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U.S. Department of Education: Promoting Educational Excellence for all Americans

Accommodation Guidelines (Sec. 300.160(b))

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: A few commenters requested that the regulations clarify that accommodations that invalidate a score when used in an assessment may continue to be used in classroom instruction. Other commenters recommended that the regulations clarify that the accommodation guidelines are to be used by IEP Teams to recommend necessary and reasonable accommodations to enable a student to participate both in the instructional program and in the assessment.

Discussion: The requirements in Sec. 300.160(b) pertain to guidelines for the use of accommodations in assessments, and do not speak to the use of accommodations in the classroom. However, there is nothing in the IDEA or these regulations that would prohibit the use of accommodations in classroom instruction that, if used in a State assessment, would invalidate a student's score. Likewise, there is nothing in the IDEA or these regulations that would prohibit a State from encouraging IEP Teams to use the accommodation guidelines for assessments to determine the instructional supports to be provided in the classroom. Such instructional supports are generally referred to as supplementary aids and services. Section 300.320(a)(4)(i), consistent with section 614(d)(1)(A)(i)(IV)(aa) of the IDEA, requires the IEP Team to identify the supplementary aids and services to be provided to a child to enable the child to advance appropriately toward meeting the child's annual IEP goals.

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter recommended requiring States and LEAs to have methodologies in place to determine that the accommodations provided are valid and reliable and can be objectively determined. A few commenters recommended requiring a State to submit proposed accommodations for review and approval by a panel of peer reviewers.

Discussion: The Department's peer review of Statewide assessment systems under Title I of the ESEA already requires a State to provide evidence that the State's assessments are valid and reliable for the purposes for which the assessments are used, and are consistent with relevant, nationally recognized professional and technical standards. A State must also provide evidence that appropriate accommodations are available to students with disabilities.

For State and LEA assessments that are not part of a State's assessment system under Title I of the ESEA, a State and its LEAs also have an obligation, under the IDEA, to ensure that children with disabilities have available the accommodations that are necessary to measure the academic achievement and functional performance of the child. In order to do this, States and LEAs need to determine, for each particular assessment, the accommodations that will not result in invalid scores and identify those accommodations in their accommodation guidelines. We have revised Sec. 300.160(b)(2)(i) to make this clear.

The IDEA does not dictate a specific process to be followed in determining allowable accommodations, and, therefore, we decline to adopt the recommendations that we do so at this time. We will continue to evaluate whether States are ensuring that accommodations that would not result in invalid scores are available and revisit this decision if the need to do so becomes apparent.

The commenters who recommended requiring a State to submit proposed accommodations for review and approval by a panel of peer reviewers seem to be proposing a review to determine the appropriateness of accommodations that would be divorced from any review of the technical qualities of the State's assessments. Since decisions about whether a particular accommodation is or is not allowed depend on how a test is constructed and validated, we are not making the requested change. As required by Sec.Sec.200.2(b)(2) and 200.6(a)(1), a State already is under the obligation to ensure that its assessments under Title I of the ESEA are designed to be used by the widest possible number of students, and to ensure that accommodations are provided, when necessary, to measure the academic achievement of students with disabilities.

Changes: Section 300.160(b)(2)(i) has been changed to require a State's guidelines (or in the case of a district-wide assessment, an LEA's guidelines) to identify the accommodations for each assessment that do not invalidate the score.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter noted that the regulations must continue to allow IEP Teams to select accommodations based on the needs of their students, without regard to whether the accommodation could yield a valid score.

Discussion: Several sections of the IDEA must be considered to evaluate the proper role of a State in identifying accommodations that do not invalidate the scores of children with disabilities (and result in children being counted as nonparticipants) and the responsibility of individual IEP Teams to select accommodations for individual children.

Under section 612(a)(16) of the IDEA, a State has a responsibility to ensure that all children with disabilities are included in State and district-wide assessments. Under section 614(d)(1)(A)(i)(VI) of the IDEA and Sec. 300.320(a)(6)(i) of the IDEA regulations, a child's IEP must include the individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child.

