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NEA analysis of the regulations

April 17, 2007

U.S. Department of Education's Final Regulations on Assessing Students With Disabilities under the No Child Left Behind Act and the Individuals With Disabilities Education Act

On Wednesday, April 4, 2007, the U.S. Department of Education (USED) announced the release of the final regulations for the so-called 2% assessment rule. These regulations define the use of modified academic achievement standards for students with disabilities and how alternate assessment results based on such standards may be used for AYP purposes. The final regulations, published in the Federal Register on April 9, 2007, follow an announcement about the proposed 2% rule originally issued by the USED in December 2005. The new rules take effect on May 9, 2007.

The final regulations are substantially the same as the draft rules that were proposed in December 2005. Notably, some elements of the final regulations are in agreement with NEA's recommendations for ESEA/NCLB reauthorization. Those items are indicated below by bold text that is marked by an asterisk (*) .

The key aspects of the final regulations on alternate assessments based on modified academic achievement standards are explained below in response to these critical questions:

What do the final rules allow states to do?

States must ensure that all students with disabilities are appropriately assessed and must provide at least ONE alternate assessment (unless all students with disabilities can be appropriately assessed with the general assessment that is used for all students).

States are not required to develop alternate assessments based on modified achievement standards (see Appendix A of the Guidance issued by USED) as long as they have at least one alternate assessment option.

The final regulations allow states to:

How do these regulations relate to AYP calculations?

There is no limit on the number of students who may take an alternate assessment based on modified achievement standards. However, the proficient and advanced scores of students who take these assessments count toward AYP so long as the number of those proficient and advanced scores at the state and district level separately does not exceed 2% of all students in the grades assessed. Additional test scores above the 2% cap are considered "non-proficient" scores. (See page 17,779-17,780 of the Federal Register.)

Here are other important changes that relate to AYP calculations:

Note: NEA opposes the 1% and 2% caps and believes the IEP team's determinations regarding which students should take which assessments and whether proficient scores from such assessments count toward AYP should not be artificially limited by federal percentage caps.

Who can take the alternate assessments based on modified standards?

The USED suggests that the alternate assessments based on modified standards are appropriate for a "small group of students" who do not have significant cognitive disabilities but whose disabilities have precluded them from achieving grade-level proficiency and their progress "is such that they will not reach grade-level proficiency in the same time frame as other students." For these students, the alternate assessment based on alternate academic achievement standards is not appropriate and the grade-level assessment is too difficult.

The USED emphasized these points:

Who decides whether a student will take the alternate assessment based on modified standards?

What are the assessments that students with disabilities may now take?

What is the difference between alternate assessments based on alternate academic achievement standards (a.k.a. alternate assessments based on alternate standards) and alternate assessments based on modified academic achievement standards?

First, a quick explanation of the different types of standards that are mentioned in the regulations:

These two statements are taken directly from the regulations:

What resources are available to help states develop these assessments?

The USED will host a meeting for interested states in July 2007 to discuss the development of these standards. We suggest that state officiates ask their state departments of education to include an Association representative as part of the state's team. States may use funds from Title I, Title VI State Assessment Grants and IDEA to develop these new assessments:

Since these regulations become effective May 9, 2007, and are intended to affect assessments given in the 2008-2009 school year, what can states do in the interim?

The regulations provide transition authority over the interim flexibility allowing two years for states to put the assessments in place (the 2008-09 school year). States that expressed an interest in developing modified achievement standards and assessments based on those standards after the December 2005 announcement were granted flexibility during the time that the USED was drafting the final regulations. This interim flexibility will be extended to those states that can demonstrate that they are moving toward adopting alternate assessments based on modified standards.

For more information about the "interim flexibility" see these resources:

Adequate Yearly Progress and Modified Achievement Standards: Interim State Policy Options, May 10, 2005
Accountability for Students with Disabilities: Accountability Plan Amendments for 2004-05

What other significant changes are included in the final regulations?