The Every Student Succeeds Act (ESSA) Negotiated Rulemaking Committee Thursday held the second day of negotiations for its second session. U.S. Department of Education (ED) officials opened the meeting seeking comments on its proposed definition of “students with the most significant cognitive disabilities.” The proposal came after the subcommittee of the negotiating committee did not recommend a definition yesterday, but offered guiding principles to assist in the development of a definition.
Issue Paper #4a — Inclusion of students with disabilities in academic assessments
The discussion focused on assessments and accommodations for students with disabilities, including alternate assessments for “students with the most significant cognitive disabilities.”
Some items discussed included:
- Adding “pervasive in nature” to the Department’s proposed definition of “students with the most significant cognitive disabilities” was recommended by a negotiator, but others expressed caution about adding new language. With the proposed addition, the Department’s definition would be amended as: “Students with the most significant cognitive disabilities means a child with a disability or disabilities as defined under section 602(3) of the IDEA that significantly impact intellectual functioning, pervasive in nature and adaptive behavior and who require extensive, direct individualized instruction and substantial supports …”
- A proposal to include “determination of English Learners (ELs)” to the section pertaining to students with the most significant cognitive disabilities — to safeguard EL students who also happen to be students with disabilities and to require the identification is made in a way that is linguistically and culturally valid and reliable.
Tony Evers, State Superintendent of Public Instruction (Wisconsin), reiterated that he does not believe the committee needed to include a definition of “students with the most significant cognitive disabilities” in the regulation, pointing out that the subcommittee charged with that task did not recommend a definition. The issue was tabled.
Negotiators proposed additional language regarding the training of teachers and personnel responsible for administering assessments, including alternate achievement assessments. Proposals to add general education teachers, paraprofessionals and specialized instructional support personnel to the draft regulations were discussed. Concerns were raised that the expectations for training are too broad and should be more narrow. Agreeing conceptually that training is important, ED officials agreed to revise the draft language to more accurately reflect the intended goal.
Negotiators worked to ensure that ESSA is aligned with the Individuals with Disabilities Education Act (IDEA) — for determining which students should take the alternate assessments based on alternate achievement standards. Thomas Ahart, Des Moines Public Schools, Iowa, cautioned not to recreate two federal policies (one ESSA and one IDEA), which he characterized as “a recipe for inadvertent noncompliance.” The committee agreed to include language making the ESSA regulations “consistent with” IDEA policy. Ryan Ruelas, Anaheim City School District in California, revisited an issue previously discussed by the committee related to why “entitled” was used to replaced “eligible for” in the draft language pertaining to “appropriate accommodations” for English Learners. ED officials said they are waiting for a legal opinion on the issue.
Issue Paper #4b — State Administration of alternate Assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities, subject to a cap of 1 percent cap of students assessed for a subject
Negotiators next focused on the requirement in ESSA that states may not assess more than 1 percent of students on alternate assessments based on alternate achievement standards for students with the most significant cognitive disabilities. ED officials highlighted that this is a significant change from No Child Left Behind, which did not limit the percentage of students tested on alternate assessments but allowed only 1 percent of those students counted toward proficiency for accountability purposes. ESSA modified the cap to apply to the administration of the assessment — allowing 1 percent of students to be tested on alternate assessments.
Under the proposed regulations, states that exceed the 1 percent cap can request a waiver from the Department. ED officials reminded the negotiators that there is no cap on testing at the district level. However, districts exceeding 1 percent are required to submit information to the state education agency, which is responsible for oversight of the cap.
ED noted that the U.S. Secretary of Education has the authority to waive the requirement for states, but noted that the Department takes the cap very seriously. Staff noted that waivers should only be provided when there is an outstanding circumstance, as referenced in the law. ED believes the regulations should provide clarity to the states and the LEAs regarding requirements/effects of exceeding the 1 percent cap.
Some negotiators proposed making publicly available the information that LEAs submit to the state to demonstrate their reason for exceeding the cap. Concerns were raised that such information could be misconstrued by the public and the media.
Ahart said the intent of ESSA is that “states might not exceed” the 1 percent cap. It didn’t legislate the district level. In addition, the information can trigger litigation against services provided in the district. Evers expressed concern that this could be a challenge for his state, which has open enrollment. Since many students choose to attend a particular school because of the services offered, it could cause the district to go over the cap and those students would likely be sent back to their home district. “If the state comes in, the students who are enrolled are sent back to their district. Some children will be served in a less robust environment.”