A State's role in this regard is thus twofold--it must ensure that children with disabilities are included in the assessments and that the accommodations that are offered to individual children with disabilities are ones that allow a child's academic achievement to be measured. This carries with it, we believe, a responsibility for each State to clearly identify for IEP Teams those accommodations that, if used, will not result in an invalid score, so that children with disabilities will be appropriately included in assessments. Therefore, as noted earlier, we have changed Sec. 300.160(b)(2)(i) to require State and LEA guidelines to identify the accommodations for each assessment that do not result in invalid scores. We also believe that, to meet its responsibility to ensure that children with disabilities are included in assessments, a State needs to instruct IEP Teams to select only accommodations that do not result in invalid scores. The child's IEP Team, though, remains the primary decisionmaker for the accommodations that will be made available to the child. Therefore, we have changed Sec. 300.160(b)(2)(ii) to make clear that State and LEA guidelines must instruct IEP Teams to select only accommodations that do not result in invalid scores.

Changes: We have changed Sec. 300.160(b)(2)(ii) to require that State and LEA guidelines instruct IEP Teams to select, for each assessment, only those accommodations that do not invalidate a score.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: Several commenters stated that a State's accommodation guidelines should focus on ``appropriate accommodations'' and not require ``valid accommodations.'' These commenters stated that the focus should be on universally-designed assessments that allow many more accommodations, rather then denying children with disabilities the right to use the accommodations that are necessary to meet the child's needs. Another commenter recommended defining ``appropriate accommodations'' and ``individually appropriate accommodations'' as accommodations that are needed to meet a child's unique needs that maintain and preserve test validity, reliability, and technical testing standards.

Discussion: Tests administered with accommodations that do not maintain test validity are not measuring academic achievement and functional performance. Therefore, providing these accommodations would be inconsistent with Sec. 300.320(a)(6)(i) and section 614(d)(1)(A)(i)(VI)(aa) of the IDEA, which require each IEP to include the appropriate accommodations that are necessary to measure the academic and functional performance of a child on State and district-wide assessments. With regard to the recommendation that a State focus on universally designed assessments, new Sec. 300.160(g) (proposed Sec. 300.160(f)) already incorporates the requirement in section 612(a)(16)(E) of the IDEA that a State, in the case of Statewide assessments, and an LEA, in the case of district-wide assessments, to the extent possible, use universal design in developing and implementing assessments. Moreover, Sec. 200.2(b)(2) of the Title I regulations requires a State's assessment system to ``[b]e designed to be valid and accessible for use by the widest possible range of students, including students with disabilities.''

It is not necessary to provide specific definitions of the terms “appropriate accommodations” and “individually appropriate Accommodations” because we have revised the provisions in Sec. 300.160(b) to clarify what the accommodations guidelines need to include.

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter requested that the regulations require a State and its LEAs to provide research-based decision-making tools for IEP Team members to determine appropriate testing accommodations. A few commenters recommended that the Department provide guidance regarding accommodations for children with disabilities and require States and LEAs to provide professional development to school personnel regarding the participation of students with disabilities in State and district-wide assessments.

Discussion: We do not believe that additional regulations are necessary to address the commenters' concerns. Section 300.160(b) already requires each State (or in the case of a district-wide assessment, an LEA) to develop guidelines for IEP Teams to use regarding the provision of appropriate accommodations. Section 200.6(a)(1)(ii)(B) of the Title I regulations also requires each State to ensure that regular and special education teachers, and other appropriate staff know how to administer assessments, including making appropriate use of accommodations for students with disabilities.

The Department has devoted considerable resources to provide technical assistance to States regarding the appropriate use of accommodations for children with disabilities. For example, the Office of Special Education Programs supports the National Center on Educational Outcomes (See http://www.education.umn.edu/nceo/) and the Office of Elementary and Secondary Education supports a Comprehensive Center on

Accountability and Assessments (See http://www.aacompcenter.org/). In addition, the Department's Institute of Education Sciences supports research to address questions of how assessments for accountability can best be designed and used to capture and represent proficiency and growth for children with disabilities (See http://ies.ed.gov/ncser/).

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter recommended requiring a State to have in effect policies and procedures that explain how children with disabilities are included in assessments. The commenter stated that the policies and procedures related to assessments must include a clear statement that the IEP Team, including the parent, makes the decision regarding a child's participation in State and district-wide assessments; how parents will be notified when decisions regarding the child's participation in assessments will be made; and when reports will be distributed to parents and the public. A few commenters requested that the regulations require the IEP to include the accommodations to be provided to a child.

