On Monday, the Every Student Succeeds Act Negotiated Rulemaking Committee formed to negotiate terms of regulations relating to assessments and supplement, not supplant provisions of Title I of the Every Student Succeeds Act (ESSA) began negotiations this morning for their third and final meeting. The U.S. Department of Education (ED) staff began with an overview of the potential outcomes of the meeting, explaining how the Secretary will proceed if negotiators reach consensus or fail to reach consensus. ED staff stated that this [the meeting] is the last “chance for certainty,” reminding negotiators that if consensus is not reached, the Secretary is authorized to proceed in publishing regulations without being bound to the negotiations or the draft regulations discussed during negotiations. Negotiators seemed anxious to work towards consensus and wasted no time delving into the substantive provisions of assessments regulations. View the meeting materials for this session.
Below are highlights from Monday’s discussion.
Assessing English Learners: The negotiated rulemaking committee first discussed the inclusion of English learners in academic assessments, Issue Paper #5a. Negotiators focused on new language added by the Department, in response to the previous negotiated rulemaking meeting. The Department highlighted major changes to the proposed regulatory language, which included the following:
- Added language to clarify that provisions of the proposed rule relate exclusively to academic assessments.
- Amended the previous language relating to English learners who also happen to be students with disabilities. (This was at the request of negotiators in the previous meeting.) Language clarifies that this population of students would be eligible for accommodations as both English learners and students with disabilities.
- Added new language to address Native American and Alaskan Native students enrolled in programs that provide instruction primarily in the Native American or Alaskan Native language. The regulations allow states to provide the English language arts/reading assessment in the native language, if certain requirements are met, up to the 8th-grade.
- Deleted the language included in previous draft regulations that required a state to take into consideration languages spoken by at least 30 percent of English learners in the state when identifying “languages other than English that are present to a significant extent of the participating student population.”
- Added a new section with a clear definition of “Native American” and “Alaskan Native” students.
Tony Evers, Wisconsin Department of Public Instruction, offered two amendments to add “guardrails” to the rule, and to give states more flexibility in determining “languages other than English that are present to a significant extent of the participating student population.” Negotiators expressed dissent on both of the proposed amendments, essentially rejecting the changes. Evers expressed concern that he did not know how States would be able to demonstrate compliance with that section, or how a state agency could document “adequate consideration.” Teachers serving on the panel expressed concern that the proposed rule still did not address the language of instruction, again noting that it does not benefit a student to be assessed in a native language if instruction is provided in English. The Department noted that it could consider providing guidance on that issue, but that other provisions of law mandated that consideration. The committee reached tentative consensus on the Department’s proposed rule, with a few amendments to the section that outlined native language programs for Native American and Native Alaskan students. The language relating to the elements states must take into consideration in identifying “languages other than English” remained intact, as recommended by the Department.
EL Language Proficiency Assessments: Negotiators proceeded to discuss Issue Paper #5b , which relates to the inclusion of English learners in English language proficiency assessments. Department staff highlighted the parental notification language, which had been added since the last negotiated rulemaking meeting. ED staff explained that general requirements for parental notification have been added to Section 200.2 of the rule, and that other rules will reference back to parental notification requirements. The Department noted the cross-reference in the EL/English language proficiency assessment rule to the parental notification requirements. The proposed rule requires “coherent and timely information about each student’s attainment of [those] standards, including information provided to parents.” Thomas Ahart, Des Moines Public Schools, Iowa, sought to include language to the rule, but the Department’s counsel advised against amending the language, and dissent was expressed by several members of the committee. The negotiated rulemaking committee reached tentative consensus on the Department’s proposed language.
