grade level using tests that were designed for another, typically lower, grade level.

Such testing is not appropriate, the guidance argues, because the law requires students with disabilities be held to the content and achievement standards for the grades in which the students are enrolled. The one exception is the proposed 1 percent rule.

The draft guidance also spells out the timelines for states to submit evidence to the federal government that their tests and standards comply with the law. The law requires that by 2005-06, states test all students in reading and mathematics in grades 3-8 and at least once in high school.

By 2007-08, states also must test students in science at least once in each of three grade groupings: 3-5, 6-9, and 10-12.

States must include a detailed plan for meeting both deadlines in their final consolidated state applications, due to the federal government on May 1. States must submit evidence that they have achievement standards defining at least three levels of achievement in reading and math—"basic,” “proficient,” and “advanced"—in the required grades by December 2006; and in science, by December 2008.


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