May 25, 2004
Honorable Thomas M. Jackson, Jr.
Virginia Board of Education
227 North Main Street
Hillsville, Virginia 24343
Dear Mr. Jackson:
This is in response to your March 26, 2004 request for a three-year exception to the 1.0 percent statewide cap on the number of proficient and advanced scores from alternate assessments based on alternate achievement standards that can be included in adequate yearly progress (AYP) decisions. You have requested a cap of 3.5 percent. Because your request is intended to enable students without the most significant cognitive disabilities to be considered proficient when they are assessed below grade-level, we must disapprove your request.
Virginia administers the Virginia Alternate Assessment Program (VAAP) to certain students with disabilities. Based on the two years of data that were submitted for review, less than one percent of students in the grades tested participated in the VAAP. Specifically:
- According to data from the school year 2001-02 test administration, 0.83 percent of students in the grades tested participated in the VAAP for English, and 0.81 percent participated in math.
- For the 2002-03 school year administration, the rates were 0.76 percent and 0.75 percent of students in the grades tested who participated in the VAAP, respectively.
In addition, Virginia administers Instructional Level Assessments (ILAs) to students who do not have significant cognitive disabilities; according to your request, these are “students with disabilities who, for the most part, were being instructed in the general curriculum, but at a slower pace than their non-disabled peers.” Participation in ILAs in 2002-03 was 2 percent for reading and 1.15 percent for math. Thus, total participation in 2002-03 in assessments based on non-grade level achievement standards (i.e., ILAs and the VAAP) was 2.76 percent for reading and 1.9 percent for math.
Based on these percentages alone, Virginia’s request for increasing the 1.0 percent cap in Section 200.13(c) of the Title I regulations to 3.5 percent appears excessive. Of greater concern, Virginia has not demonstrated that the students comprising that 3.5 percent are only those with the most significant cognitive disabilities. Rather, the 3.5 percent clearly includes students without significant cognitive disabilities who are taking ILAs. In making its request to include these students, Virginia has misconstrued the Department’s regulations. Virginia states in its letter, for example, that the “December 9  regulations, although concerned primarily with students with the most significant cognitive disabilities, also address students who may be assessed through out-of-level testing.” To the contrary, the December 9 regulations apply exclusively to students with the most significant cognitive disabilities. They acknowledge, however, that those students may, in some instances, be assessed with an assessment based on alternate achievement standards (including one that is typically characterized as an out-of-level assessment), provided those standards meet the requirements of 34 CFR Section 200.1(d). The regulations do not permit the proficient and advanced scores of students who do not have the most significant cognitive disabilities to be included as part of the 1.0 percent cap, and cannot serve as the basis of an exception request.
We recognize that the assessment of students who do not have the most significant cognitive disabilities, but who also are not receiving grade-level instruction, poses a challenge for many States. The No Child Left Behind Act builds on the Individuals with Disabilities Education Act Amendments of 1997 (IDEA), which require students with disabilities to have access to and be able to make progress in the general curriculum. We believe that as more students are held to higher standards, more students will be able to reach grade-level standards.
As you know, we will soon begin the process of peer reviewing State standards and assessment systems to ensure they meet the NCLB requirements that will be implemented in the 2005-06 school year. This review will cover, among other issues, alternate assessments and alternate achievement standards. In general, alternate assessments will be reviewed as part of the entire State assessment system and not separate from the regular assessments. Each State will be required to submit evidence that its alternate assessment is based on alternate achievement standards developed through a documented and validated standards setting process. These standards, as required by 34 CFR Section 200.1(d), must be (1) aligned with the State’s academic content standards; (2) promote access to the general curriculum; and (3) reflect professional judgment of the highest achievement standards possible.
We also understand that you intend to develop a new alternate assessment based on grade-level achievement standards for students who do not have the most significant cognitive disabilities. We provide the following as guidance to help ensure that your new assessment will meet the requirements of the law. With respect to alternate assessments aligned to grade-level achievement standards, a State should be prepared to submit evidence that those alternate assessments meet the same technical requirements as the State’s regular assessments aligned to grade-level achievement standards. Specifically, the State should be prepared to demonstrate the following for its alternate assessments based on grade-level achievement standards:
- These alternate assessments are aligned with the State’s content and grade-level achievement standards;
- These alternate assessments are comparable to regular assessments in terms of content coverage, difficulty, and quality; and
- These alternate assessment results can be aggregated with regular assessment results.
The Department’s peer review guidance provides more detail about these issues and provides examples of evidence that would demonstrate the alignment and quality of such assessments. (The guidance can be found at http://www.ed.govhttps://www2.ed.gov/policy/elsec/guid/saaprguidance.doc.) We urge you to consider this guidance as you develop any new alternate assessments to ensure that these assessments will meet the requirements of the law.
We encourage States to work with us throughout the development process so that the peer reviews are successful and are a capstone of State efforts to develop assessments that will measure student achievement for all students in valid and reliable ways. The Office of Elementary and Secondary Education and the Office of Special Education Programs will continue working with you to ensure the successful implementation of the regulations. In addition, the Office of Special Education Programs is available to provide technical assistance to your State around related requirements of IDEA including assessments, placement in the least restrictive environment, the provision of supplementary aids and services, and access to and progress in the general curriculum.
If you have any questions please do not hesitate to contact our staff. We look forward to working with you to ensure that all students with disabilities in Virginia are able to attain high standards.
Assistant Secretary for
Elementary and Secondary Education
|Troy R. Justesen, Ed.D.
Acting Deputy Assistant Secretary
for Special Education and
Policy Letters to States