• In December 2003, ED amended NCLB by allowing additional flexibility in the assessment of students with the most significant cognitive disabilities. That regulation, known as the ONE PERCENT CAP, allows Local Educational Agencies (LEAs) to count proficient and advanced scores from alternate assessments based on alternate achievement standards up to 1% of the total students assessed in adequate yearly progress decisions.

• In issuing the new regulation, ED noted that nationally, one percent of students in the grades assessed represent approximately 9.0 percent of students with disabilities, but the actual percent varies across States. [By contrast, 13.3 percent of public school students have Individualized Education Programs (IEP), according to the NCES Common Core of Data (Table 10)]

• The ONE PERCENT CAP rule requires that ’out-of-level’ testing be considered ’alternate assessments based on alternate achievement standards’ and, therefore, subject to the cap. In anticipation of issuance of this regulation, the Secretary provided States a one-time pass on the use of out-of-level testing results, allowing them to count results on ’out-of-level’ or "instructional level" testing outside of the one percent cap but only on assessments that were administered during the 2002-2003 school year, used to make AYP determinations for the 2003-2004 school year. (See http://www.ed.gov/policy/speced/guid/secletter/030627.html.)

• To date, no state has produced an alternate assessment scored against grade-level standards that has received approval from ED. Such an assessment would be a viable alternative to the general assessment (with or without accommodations). Results on such an assessment would not be subject to the ONE PERCENT CAP limitation.

• ED also stated in the regulation that ’the Department intends to issue a report on the implementation of this regulation after two years of implementation.’ Such a report could, therefore, be available as soon as May 2006.

Discussion.
ED has not provided evidence, resulting from either data or research, indicating the need to adjust the ONE PERCENT CAP regulation. In the absence of such evidence, and in light of the commitment by ED to produce a report on the implementation of the ONE PERCENT CAP at the 2 year mark, it seems prudent to postpone any change, either via regulation or guidance, until such a report is issued and reviewed by the public.

We recognize that research on effective reading interventions as well as the emergence of a ’responsiveness-to-intervention’ model of remediation for students with reading deficiencies has been most helpful in the deliberations related to the formulation of new federal education policies - both in the ESEA, such as Reading First, and IDEA, such as updating procedures for SLD identification. Such research, however, does not provide findings that support the dramatic federal policy changes contemplated, which will impact significant numbers of IDEA-eligible students, currently numbering 6.3 million.

Additional Background.
NCLB requires annual assessments in reading and math in grades 3-8 and once during grades 10-12 for all students by the 2005-2006 school year. NCLB requires that IDEA-eligible students be included in these assessments, that the performance of these students be disaggregated as a subgroup, and that the IDEA subgroup achieve AYP (and all other applicable subgroups) in order for the school to achieve AYP. This subgroup AYP requirement is designed to bring attention to the need for improved performance and close the achievement gap for persistently underperforming groups of students.

The ONE PERCENT CAP regulation states:

• ’The Department expects most students with disabilities to participate in the regular assessment either without accommodations or with appropriate accommodations that are consistent with the accommodations provided during regular instruction Alternate assessments may be needed for students who have a broad variety of disabling conditions; consequently, a State may employ more than one alternate assessment. An alternate assessment may be scored against grade-level standards, or, in the case of students with the most significant cognitive disabilities, against alternate achievement standards.’

Further, the ONE PERCENT CAP regulation stated:

• ’The Secretary welcomes comments and data from States and others about how the regulations are working over time and may consider revising them in the future should the comments indicate a need to do so. In addition, the Department intends to issue a report on the implementation of this regulation after two years of implementation. As data and research on assessing student with disabilities improve, the Department may decide to issue regulations or guidance on other related issues in the future.’ [Page 68700, Federal Register, Vol. 68, NO. 236, December 9, 2003, Rules and Regulations]. 