Discussion: The requirements recommended by the commenters are already addressed in these and other existing regulations. Section 300.160(a), consistent with section 612(a)(16) of the IDEA, requires each State to have in effect policies and procedures to ensure that all children with disabilities in the State are included in State and district-wide assessments, with appropriate accommodations and alternate assessments where necessary. Section 300.320(a)(6), consistent with section 614(d)(1)(A)(i)(VI) of the IDEA, requires a child's IEP Team, which includes the parent, to include in the IEP any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and district-wide assessments. If the IEP Team determines that a child will take an alternate assessment, the IEP Team must explain why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child. Section 300.322(b) requires that the notice to the parent regarding an IEP Team meeting indicate the purpose of the meeting, in addition to the time and location of the meeting. Finally, new Sec.300.160(f) (proposed Sec.300.160(e)) requires that reports on the performance of children with disabilities on State and district-wide assessments be available to the public with the same frequency and in the same detail as reports on the assessment of nondisabled children.

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter stated that the requirement for valid accommodations will lead to increased litigation because it violates section 607(a) and (b) of the IDEA.

Discussion: We disagree with the commenter. Section 607(a) of the IDEA states that the Secretary shall issue regulations only to the extent that such regulations are necessary to ensure compliance with the specific requirements of the IDEA. Section 607(b) of the IDEA provides that the Secretary cannot publish final regulations that would procedurally or substantively lessen the protections provided to children with disabilities in the regulations that were in effect on July 20, 1983, except to the extent that such regulations reflect the clear and unequivocal intent of Congress in legislation. We believe that Sec.300.160(a) is necessary to ensure that the requirements in sections 612(a)(16) and 614(d)(1)(A)(i)(VI)(aa) of the IDEA are met, does not lessen protections for children with disabilities that were in regulations in effect in 1983 (the 1983 regulations did not address assessments), and reflects the clear and unequivocal intent of Congress. Section 614(d)(1)(A)(i)(VI)(aa) of the IDEA requires each IEP Team to include in an IEP the appropriate accommodations that are necessary to measure the academic and functional performance of a child on State and district-wide assessments. Tests administered with accommodations that do not maintain test validity are not measuring academic achievement. Moreover, the importance of identifying valid accommodations was

recognized on page 97 of the House Committee Report No. 108-77 (2003):

* * * States have an affirmative obligation to determine what types of accommodations can be made to assessments while maintaining their reliability and validity

* * *. The Committee is intent on ensuring that each child with a disability receives appropriate accommodations, but is equally intent that these accommodations not invalidate the particular assessment.

Similarly, the Senate Committee Report No. 108-185 (2003) on page30 acknowledges that appropriate accommodations will not affect the test's validity. Accordingly, we disagree that the validation requirement violates section 607(a) or (b) of the IDEA.

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter requested a definition of ``valid.'' Another commenter stated that the regulations should make clear that accommodations that alter the construct being assessed are not allowed.

Discussion: As used in Sec.300.160(a), a ``valid'' accommodation is an accommodation that does not alter the construct that the test is intended to measure. Accommodations that affect test validity do not measure a child's academic achievement. We believe the requirement for valid accommodations is sufficient to guide IEP Teams and, therefore, decline to add the suggested language to the regulation.

The Department's nonregulatory guidance on standards and assessment defines validity (See question F-4.) and further clarifies a State's responsibilities for the validity and reliability of assessments under Title I. This document can be found at http://www.ed.gov/policy/elsec/guid/saaguidance03.doc. We do not believe additional clarification is needed in these regulations.

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: Several commenters requested that definitions of “accommodations” and “modifications” be included in these regulations because definitions of these two terms vary across States.

Discussion: The terms “accommodations” and “modifications” are terms of art and have different meanings depending on the context in which they are used. The terms are used in a number of ways, for example, to refer to changes to a test or testing environment, or to adaptations to an educational environment, the presentation of educational material, the method of response, or the educational content. We do not believe it is appropriate to define such terms of art in these regulations. We also note that the term “modifications” is not used in the IDEA amendments of 2004 or the ESEA, as amended by NCLB.

Changes: None.

(originally published on April 9, 2007 – 72 FR 17748; effective date – May 9, 2007)

Comment: One commenter stated that special accommodations should be given for children with the most significant cognitive disabilities.

Discussion: Section 1111(b)(3)(C)(ix)(II) of the ESEA and section 612(a)(16) of the IDEA already require a State to provide appropriate accommodations for students with disabilities to participate in State assessment systems. This includes accommodations for alternate assessments.

Changes: None.