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NEA 'IDEA Brief' #2

NEA members ask:

What testing is allowed under the
Elementary and Secondary Education Act (ESEA/NCLB) for students with disabilities?


What does the federal law say about testing students with disabilities?

Under the Elementary and Secondary Education Act or "No Child Left Behind" Act (ESEA/NCLB), all students -– including students with disabilities (SwD) -– must be tested annually using statewide assessments in reading and math in grades 3 -8 and at least once in high school.  SwD must be included in all aspects of state assessment and accountability systems.  Their performance, as a subgroup, must be disaggregated and reported at the state, district, and school levels.  All students, including SwD, need to show "adequate yearly progress (AYP)" toward meeting the state's proficiency goals.  By the 2013-2014 school year, 100 percent of students, including SwD, must be proficient in reading and math.

Historically, SwD have been excluded from state and local assessment and accountability systems.  Even though the 1997 Amendments to the Individuals with Disabilities Education Act (IDEA ‘97) required that SwD be included in state accountability systems, many states did not comply.1  IDEA’97 also required states to develop, by July 2000, alternate assessments for students who cannot be appropriately assessed using the regular assessments.  Nonetheless, some states still have not implemented alternate assessments for SwD.2

I’m confused about which tests students with disabilities are allowed to take for ESEA/NCLB purposes.  What does the law say?

ESEA/NCLB is actually silent about what tests SwD must take, deferring to IDEA requirements.   On December 9, 2003, the U.S. Department of Education (USED) issued its final rule regarding assessing SwD under ESEA/NCLB.  Effective as of January 8, 2004, this regulation covers what tests SwD may take and how to count them for AYP.  The full text of the regulation is available online at the Federal Register Web site.

What does the final USED regulation say about SwD?

SwD may take the 1) regular grade-level assessment, 2) regular assessment with accommodations, 3) alternate assessment based on grade-level achievement standards, or 4) alternate assessment based on alternate achievement standards.  Instructional level testing (or "out-of-level testing") is now allowed as an alternate assessment based on alternate standards.  States may use alternate assessments, and alternate assessments based on alternate achievement standards, for students with "significant cognitive disabilities" in their AYP calculations.  Each state must define which students are included under "significant cognitive disabilities."  

There is no limit on the number of students who can take alternate assessments based on alternate achievement standards; however, the number of proficient or advanced scores that are counted toward meeting AYP may not exceed 1% of all students in the district for the grades tested. 

What are alternate assessments and alternate standards?

Alternate assessments are different ways to measure student achievement used with SwD who cannot take the regular statewide assessments, even with accommodations.  Examples include:

  • Teacher observation
  • Samples of student work demonstrating mastery of the content standards assessed by the statewide assessment
  • Standardized performance tasks.

Alternate achievement standards must be defined by the State as different performance expectations than grade-level achievement standards.  Alternate achievement standards must:

  • Be aligned with State academic content standards
  • Promote access to the general curriculum
  • Reflect the highest possible expectation for SwD based on professional judgment.

How do the various testing methods affect AYP for a school, district, or state?

If SwD are assessed with alternate assessments based on alternate achievement standards, a district may only use (or “count”) the proficient or advanced scores of students that make up a total of no more than 1% of the overall student population in the grades tested.  (This represents about 9% of all SwD.)  This 1% cap only applies to districts and states – not schools.

Example:  School district X has 10,000 students.  If 110 students are assessed in math using alternate achievement standards and all 110 score at the proficient or advanced level, the district may only count 100 of those scores (i.e., 1% of 10,000) in meeting AYP.  To determine the district’s final SwD AYP percentage, the excess 10 scores count as zeroes in the SwD subgroup category. 

States will determine how districts may distribute these excess non-proficient scores to schools for school level AYP calculations.

Why hasn’t this issue been resolved before this? 

Guidance from the USED for assessing students with disabilities has changed several times.  Previous ESEA/NCLB regulations issued in August 2002 and March 2003 indicated that alternate assessments based upon alternate standards could be used only for those students with the most significant cognitive disabilities – defined then as students performing intellectually three standard deviations below the mean. 

The regulations also eliminated the use of instructional level or out-of-level tests for SwD for the purposes of AYP, and capped the inclusion in AYP of proficient scores of SwD who took alternate assessments based upon alternate achievement standards to 0.5 percent of all students.  In a “transitional” policy issued in August, 2003, that cap was increased to 1% of all students.  Unlike the final regulation, none of the previous USED policies clarified the meanings of alternate assessments, alternate assessments based upon alternate achievement standards, or instructional level/out of level testing.

During 2002-03, many schools and districts missed AYP or were identified as "in need in improvement" under the previous regulations.  NEA is calling on the USED to permit states to review the AYP results from 2002-03 using the provisions of this new regulation to ensure that no schools or districts were inappropriately identified. 

(Also, see NEA President Reg Weaver's official statement applauding the final regulation for testing students with special needs.)

To find out more about IDEA:

See more "IDEA Briefs", review NEA's priorities for IDEA reauthorization in this Web site's Special Education/IDEA section, and visit our Legislative Action Center.

Sign up to receive NEA IDEA Activist updates by contacting Patti Ralabate at


  • Thurlow, M., Elliott, J., & Ysseldyke. (2003) Testing Students with Disabilities: Practical Strategies for Complying with district and State Requirements, Thousand Oaks, CA: Corwin Press
  • Ibid.