Recommendation: The National Center for Learning Disabilities urges the U.S. Department of Education to delay substantial revisions to Title I rules pertaining to the assessment of IDEA-eligible students until issuance of the 2-year implementation impact report as well as the availability of State and national data on the numbers and percentages of IDEA-eligible students assessed via (1) alternate assessments based on alternate achievement standards (2) alternate assessments based on academic achievement standards used for all students (3) regular assessments, including those administered with appropriate accommodations, as required under section 1111 (h)(4) of the ESEA.

ISSUE #2: The majority of students served under IDEA do not have cognitive disabilities and need to receive appropriate instruction so that they acquire grade-level proficiency in reading and math.

• In school year 2000-2001, the categories of students that did not include cognitive impairments totaled 86.5% of children eligible for special education under IDEA. [Source: NAPAS, Myths and Realities of NCLB, 2003]

• The IDEA 2004 states that a Free, Appropriate Public Education (FAPE) means special education and related services that meet the standards of the State educational agency and requires that IEP goals are designed to meet the child’s needs that result from their disability to enable the child to be involved in and make progress in the general education curriculum, [i.e., the curriculum which is based on the same academic standards that the State applies to all public schools and public school students].

• Students with specific learning disabilities (SLD) represent 47 percent of students (age 6 to 21) with IEPs. One half of students in the SLD category spend 80 percent or more of their time in regular education. Only 18 percent of students in the SLD category spend 60 percent or more of their instructional time outside the regular classroom. [Source: U.S. Dept. of ED, DANS Table AB2, 2003]
  
  

• Despite having their disabilities identified earlier (from 7.3 years of age in 1987 to 6.5 years of age in 2001) two-thirds of secondary students with learning disabilities are reading 3 or more grade levels behind. Twenty percent are reading 5 or more grade levels behind. Source: Youth with Disabilities: A Changing Population and The Achievements of Youth with Disabilities During Secondary School. Reports from the National Longitudinal Transition Study-2 (NLTS2)2003

• More than 12,000 openings for special education teachers were left vacant or filled by substitutes in 1999-2000. Source: SPeNSE, Study of Personnel Needs in Special Education 2002

• Only 57 percent of special education teachers say they are ’very’ familiar with their state’s academic content for the subjects they teach. Source: Quality Counts 2004: Count Me In, Education Week 2004

• Only one-fifth of teachers think that ’all’ or ’most’ of their special education students can score at the proficient level on state exams. Source: Quality Counts 2004: Count Me In, Education Week 2004

• In a recent survey of parents of students with disabilities, 69 percent said many children could avoid special education if they were given help earlier. Source: Public Agenda Survey: When It’s Your Own Child, 2002
  
  

• Data from the state of Kansas (2002-03) on the participation of students with disabilities in alternate assessments, totaling approximately 2.1% of all students assessed, showed that 15 percent of students with SLD were given an alternate assessment. This rate would increase dramatically if the participation rate rose to 3 percent of those assessed, tracking a substantial number of students with SLD into a path unlikely to result in a regular high school diploma.

• There appears to be a growing and alarming assumption that certain IDEA-eligible students, by definition of their disability category, do NOT have significant cognitive disabilities and yet will be unable to access grade level content and, therefore, become proficient at grade level in reading and math (the areas assessed under NCLB). This assumption also suggests that these students, in the absence of access to the general education curriculum, can be identified for the purpose of assignment to an alternate assessment such as those known as ’out of level’ or ’instructional level.’
  
• Several studies of states that have allowed students to be tested at their instructional level have shown that schools do not get useful reports about these students, the schools tend to continue to do the same things instructionally, the students feel that the schools have given up on them, and a self-perpetuating cycle of low-expectations begins and continues. [See, e.g., NCEO Out-of-Level Testing Reports 9, 13]

• There is now substantial evidence that students who lag behind their peers, or who eventually are retained because of their lack of progress, are doomed to instruction focused on drill and practice rather than instruction that is rich and connected to other experiences. Such instruction results in students falling farther behind, becoming disengaged from school, and often eventually dropping out of school. Research has shown that within school settings, the latter type of instruction is more likely to produce increased test results than the former [See, e.g., Langer, J.A. (2001). Beating the odds: Teaching middle and high school students to read and write well. American Educational Research Journal, 38 (4), 837-880].