Advanced Mathematics Exception for 8th-Grade Students: The negotiated rulemaking committee next discussed the ESSA exception relating to the 8th-graders enrolled in and assessed in advanced mathematics courses, Issue Paper #2. The discussion was limited to the last paragraph of the proposed rules, which related to a State’s obligation “to ensure that all students in the State have the opportunity to be prepared for and take advanced mathematics coursework in middle school.” Several negotiators previously expressed concern with the Department’s proposed language, noting the difficulty in “ensuring” both preparedness and opportunity. Thomas Ahart (Des Moines Public Schools, Iowa) offered several amendments to the proposed language, and amendments were filed by four other negotiators including Tony Evers (Wisconsin Department of Public Instruction); Kerri Briggs (Exxon Mobil, Texas); and Audrey Jackson (Boston Public Schools, Massachusetts.) The Department noted that the intent of the Department is for states to ensure that all students are ready for advanced mathematics in middle school. Department staff also pointed to the previous system utilized under the Flexibility Waiver process, whereby states were asked to offer similar evidence. Department staff noted that States complied with the requirement in several different ways.
Negotiators urged committee members to accept the language as proposed, noting that the intent of ESSA is to ensure equity for all students. Other negotiators attempted to qualify the application of the rule, noting that only states who have adopted end-of-course (EOC’s) in advanced mathematics courses could even benefit from the exception, further noting that only those states would be required to comply with the provisions of the proposed rule. Following a lengthy conversation, the committee did reach tentative consensus, with the Department’s proposed language amended as follows:
“The State describes in its state plan, with regard to this exception, its strategies to provide all students in the State the opportunity to be prepared for and to take advanced mathematics coursework in middle school.”
Students with Disabilities in Academic Assessments – Issue Paper #4a. The Department staff began the discussion by highlighting the proposed changes to the regulations, noting the addition of clarifying language added since the committee’s last meeting. The facilitator led the group through each subsection of the rule, allowing negotiators to amend language throughout the process and vote on tentative consensus. The committee, through that process, to express dissent on specific provisions of the rule. Committee members flagged the following sections of the rule for which consensus cannot yet be reached:
- Language in the rule which requires “appropriate accommodations, such as interoperability with, and ability to use, assistive technology devices consistent with nationally recognized accessibility standards.”
- The wording of subsection (b)(3), which incorporates provisions of 504/Title II regulations into proposed ESSA regulations. (Language relating to ensuring that accommodations do not deny a student with a disability the opportunity to participate in the assessment or afford any benefit from such participation that is not equal to the benefit afforded to students who do not use accommodations.)
Committee members continue to disagree on the inclusion of a definition of “student with significant cognitive disabilities,” which was revised by the Department since the last negotiated rulemaking meeting on April 7. The Department’s current language defines the term as “a child with a disability or disabilities as defined under section 602(3) of the IDEA that significantly impact intellectual functioning and adaptive behavior, and who requires extensive, direct individualized instruction and substantial supports, as determined by the IEP team, except that:
- The identification of a student as having a particular disability as defined by the IDEA must not determine whether a student is a student with the most significant cognitive disabilities; and
- A student with the most significant cognitive disabilities must not be identified solely on the basis of the student’s previous low academic achievement, or status as an English learner, or the student’s previous need for accommodation to participate in general State or districtwide assessments.
Negotiators expressed serious concern over the inclusion of the definition in federal regulations. Evers asked for an amendment to delete the definition from the proposed regulations. Negotiators dissented from the removal of the definition. Evers amended the motion to include guidelines, but committee members also dissented to his subsequent amendment. ED staff indicated that they feel very strongly about including the definition in the proposed regulations. Staff stated that they understand concerns expressed by negotiators, but that they believe having a federal definition will provide guidance to states, school districts, and IEP teams. ED staff stated that the inclusion of a definition will help states and schools better serve this population of students. Negotiators supportive of including a definition in the regulations requested amendments to the proposed definition.
Evers pointed to the group that this was the best illustration for not including a definition: No single definition can include all scenarios or provide enough flexibility to include affected students. Evers pointed to the fact that this is the committee’s fourth attempt at developing a definition — and each attempt has failed because the language does not fully include all of the elements a state or school district may need to consider. Alvin Wilbanks, Gwinnett County Public Schools, Georgia supported Evers comments, noting that school districts are very capable of identifying students with the most significant cognitive disabilities and that IEP teams have been doing this work for years without a definition.
