October 6, 2005

Honorable Thomas M. Jackson, Jr.
President
Virginia Board of Education
227 North Main Street
P. O. Box 130
Hillsville, VA 24343

Dear Mr. Jackson:

We are writing in response to your June 1 request for an extension of the one-year exception to the 1.0 percent 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 at the State and district levels. We apologize for the delay in responding.

For the 2003-04 school year, we approved your request to use proficient and advanced scores from alternate assessments based on alternate achievement standards in AYP decisions subject to a cap of 1.13 percent. We approve your continued use of a cap of 1.13 percent for the 2004-05 school year.

We have begun the process of peer reviewing State standards and assessment systems to ensure that they meet the NCLB requirements that take effect by the end of the 2005-06 school year. This review covers, among other issues, alternate assessments and alternate achievement standards. The peer review process will determine the extent to which State assessment systems (including alternate assessments) fulfill the NCLB requirements. In general, alternate assessments will be reviewed as part of the entire State assessment system and not separate from the regular assessments. The Department’s peer review guidance provides more detail about these issues and examples of evidence that would demonstrate the alignment and quality of such assessments. This guidance is available on our website at http://www.ed.govhttps://www2.ed.gov/policy/elsec/guid/saaprguidance.doc.

We encourage States to work with us throughout their assessment development process so that the peer reviews are successful and are a capstone in State efforts to develop assessments that will measure student achievement for all students in valid and reliable ways. Virginia has shown a commitment to raising standards for students with disabilities and to improving its assessment system. We wish you success in your efforts to ensure that all your students are held to high standards of student achievement.

Sincerely,

Policy Letters to States

July 28, 2004

Honorable Thomas M. Jackson, Jr.
President
Virginia Board of Education
P.O. Box 2120Richmond, Virginia 23218-2120

Dear Mr. Jackson:

This is in response to your June 10 request for a one-year exception to the 1.0 percent 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 at the State and district levels. We appreciate your staff’s willingness to provide additional information to us and to discuss this request further with us. Based on all the information provided by Virginia, we are approving your request to use proficient and advanced scores from alternate assessments based on alternate achievement standards in AYP decisions subject to a cap of 1.13 percent for the 2003-2004 school year.

This approval is intended to support Virginia’s commitment to ensure that as many students with disabilities as possible are held to grade-level achievement standards and that the use of alternative achievement standards is limited to students with the most significant cognitive disabilities. We recognize that the Department’s December 9, 2003 regulation on this issue requires, for many States, changes in policy as well as practice. Or discussions with you indicate that Virginia is undertaking a number of changes (e.g., increased participation by students with disabilities in the State assessment system) to align its assessment system with No Child Left Behind (NCLB) and our implementing regulations and to integrate the requirements of our regulations into your own policies and practices.

We will soon begin the process of peer reviewing State standards and assessment systems to ensure that they meet the NCLB requirements that take effect at the end of the 2005-06 school year. This review will cover, among other issues, alternate assessments and alternate achievement standards. The peer review process will determine the extent to which State assessment systems (including alternate assessments) fulfill the NCLB requirements. In general, alternate assessments will be reviewed as part of the entire State assessment system and not separate from the regular assessments. The Department’s peer review guidance provides more detail about these issues and examples of evidence that would demonstrate the alignment and quality of such assessments. This guidance is available on our website at http://www.ed.govhttps://www2.ed.gov/policy/elsec/guid/saaprguidance.doc.

In particular, as you continue developing and improving your State assessment system, we want to highlight two important issues that became apparent to us during our review of your request. First, Virginia needs to ensure that Individualized Educational Program (IEP) teams understand that alternate assessments must be available for all students with disabilities who require them and that alternate assessments based on alternate achievement standards are appropriate only for students with the most significant cognitive disabilities. Moreover, as you work towards this goal, you must ensure that students with disabilities have access to the general curriculum.

Second, of the Virginia students taking an alternate assessment based on alternate achievement standards in the 2003-04 school year (1.13 percent of the population), the vast majority scored proficient or better. As you know, alternate assessments based on alternate achievement standards must reflect professional judgment of the highest learning standards possible for students who take these assessments. As you prepare for the peer review of your assessment system, you should take care to ensure that the alternate standards meet this requirement.

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. If Virginia wishes to request an exception in subsequent years, Virginia must demonstrate, at a minimum, that is has addressed the issues outlined in this letter. In addition, the Office of Special Education Programs is available to provide technical assistance to your State regarding 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.

We encourage States to work with us throughout their assessment development process so that the peer reviews are successful and are a capstone in State efforts to develop assessments that will measure student achievement for all students in valid and reliable ways. Virginia has shown a commitment to raising standards for students with disabilities and to improving its assessment system. We wish you success in your efforts to ensure that all your students are held to high standards of student achievement.

Sincerely,

Policy Letters to States

May 25, 2004

Honorable Thomas M. Jackson, Jr.
President
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 [2003] 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.

Sincerely,

Policy Letters to States

July 25, 2005

Dr. Rick Melmer
Secretary of Education
South Dakota Department of Education
700 Governors Drive
Pierre, SD 57501-2291

Dear Secretary Melmer:

I am writing in response to your February 11, 2005 request for an 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 may be included in adequate yearly progress (AYP) decisions. We appreciate your staff’s willingness to provide additional information to us and to speak with us about this request.

Based on all the information provided by South Dakota, we are approving your request, within certain parameters, to receive a statewide exception to the 1.0 percent cap so that every district in the State with fewer than 200 students in the tested grades would be able to count up to two proficient scores (based on alternate achievement standards) when calculating AYP. This exception is granted for one year to cover AYP determinations based on assessments administered in the 2004-05 school year. The continuation of this exception beyond assessments administered in 2004-05 will depend upon a completing a successful peer review (and receiving the Department’s full approval) of your State’s regular and alternate assessment system. We appreciate your efforts to provide the peers with the necessary information about your assessment system for the May 2005 review.