Ahart said the proposed change sends the wrong message that “the only time we pay attention is when we exceed 1 percent. If you don’t exceed 1 percent you are absolutely fine.” He noted that such schools can become a magnet to students who need the services because they are servicing the students so well, but the 1 percent shows that they are not performing well, when they really are.
Alvin Wilbanks, from the Gwinnett County Public Schools, Georgia, repeatedly discussed his concern regarding the use of the word “disproportionality” when discussing the waiver parameters for those states that exceeded the 1 percent alternative assessment cap.
Evers recommended that the proposed regulations (ii) A regarding a state’s history of disproportionality, be deleted entirely because previous data should not be used against the state when they apply for a waiver. He was welcome to any changes to the provision, but could not see any modifications except for striking it. Many negotiators felt very strongly that this needed to stay in the draft regulations because they felt the data was critical to demonstrating really what is occurring in the state.
ED will work on alternative language based on the issues discussed, but noted that the prior year’s record is used when reviewing a state’s application for a waiver.
Issue Paper #3 — Locally selected, nationally recognized high school assessments
This issue is a new element in ESSA, which permits school districts to use a high school assessment as an alternative to the state assessment. Districts choosing to use a “locally selected, nationally recognized” assessment would have to demonstrate they are aligned to state content standards and of high quality. ED’s proposed definition of a “nationally recognized high school assessment” included a requirement that it be administered in multiple states and that it is used by higher education institutions in those states for entrance into postsecondary programs. In addition, districts that choose to administer such alternative test must provide the test to all students in the district. A district must apply to the state to use a locally selected nationally recognized assessment.
Several proposed changes were made to the definition of “nationally recognized high school academic assessment.” Negotiators from large school districts also expressed concern over the requirement that all students in the district be required to take such tests. Specifically, Derrick Chau, from the Los Angeles Unified School District, California, proposed to strike the proposed language that the test is used by higher education institutions for entrance purposes. Lara Evangelista from New York City Public Schools, proposed to remove the requirement that all students must take the same nationally recognized assessment because it would be a challenge in large, diverse districts like hers.
“My concern is the challenge of implementing something like this in a large district,” said Chau. He proposed that school districts include a timeline for the administration of the nationally recognized assessment test to all students. The topic was tabled.
Modifications were made in this section of the proposed regulations to reflect that some charter schools are LEAs and that the alternative school districts would have to provide meaningful consultation with all public charter schools in their districts whose students would be included in the assessment.
Negotiators debated the extent to which regulations should specify the type of public notification needed for parents. Proposals to add that school distrits must provide information in a “culturally competent” format. In other areas, proposed changes requiring districts to “orally translated” for parents if written materials in a specific language are not available, was put in. Thomas Ahart expressed concern over the practicalitiy of that language. He also proposed to remove the specific examples under ADA which he said were already required under that law.
Issue Paper # 1 — Computer adaptive tests
Negotiators made progress by agreeing on the proposed language of using computer adaptive tests, including adaptive alternate assessment and adaptive English language proficiency assessment. ESSA allows a state, at its discretion, to use computer adaptive tests. These tests must go through the peer review process as other assessments do. Prior to agreement, some negotiators stated that technology accessibility can be an issue.
Closing Conversation: Definition of Students with the Most Significant Cognitive Disabilities
During the closing discussion, negotiators revisited the issue of defining students with the most significant cognitive disabilities.
Some negotiators expressed that it was a very important issue and asked what would need to happen for dissenting negotiators to support the definition. Wilbanks responded that he believes that IDEA is the most regulated and litigious law, he believes that it is best up to the special education teachers and parents to decide on what is best for the students.
The facilitator agreed to come back to the discussion regarding the definition. In addition, there were no public comments.
Chau proposed a subcommittee to look at the growing number of dual immersion schools that are required to test in English. He requested a subcommittee to look at assessments with dual immersion schools and how that might fit into the regulations. There was some interest expressed by negotiators.
ED cautioned that this might not be legally possible as it may fall outside of the legislation. ED also noted that on Friday (April 8) they would begin with supplement not supplant and move onto the other issues previously discussed.