• Students can be provided accommodations to overcome barriers of poor decoding or computational skills, so that they can be taught and master other grade-level skills and knowledge that challenge them appropriately. With these accommodations, they gain access to understanding the meaning and functioning of text or problem-solving strategies, while they still work on the basic skills. If they work only on the basic level reading or mathematics skills, before they move on to other skills, they are likely to needlessly lag farther behind their peers, and miss many of the most engaging and content rich curricular activities provided their peers.

• Recent research has documented that a continued focus on standards, access to the grade-level curriculum, and high expectations is most likely to result in improved performance among students with disabilities [Donahue Institute, 2004; Ford Foundation, 2004].

• There is no evidence to support the assertion that there is any valid way to determine which IDEA-eligible students can achieve grade-level proficiency and which cannot, thereby making the decision to exclude any group of students, by virtue of their disability category, IQ, or any other characteristic, both arbitrary and discriminatory. [See, e.g., Expectations for Students with Cognitive Disabilities: Is the Cup Half Empty or Half Full? Can the Cup Flow Over? NCEO Synthesis Report 55.]
  
  

Recommendation: The National Center for Learning Disabilities urges the U.S. Department of Education to require that students not included in the ONE PERCENT CAP receive access to the general education curriculum and grade-level content.

ISSUE #4: ED has not conducted an open process that involves all stakeholders and conforms to the Administrative Procedures Act (APA) to change NCLB procedures and policies.

• ED conducted extensive stakeholder meetings and an NPRM process in the formulation of the ONE PERCENT CAP regulation. Any effort to withdraw or to modify the regulation without adherence to the rulemaking process set forth in the Administrative Procedures Act, 5 U.S.C. §551 et seq. will be subject to challenge. An amendment to a regulation is subject to the APA to the same extent as the original parent regulation. Just as the legislative rules promulgated on December 9, 2003, were required to follow the notice and comment procedures of 5 U.S.C. §553, any amendment to the regulation(s) should follow the same procedures.

• A modification of the ONE PERCENT CAP regulation will be highly significant. Invocation of the ’good cause’ exception (or other exceptions) to the notice and comment procedures cannot be justified on the ground that the procedures are ’impracticable, unnecessary, or contrary to the public interest.’ [5 U.S.C.§553(b)(3)(B)].
  
  

Recommendation: The National Center for Learning Disabilities urges ED to hold public meetings for parents and stakeholder groups, so that the APA is followed and the public has an opportunity to have its voice heard before policy changes are made.

ISSUE #5: NCLB currently offers LEAs and schools a number of flexible ways for calculating AYP for subgroups, including the IDEA subgroup [beyond the ONE PERCENT CAP regulation].

• Subgroup ’n’ size. Some states have set the minimum subgroup size for IDEA students higher than the other required subgroups. For example, by raising its ’n’ size to 40, the state of Alaska escapes the need to disaggregate performance for the IDEA subgroup for 80% of its schools.

• Confidential intervals. Many states have amended their NCLB plans to include a ’confidence interval’ in AYP calculations, providing for a ’range’ of students who are above, at and below the target proficiency to be counted as making AYP.

• Safe Harbor. Schools can use the ’safe harbor’ provision for the IDEA subgroup in order to make AYP. By using this provision, many students in this subgroup would not have to reach proficiency by 2013-2014. For example, a school that began with 10% of students with disabilities scoring at proficient (in ’01-’02, the baseline year for setting AYP proficiency targets), could make AYP every year via the safe harbor provision and be at 76% proficient at year 13-14.

• Averaging Proficiency Data. Some states are employing a data averaging process in AYP determinations. Such a process averages two or three years of data when calculating the percentage of students scoring at proficient levels, minimizing the effect of fluctuations in group test scores that occur due to variations in the composition of a school’s student body from year to year.

• Waiver to ONE PERCENT CAP. SEAs are free to grant waivers to LEAs to exceed the ONE PERCENT CAP when certain conditions exist. SEAs must, in turn, request a waiver from ED if LEA waivers will result in the SEA exceeding the cap.