We are granting your request for an exception based on South Dakota’s rural nature. If a 1.0 percent limitation were applied to every district, about one-quarter of the districts in your State would not be able to count the score of a single student as proficient on the Statewide Team-led Alternate Assessment Reporting System (STAARS) when calculating AYP. In addition, because South Dakota has a large number of very small districts, a State-managed exceptions process for these districts could be administratively complicated. Based on data from the 2003-04 school year, 105 out of 169 districts had fewer than 200 students in the tested grades.

The exception is intended to address the unique nature of South Dakota’s rural districts and is not an exception based on a higher incidence rate of students statewide. If you believe that your State has a higher incidence of students with the most significant cognitive disabilities, you may apply for an exception on that basis under the terms of 34 CFR §200.13(c)(2).

Districts that are eligible for this exception (i.e., the small districts) will be able to count in calculating AYP up to two proficient scores of students with the most significant cognitive disabilities who take STAARS.

Districts with more than 200 students in the tested grades (i.e., the large districts) would be held to an overall 1.0 percent cap on the number of students with the most significant cognitive disabilities whose proficient scores on STAARS can be included in calculating AYP, unless the following situation occurs. If students with the most significant cognitive disabilities who score proficient on STAARS in the State as a whole constitute less than 1.0 percent of students in the grades assessed, your State may grant exceptions under §200.13(c)(3) to districts that need them, up to the point where the total of proficient scores on STAARS of students with the most significant disabilities is equal to 1.0 percent of the number of students in the grades assessed statewide. If the group of districts with 200 or fewer students in the tested grades in fact have less than 1.0 percent overall of students with the most significant cognitive disabilities scoring proficient on STAARS, your State will have the excess, up to 1.0 percent of the small districts’ number of students in the tested grades, available to grant exceptions that might be needed by other districts.

South Dakota has shown a commitment to raising standards for students with disabilities and to improving its assessment system. We wish you success in your efforts to ensure that all your students are held to high standards of student achievement.

Sincerely,

May 20, 2004

Honorable Andy Tompkins
Commissioner of Education
Kansas State Department of Education
120 S.E. 10th Avenue
Topeka, KS 66612-1182

Dear Commissioner Tompkins:

Thank you for sharing with me the process Kansas has undertaken to design and implement its assessment system and to meet the goals of the No Child Left Behind Act of 2001 (NCLB). Your letter of January 28, 2004 described Kansas’ efforts to include all students in the State’s assessment system. In your letter, you also asked how the Department’s new regulation on alternate assessments would affect Kansas’ assessment system, particularly the alternate assessment scored against grade-level achievement standards. I am sending an identical response to Alexa Pochowski.

As you know, under NCLB States are required to implement annual assessments in reading and math in grades 3-8 and once in high school by the 2005-06 school year, including alternate assessments. Until we conduct a peer review of each State’s assessment system, we cannot determine whether the assessments in the system meet the requirements of Title I. Consequently, because we have not yet reviewed the Kansas “alternate assessment based on grade level achievement standards”, we cannot, at this time, make a determination as to whether that alternate assessment reflects the same set of expectations for students as your State’s regular assessment. This determination can be made only after we receive input from the peer reviewers and thoroughly review the evidence.

With that in mind, until a State submits its assessments for peer review, the State may continue to administer its alternate assessments based on alternate achievement standards consistent with the December 9, 2003 regulation. A State may also continue to administer its alternate assessments based on grade-level achievement standards and include the results as grade-level scores in AYP determinations irrespective of the 1.0 percent cap.

We will soon begin the process of peer reviewing state standards and assessment systems to ensure they meet the NCLB requirements by the 2005-06 school year. This review will review alternate assessments and alternate achievement standards as part of the entire state assessment system and not separate from the regular assessments. 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 those alternate assessments based on grade level achievement standards:

• That these alternate assessments are aligned with the State’s content and grade-level achievement standards;
• That these alternate assessments are comparable to regular assessments in terms of content coverage, difficulty, and quality; and
• That 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. This guidance is available on our website: www.ed.govhttps://www2.ed.gov/policy/elsec/guid/saaprguidance.pdf. Until the peer review has occurred, if your agency believes Kansas’ alternate assessments aligned to grade level achievement standards meet the criteria summarized in this letter and contained in the Title I regulations, the results from these assessments can be included in AYP determinations as you deem appropriate.

As you prepare for the peer review, we want to bring to your attention a few statements from your letter that we feel need to be addressed. Although your letter states that the Kansas alternate assessment is measuring grade-level achievement standards, another statement in the letter indicates that items on that test “may represent a different cognitive level” compared to items on the regular assessment. Moreover, the sample items for the alternate assessments aligned to grade-level achievement standards seem to measure lower-level skills than the regular assessment. As noted above, grade-level standards measured by alternate assessments must be comparable in terms of content coverage, difficulty, and quality to the standards measured by regular assessments.

We encourage States to work with us throughout the development process so that the peer reviews are successful and are a capstone in State efforts to develop assessments that will measure student achievement for all students in valid and reliable ways. We know that through your regular assessments Kansas has shown its commitment to high standards for all students. We wish you much continued success in your efforts to ensure that all your students, including students with disabilities, are held high standards of student achievement.

Sincerely,

Raymond Simon
Assistant Secretary
Office of Elementary and Secondary Education

Policy Letters to States