POLICY MEMO: To States Regarding the Cap on the Percentage of Students who may be Assessed with an Alternate Assessment (Aug. 27, 2018)

Memo to States Regarding the Cap on the Percentage of Students who may be Assessed with an Alternate Assessment from the Office of Special Education and Rehabilitative Services and the Office of Elementary and Secondary Education

To: State Assessment Directors
State Title I Directors
State Special Education Directors
From: Ruth E. Ryder
Acting Director, Office of Special Education Programs
Office of Special Education and Rehabilitative Services

Patrick Rooney
Deputy Director, Office of State Support
Office of Elementary and Secondary Education

Date: August 27, 2018
Subject: Additional Information Regarding the Requirements to Request a Waiver from the One Percent Cap on the Percentage of Students Who May Be Assessed with an Alternate Assessment Aligned with Alternate Academic Achievement Standards (AA-AAAS)

The purpose of this memorandum is to provide an update on the requirement, in Title I of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), related to participation on an alternate assessment aligned with alternate academic achievement standards (AA-AAAS) for the 2018-2019 school year (SY). As a reminder, the ESEA requires that only students with the most significant cognitive disabilities may take an AA-AAAS and limits the number of students that a State may assess with an AA-AAAS to no more than 1.0 percent of all students in the grades assessed in a State.1

However, a State that is able to meet a number of requirements may apply to the U.S. Department of Education (the Department) for a one-year waiver from the 1.0 percent participation requirement. On May 16, 2017, the Department posted information regarding the procedures for a State to apply for such a waiver for SY 2017-2018. 2

The Department granted the waiver to States that demonstrated compliance with the waiver requirements.3

For a State that was not granted this waiver last year, the same requirements apply. In addition, any State that was approved for a waiver of this requirement in SY 2017-2018 and that needs to extend the waiver for SY 2018-2019 is required to demonstrate substantial progress towards achieving each component of the prior year’s plan and timeline to ensure that the State is making progress towards meeting the 1.0 percent cap and assessing only students with the most significant cognitive disabilities with an AA-AAAS.

The requirements associated with demonstrating substantial progress are described in more detail below.

Information for States Applying for a Waiver for the First Time in SY 2018-2019

The letter on May 16, 2017, describes the requirements and procedures to request a waiver from the 1.0 percent cap. States applying for a waiver should ensure that their request addresses each requirement.

Among waiver requests submitted in 2017-2018, the Department noted that some States did not provide:

  • Data from the current or previous school year 4 to show the number and percentage of students overall and from each subgroup of students who will take or took the AA-AAAS with respect to each subject for which the State seeks a waiver;

Example (this is sample data only, it does not represent any single State’s data):

Group  Total Grades
3-8 and 10
ELA
# Taking State
ELA AA-AAAS
Gr. 3-8 and 10
% Taking State
ELA AA-AAAS
Gr. 3-8 and 10
All Students 475,611 7,453 1.57%
(=7,453/475,611)
English Learners 41,232 911 2.21%
Black 46,258 1,116 2.41%
Hispanic/Latino 95,464 2,168 2.27%
Asian 31,956 432 1.35%
White 260,701 3,919 1.50%
Econ. Disadv. 172,190 4,754 2.76%
  • Data to show that the State has assessed the achievement of at least 95 percent of all students and 95 percent of children with disabilities who are enrolled in grades for which the assessment is required (note: include data separately for each requested subject – reading/language arts (R/LA), mathematics and/or science). This percentage must include all students assessed with the general assessment and the AA-AAAS for each applicable subject;

Example (this is sample data only, it does not represent any single State’s data):

Subject Area/Group Enrolled Assessed % Assessed
R/LA–All Students Total
Gr. 3-8, 10
424,382 409,439 96.5%
R/LA–Children With
Disabilities (CWD) Totals
Gr. 3-8, 10
93,121 89,369 96.0%
Math–All Students Totals
Gr. 3-8, 10
424,653 409,978 96.5%
Math–CWD Totals
Gr. 3-8, 10
92,745 89,745 96.8%
Science–All Students Totals
Gr. 4, 7, 10
141,460 138,957 98.2%
Science–CWD Totals
Gr. 4, 7, 10
30,528 29,852 97.8%
  • Evidence that the SEA has verified that each LEA that the State anticipates will assess more than 1.0 percent of its assessed students in any subject using an AA-AAAS:
    • followed the State’s guidelines for participation in the AA-AAAS 5; and
    • will address any disproportionality in the percentage of students in any subgroup taking an AA-AAAS.
  • A plan and timeline with clear, actionable steps and milestones that includes:
    • A clear description of how the State will improve the implementation of its guidelines for participation in the AA-AAAS, including by reviewing and, if necessary, revising its definition of students with the most significant cognitive disabilities (see 34 CFR 200.6(d)(1)), so that the State meets the 1.0 percent cap in each subject for which assessments are administered in future school years;
    • A clear description of how it will monitor and regularly evaluate each LEA to ensure that the LEA provides sufficient training such that school staff who participate as members of an individualized education program (IEP) team or other placement team understand and implement the guidelines established by the State for participation in an AA-AAAS so that all students are appropriately assessed; and
    • A clear description of how the State will address any disproportionality in the percentage of students taking an AA-AAAS as identified through the data provided. 6

Information for States Applying to Extend a Previously Granted Waiver
A State that wishes to request an extension of a waiver that they received in SY 2017-2018 should provide updated information regarding each requirement in the previous year’s submission, as outlined in the May 16, 2017, memorandum. In preparing a waiver renewal request, States must continue to meet each requirement associated with a first-year waiver. Additionally, a State must demonstrate substantial progress towards achieving each component of the prior year’s plan and timeline. As noted above, in creating a plan and timeline, a State must address three areas within its plan and timeline:

  • How the State will improve the implementation of its guidelines for participation in the AA-AAAS including by reviewing and, if necessary, revising its definition of students with the most significant cognitive disabilities (see 34 CFR 200.6(d)(1)), so that the State meets the 1.0 percent cap in each subject for which assessments are administered in future school years;
  • How the State will monitor and regularly evaluate each LEA to ensure that the LEA provides sufficient training such that school staff who participate as members of an IEP team or other placement team understand and implement the guidelines established by the State for participation in an AA-AAAS so that all students are appropriately assessed; and
  • How the State will address any disproportionality in the percentage of students taking an AA-AAAS as identified through the data provided. 7

The Department will base decisions about extensions of any 1.0 percent cap waivers by evaluating whether the State met the requirements as well as the degree to which it has demonstrated progress against the previous year’s plan for improvement.

States with questions about these waiver requests should contact their Office of State Support contacts at: OSS.[State]@ed.gov (e.g., OSS.Nebraska@ed.gov) and their Office of Special Education Programs State Lead. Thank you for your continued commitment to our nation’s students.


1 See http://www2.ed.gov/documents/essa-act-of-1965.pdf
2 See https://www2.ed.gov/admins/lead/account/saa/onepercentcapmemo51617.pdf
3 See https://www2.ed.gov/admins/lead/account/stateplan17/waivers/index.html
4 A State applying for a waiver for the 2018-2019 school year could submit data from either 2018-2019 (current school year) or 2017-2018 (previous school year).
5 34 CFR 200.6(d), consistent with section 612(a)(16)(C) of the Individuals with Disabilities Education Act (IDEA).
6 34 CFR 200.6(c)(4)(iv)
7 34 CFR 200.6(c)(4)(iv)

To States Regarding the Cap on the Percentage of Students who may be Assessed with an Alternate Assessment (Aug. 27, 2018)
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