Lisa Mack, PTA, Ohio noted that previous non-regulatory guidance from the Department issued following the passage of No Child Left Behind (NCLB) included general parameters for states to consider in adopting a definition of “students with the most cognitive disabilities” — and offered that definition to the group. The group engaged in a discussion as to whether this guidance/definition has been sufficient — since it illustrates the guidance that has been provided to states up to date. Negotiators remained split over whether to continue to provide broad parameters to states or to provide a specific, federal definition of “students with the most significant cognitive disabilities.”
Although the committee achieved tentative agreement on several sections of the proposed rule, the committee has been unable to reach tentative consensus on three sections of the proposed rule, including the section which includes a definition of “students with the most significant cognitive disabilities.”
Alternate Academic Achievement: Following a brief lunch break, the committee resumed negotiations to discuss the administration of the alternate assessments to measure alternate academic achievement standards for students with the most significant cognitive disabilities, including the 1 percent cap on the use of assessments. Negotiators discussed reporting requirements for students assessed with an alternative academic assessment, including a discussion about N-size concerns and assistance the Department could provide to states in reporting data on students with the most significant cognitive disabilities, Issue Paper #4b. Negotiators also amended the Department’s proposed language to include additional language relating to the way in which a state education agency (state department of education) provide oversight to LEA’s that assess more than 1 percent of students with an alternate assessment.
The Department’s proposed regulatory text again included significant requirements for states that exceed the 1 percent cap. Regulations require States to seek a waiver from the Secretary of Education (U.S. Department of Education), and demonstrate specific elements, including some of the following:
- The number and percentage of students (in each subgroup) who took the alternate assessment;
- Evidence that the state measured the achievement of 95 percent of all students and 95 percent of students with disabilities;
- Information related to disproportionalities in the number of students in any particular subgroup assessed with an alternate assessment;
- A plan and timeline by which the state will improve compliance;
- How the states will take steps to support and provide oversight to each school district that assesses more than 1 percent of students in a subject using an alternate assessment; and
- Assessment history relating to the administration of alternate assessments.
Negotiators sought to amend the Department’s proposed language, seeking to relieve States seeking a waiver of the 1 percent alternate assessment requirement from having to show that it met the 95 percent measurable achievement (testing) requirement. However, the Department and other negotiators expressed dissent at removing the requirement (entirely) from the proposed regulation. Although the initial amendment to delete the requirement failed, the amendment caused negotiators to stray from the proposed regulations — and discuss the general requirement in ESSA that States test 95 percent of the student population. Negotiators expressed opposition and support of the 95 percent testing requirement. However, the Department staff quickly reminded negotiators of the provisions of ESSA that require each state to include, in the Accountability system, a participation rate of 95 percent. ED staff also reminded negotiators that the general requirement is not a part of the current proposed assessment regulations. Although negotiators discussed this issue at length, the requirement was not deleted or amended by negotiators.
Negotiators also asked several questions about the assurances States would be required to provide to the Department, but the committee did not amend the Department’s proposed language. Negotiators also asked questions about why a state is required to seek a Waiver for the 1 percent cap “at least 90 days prior to the start of the State’s first testing window.” Negotiators expressed concern that this may be difficult for states that do not have a clear or established testing window. Derrick Chau, Los Angeles Unified School District, California, asked for a “Hold” on this particular section of the proposed rules, requesting additional time to develop language seeking to lessen that requirement.
Three sections of the rule were flagged by members of the negotiated rulemaking committee, including: (1) The requirement that states submit a request for a waiver within 90 days prior to the first testing window; (2) The requirement that a State meet the 95 percent testing requirement to request a waiver of the 1 percent cap; and (3) Sections relating to the issue of disproportionality. With those sections excluded, the committee reached tentative consensus on the rule. The committee will revisit the three remaining issues tomorrow to determine if consensus can be achieved.
