Two years after publishing a proposal to prohibit states from using modified tests for certain special education students, The US Department of Education (USDE) recently published final rules largely mirroring the original proposal. Despite vehement objections from TCTA and most of the 156 other parties submitting comments, USDE dug in its heels, insisting that eliminating the tests was necessary in order to “promote high expectations for students with disabilities by encouraging teaching and learning to high academic achievement standards.  Removing the authority for modified academic achievement standards and an alternate assessment based on those standards furthers this goal because students with disabilities who are assessed based on grade-level academic achievement standards will receive instruction aligned with such an assessment.”

Although Texas has since phased out use of these modified tests as a condition of receiving its NCLB/ESEA waiver, TCTA took issue because the Department skirted the rulemaking process by requiring states to eliminate modified tests as a condition of receiving an NCLB/ESEA waiver and then changing the rule to reflect that after the fact. 

Change of direction

USDE first adopted a rule regarding modified tests for special education students in 2007, in which it explicitly authorized states to use the results of alternate assessments based on modified academic achievement standards for up to 2 percent of certain special education students for federal accountability purposes. USDE’s reasoning at the time was that there was a “possibility that neither a general assessment nor an alternate assessment based on alternate academic achievement standards would provide an accurate assessment for certain students with disabilities. This included those whose disability precluded them from achieving grade-level proficiency and those whose progress was such that they would not reach grade-level proficiency in the same time frame as other students.”

Texas and a number of other states proceeded to develop tests based on modified academic achievement standards to administer to this population of special education students, the latest rendition being STAAR-M. However, in August 2013, USDE published a notice that it was proposing changing the rule to require that states phase out use of these tests before the 2014-15 school year. In explaining the proposed change, USDE stated that the promise of the new slate of Common Core assessments (emanating from the federal Race to the Top assessment program), combined with appropriate supports and instruction, would render modified tests no longer "educationally appropriate." Additionally, USDE asserted that each of the 40 states and the District of Columbia that received NCLB/ESEA waivers had agreed to phase out use of alternate assessments based on modified academic achievement standards by the 2014-15 school year. USDE stated that, at that time, only California, North Dakota and Texas had an alternate assessment based on modified academic achievement standards but had not received an NCLB/ESEA waiver, although Texas' waiver request was pending.

TCTA membership in opposition

In preparation for submitting comments on the proposal, TCTA surveyed our members. Those responding were nearly unanimous in opposition to the elimination of the modified tests. A number of members pointed out the mismatch between providing modified instruction to these students but yet being required to administer an unmodified test. In formal comments submitted to USDE, TCTA took issue with the Department’s rationale that modified tests were no longer “educationally appropriate,” pointing out that the student’s IEP team is the appropriate entity to make decisions about what is educationally appropriate for a student, not the Department of Education. Additionally, TCTA included numerous comments from TCTA members asserting compelling reasons why modified tests are indeed educationally appropriate for these students, particularly when they are receiving modified instruction.

However, in publishing its final rules, USDE’s response was that “For purposes of this response, we assume “modifications in instruction” means accommodations authorized under the IDEA. While the IDEA does authorize adaptations in the content, methodology, or delivery of instruction (34 CFR 300.39(b)(3)), it also requires appropriate accommodations during testing (34 CFR 300.160(a) and 300.320(a)(6)(i)). These accommodations, as agreed upon by a child's IEP team, which includes the child's parents along with school officials, may include, among other things, small group testing, frequent breaks, a separate or alternate location, a specified area or seating, and adaptive and specialized equipment or furniture. As permitted under the IDEA and determined appropriate by a student's IEP team, the Department believes that students with disabilities who take a general assessment based on a State's challenging academic achievement standards should be provided with accommodations during the assessment that are similar to the IEP accommodations they receive for instructional purposes and for other academic tests or assessments so that the students can be involved in, and make progress in, the general education curriculum. These regulations will not prevent the provision of needed supports to students with disabilities during general assessments or for other instructional purposes.”

TCTA additionally took issue with the Department’s additional justification for the rule change that most states were participating in consortiums to develop a new generation of tests or had already agreed to phase out use of modified tests as a condition of receiving an NCLB/ESEA waiver. TCTA pointed out that Texas had specifically rejected participation in the Race to the Top assessment program, and that the Department’s actions showed it was setting policy for all states based on those participating in voluntary Department programs, sending a clear message to those states choosing not to participate that they were at a distinct disadvantage.

In publishing final rules, USDE specifically referred to TCTA’s comment, responding: “The purpose of the these regulatory changes is to promote high expectations for students with disabilities by encouraging teaching and learning to high academic achievement standards for the grade in which a student is enrolled, measured by a State's general assessments. These regulations are driven by research and advances in the development of general assessments aligned with college- and career-ready standards that are more accessible to students with disabilities than those in place at the time States began developing alternate assessments based on modified academic achievement standards. The purpose of the regulations is not, as suggested by some commenters, to align them with voluntary Department initiatives... States approved for ESEA flexibility did agree to phase out those assessments by school year 2014-2015; however, these final regulations are not predicated on that agreement. Rather, the ESEA flexibility requirement is consistent with the purpose of the regulations to promote high expectations for students with disabilities by encouraging teaching and learning to high academic achievement standards for the grade in which a student is enrolled measured by a State's general assessments. Therefore, we disagree with the commenters who claimed that the regulations would set policy based on the Department's voluntary initiatives. Likewise, the regulations do not place any State at a disadvantage as a result of its decision not to participate in voluntary Department initiatives.”

Next Steps

Finally, USDE stated that the U.S. Secretary of Education will require states to report the number of students with disabilities who took (1) the general assessment, with and without accommodations; (2) the alternate assessment based on modified academic achievement standards; (3) the alternate assessment based on grade-level academic achievement standards; and (4) the alternate assessment based on alternate academic achievement standards in order to help states monitor whether the number of students who take an alternate assessment based on alternate academic achievement standards increases significantly with the elimination of alternate assessments based on modified academic achievement standards.