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

Statewide and districtwide assessments (Sec. 300.320(a)(6))

Comment: A few commenters recommended requiring parents to be informed in writing of the consequences of their child taking an alternate assessment, including any effect on the child's eligibility for graduation with a regular high school diploma. The commenters stated that providing this information to parents is particularly important in States that require passing a State exam in order to obtain a regular high school diploma.

Discussion: Section 612(a)(16) of the Act requires that the State, (or, in the case of a districtwide assessment, the LEA) develop and implement guidelines for the participation of children with disabilities in alternate assessments, including alternate assessments aligned to alternate achievement standards permitted under 34 CFR 200.1(d). Section 200.6(a)(2)(iii)(A)(2) of the ESEA title I regulations requires States to inform parents that their child's achievement will be measured against alternate achievement standards.

We acknowledge that these requirements do not specifically require a public agency to inform parents of any potential consequences of a child participating in an alternate assessment. The commenters' recommendation will be considered along with other comments we have received in response to the NPRM proposing changes to Sec. 300.160, which was published in the Federal Register on December 15, 2005 (70 FR 74624). As noted elsewhere in this preamble, the final regulations for Sec. 300.160, regarding participation in assessments, will be published in a separate final rule.

Changes: None.

Comment: One commenter recommended defining "appropriate accommodations" and "individual appropriate accommodations" as accommodations that are needed to meet the child's unique needs that maintain and preserve test validity, reliability, and technical testing standards.

Discussion: Section 614(d)(1)(A)(i)(VI)(aa) of the Act requires that the IEP include a statement of any individual appropriate accommodations that are necessary to measure the academic and functional performance of the child on State and districtwide assessments. The requirements in proposed Sec. 300.160, published in the Federal Register on December 15, 2005, provide additional information about accommodations and the participation of children with disabilities in State and districtwide assessments. As noted elsewhere in this preamble, the final Sec. 300.160 will be published in a separate final rule. We will consider the commenter's recommendation along with other comments received in response to the NPRM proposing changes to Sec. 300.160.

Changes: None.

Comment: One commenter recommended changing the word "must" in Sec. 300.320(a)(6)(ii) to state that if an IEP Team determines that the child will take an alternate assessment, the IEP "will" include a statement of why the child cannot participate in the regular assessment. The commenter stated that "will" is less coercive and more in line with the consensus decision-making model of IEP Team meetings.

Discussion: Generally, we have used the word "must" for regulations that describe what a public agency must do and the word "will" when referring to what the IEP Team has determined a child will do. While we understand the commenter's concern, we believe it is unnecessary to change Sec. 300.320(a)(6)(ii).

Changes: None.

Comment: One commenter recommended that Sec. 300.320(a)(6) clarify that a child with the most significant cognitive disabilities, who has been determined by the IEP Team to be unable to make progress toward the regular achievement standards even with the best instruction, will be taught and assessed based on alternate achievement standards.

Discussion: It would be inappropriate to require a child with the most significant cognitive disabilities to be taught and assessed based on alternate achievement standards. Consistent with section 614(d)(1)(A)(i)(VI)(bb) of the Act, the child's IEP Team is responsible for determining the particular assessment that is appropriate for a child. Under Sec. 200.1(d) of the ESEA title I regulations, a State is permitted, but not required, to adopt alternate achievement standards and develop an alternate assessment based on those standards for children with the most significant cognitive disabilities. There is no requirement under the Act or the ESEA that a State develop an alternate assessment based on alternate achievement standards.

Changes: None.

Comment: One commenter stated that Sec. 300.320(a)(6) should include information about alternate assessments because there will be children who will not be successful with generic accommodations.

Discussion: Section 612(a)(16)(C) of the Act provides information regarding alternate assessments and the requirements for alternate assessments under the Act. As noted elsewhere in this preamble, the final regulations for Sec. 300.160, which will incorporate the requirements in section 612(a)(16) of the Act and provide further clarification regarding the participation of children with disabilities in assessments, will be published in a separate document. We will consider the commenter's recommendation along with other comments received in response to the NPRM proposing changes to Sec. 300.160.

Changes: None.

Comment: One commenter suggested revising Sec. 300.320(a)(6)(i), which requires the IEP to include a statement of any individual appropriate accommodations that are necessary to "measure" the academic and functional performance of the child on State and districtwide assessments. The commenter recommended revising the statement to require the IEP to include a statement of any individual appropriate accommodations that are necessary to allow the child to "participate" in assessments.

Discussion: To change the regulation in the manner suggested by the commenter would be inconsistent with the Act. Section 300.320(a)(6)(i) reflects the language in section 614(d)(1)(A)(i)(VI)(aa) of the Act and requires accommodations that are necessary to measure a child's performance. Accommodations that allow a child to "participate" in assessments could include accommodations that invalidate the child's test score, thereby resulting in an assessment that does not "measure" a child's performance.

Changes: None.