Locally Selected/Nationally Recognized High School Assessment: Negotiators considered the proposed language by the Department relating to the option in ESSA that allows districts to utilize nationally recognized assessments in lieu of high school assessments administered by the State, Issue Paper #3. Staff noted language added to regulations to address concerns related to charter schools, and how charter schools may be involved in the process of a district opting to offer a nationally-recognized assessment in-lieu of high school assessments required by the State. The Department opted to leave in provisions of the proposed rule that require districts to provide the nationally-recognized assessment to all students in the district. Chau expressed concern over the requirement that if a district elects this option, it must provide the nationally-recognized assessment to all high school students in the district. Chau noted that, while he is not objecting to the requirement, he urged the committee to consider the practical repercussions of this requirement. He noted that for a district like L.A. Unified, which has 120 high schools, the reality of the situation is that at least for the implementation period, this will result in the “double-testing” of students. Other negotiators added to Chau’s comments about the difficulty of implementing this requirement, agreeing that for some districts, this requirement will impose logistical challenges. Negotiators eventually discussed the option of including a provision in the rule to allow larger districts to meet this requirement over a period of time, and upon approval of the state department of education/state educational agency. However, the Department expressed dissent over amending this requirement, and the facilitator moved to a different topic.
Negotiators also extensively discussed the proposed definition of a “nationally recognized assessment,” as proposed by the Department. Negotiators discussed the possibility of expanding the definition to include assessments like NAEP and PISA — to allow districts to use those assessments for this exception. Department staff expressed concern and practical limitations of using those assessments for this purpose, because they are often given to only a sampling of students in a school site. Other negotiators asked why the definition was limited to assessments “accepted by institutions of higher education in those or other States for the purposes of entrance or placement into courses in postsecondary education or training programs.” Negotiators explored amendments to expand the language to include additional options outside of the ACT and the SAT. Several negotiators asked for amendments to the definition, proposing and editing potential language, resulting in a lengthy discussion about the purpose of the definition.
Ahart proposed an amendment to the definition to include an additional option for districts, providing for additional consideration of selection of an assessments that “meet[s] all the requirements of this section and provides valuable instructional information on the students’ achievement.” Negotiators and Department staff discussed the proposed amendment, and other amendments to the definition, but the definition was flagged as needing more discussion. Finally, the facilitator asked the Department to take all ideas and recommendations into account, and return tomorrow with a reworked definition for the committee to consider.
The committee reached tentative agreement on the proposed rule — except on two different issues: (1) The definition of “nationally recognized high school assessment”; and (2) The requirement that the entire assessment be administered throughout the entire district. The two remaining issues will be revisited today (April 19).
General Assessment Regulations: The afternoon discussion wrapped up with an overall discussion of the general assessment regulations (Section 200.2). The Department highlighted the definitions included in the proposed regulations. (Definitions of “English learner,” “student in foster care,” status as a “migratory child,” status “as a homeless child or youth,” “Status as a student with a parent who is a member of the Armed Forces on active duty.”). The Department explained the proposed definitions, most of which cross-reference other federal laws defining such terms. Negotiators asked about the Department’s proposed regulatory definition of “a student with a parent who is a member of the Armed Forces on active duty,” because the definition proposed by the Department excludes students with parents in National Guard. Negotiators amended the language to include students with parents in the National Guard. Department staff clarified that the addition would not necessarily be a requirement that data be reported on this population of students. Rather, it would require a State to demonstrate that, prior to submission by peer review, it can disaggregate data including this population of students.
Prior to adjourning for the day, Department staff summarized cross-references in proposed rules to the definitions outlined above and answered questions relating to students in foster care.
The final day of negotiated rulemaking is scheduled for today (April 19). The committee will revisit issues that could not be resolved Monday, and determine whether final consensus can be achieved on remaining issues, including supplement, not supplant.