Q&A Regarding Inclusion of English Learners with Disabilities in English Language Proficiency Assessments and Title III Annual Measurable Achievement Objectives (August 3, 2015)

1 Addendum to Questions and Answers Regarding Inclusion of English Learners with Disabilities in English Language Proficiency Assessments and Title III Annual Measurable Achievement Objectives Issued July 18, 2014 (2014 Qs and A s) 1 Table of Contents : Initi al Identification 14. Why is it important to consider the results of an EL screener for students with disabilities or students suspected of having a disability? 15. Can IDEA funds be used to identify a student with a disability, or a student suspected of having a disability, as an EL? 16. Does Federal law provide that ELs may not be evaluated for special education services for a certain period of time? 17. How can States ensure the appropriate identification of ELs with disabilities and prevent the over/under identifica tion of ELs for special education services? Role of the IEP Team 18. What guidance and resources are available to assist IEP Teams in determining whether an EL with a disability should take the regular ELP assessment with accommodations or an alternate asse ssment? Accommodations and A lternate A ssessments 19. May States develop alternate ELP standards for ELs with disabilities to define what they know in English and are able to do in English? 20. Are all ELs with disabilities expected to have their ELP assesse d in the same way as ELs without disabilities? 21. May a State use different cut scores or achievement standards on the State ELP assessment for determining whether ELs with disabilities are proficient in English? 22. May a State use Title III funds to develo p an alternate ELP assessment for students with disabilities? 1 The Qs and As can be accessed at the following link: http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/q -and -a-on -elp -swd.pdf . 2 23. May a State use Title III funds for SEA capacity -building activities, such as funding a meeting to gather stakeholders to make determinations about how to develop an alternate ELP assessmen t? Other Considerations 24. What responsibilities do States and LEAs have for students who were identified as ELs with disabilities but whose parents/guardians refused EL services, with regard to the annual ELP assessment? Questions and Answers: Ini tial Identificatio n Consistent with obligations under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, schools must take affirmative steps to ensure that students with limited English proficiency can meaningfully participate in their educationa l programs and services. This requires a mechanism for initially identifying a student as an E nglish learner (EL) .2 Some States and local educational agencies (LEAs) use an EL screening assessment or tool to determine whether students are ELs who are in need of language assistance services. Other States and LEAs use the annual English Language Proficiency ( ELP ) assessment required in section 1111(b)(7) of the ESEA for this purpose. The term “EL screener” will be used in questions 14 and 15 to encompass both identification mechanisms . Question 14 address es the importance of the EL screener for students with disabilities or for students suspected of having a disability under the IDEA , and question 15 addresses whether it could be permissible to use IDEA f unds in connection with the EL screening process. Questions 16 and 17 address the appropriate and timely evaluation and identification of ELs as students with disabilities under the IDEA . 14. Why is it important to consider the results of an EL screener fo r students with disabilities or students suspected of having a disability? Under the IDEA, a student may not be determined to be a student with a disability if the determinant factor is the student’s limited English proficiency, and if the student does no t otherwise meet the IDEA’s definition of a “ child with a disability ” (34 CFR §300.306(b)(1)(iii) and (2)). To ensure that the IDEA eligibility determination is based on the student’s disability and need for special education and related services, and not solely on a student ’s limited English proficiency, providing accommodations on the regular EL screener or administering an alternate form of the EL screener could be necessary to give a 2 As noted in the 2014 Qs and As , the term “English Learner” (EL) means a student who is consi dered limited English proficient (LEP) as defined in section 9101(25) of the ESEA . The term “students with disabilities,” as used in this document, refers to children who meet the definition of “child with a disabilit y” in section 602(3) of the IDEA and 34 CFR §300.8 of the IDEA Part B regulations . 3 student with a disability , or a student suspected of having a disabil ity , a meaningful opportunity to accurately demonstrate his or her English language proficiency . An EL screener may be necessary after a child is found eligible for services under the IDEA but has not yet been determined to be an EL. In developing, revi ewing, or revising the IEP for a student with limited English proficiency , one of the special factors that the IEP Team must consider is how the language needs of the student relate to the student's IEP ( 34 CFR §300.324(a)( 2)(ii) and (b)(2) ). For a descri ption of the IEP Team participants, s ee 2014 Qs and As question four . Thus, the student’s ELP level indicated by the EL screener could provide information that the IEP Team could use in ascertaining the student’s language needs and ensuring that the stude nt receives a program of special education and related services , and supplementary aids and services, designed to enable the student to advance appropriately toward attaining his or her annual IEP goals and to be involved and make progress in the general e ducation curriculum (34 CFR §300.320(a)(4)(i v)). Also, it may be necessary to revisit EL determinations for students with disabilities who were previously identified as EL s based on a regular EL screener, but who may have been inappropriately identified a s EL s based on their disabilit ies due to lack of accommodations or an alternate EL screener . 15. Can IDEA funds be used to identify a student with a disability , or a student suspected of having a disability, as an EL? Yes. It may be possible to use IDEA fund s in connection with the EL screening process , as long as using th ose funds is consistent with the requirements in Part B of the IDEA .3 IDEA Part B consists of the Grants to States program for children with disabilities ages three through 21, authorized b y section 611 of the IDEA, and the Preschool Grants program for children with disabilities ages three through five, authorized by section 619 of the IDEA . There are two possible funding sources :  IDEA Part B funds reserved f or other State -level activitie s (34 CFR § §300.704(b ) (Grants to States) and 300.814 (Preschool Grants)) ; and  Subgrants to eligible LEAs for the provision of special education and related services (34 CFR §§300.705 (Grants to States) and 300.815 -300.816 (Preschool Grants) ). It may be permissible for States and LEAs to use a portion of these funds to support the development and provision of an EL screener designed specifically for students with disabilities , and for appropriate accommodations for students with disabilities on the regu lar EL screener. 3 Funds paid to a State under Part B of the Act, including Part B funds reserved for other State -level activities, must be expended in accordance with all of the provisions of 34 CFR Part 300 (34 CFR §300.162(a) ). Amounts provided to the LEA under Part B of the Act must be expended in accordance with the applicable provisions of 34 CFR Part 300 (34 CFR §300.202(a) (1) ). 4 16. Does Federal law provide that ELs may not be evaluated for special education services for a certain period of time? No . There is no such requirement in either the ESEA or the IDEA . Specifically, under the IDEA, States and LEAs are requ ired to have policies and procedures to ensure that all children with disabilities residing in the State , and who are in need of special education and related services , are identified, located , and evaluated (34 CFR §§300.111 and 300.201 ). This obligation , known as “child find, ” is fully applicable regardless of a child’s ELP level, and include s highly mobile children and migrant children suspected of having a disability under the IDEA (34 CFR §300.111(c)(2) ). The LEA proposing to conduct an initial eval uation to determine whether a child qualifies as a child with a disability under 34 CFR §300. 8 must, after providing notice, obtain informed consent from the child’s parent b efore conducting the evaluation (34 CFR §300.300(a)). 4 Once parental consent is o btained, the evaluation must occur in a timely manner . Specifically, u nder 34 CFR §300.301(c), the initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation or, if the State has established a timeframe within whi ch the evaluation must be conducted, within the State -established time frame . 17. How can States ensure the appropriate identification of ELs with disabilities and prevent the over/under identification of ELs for special education services? To ensure that EL students with disabilities are appropriately evaluated and determined eligible for special education and related services, public agencies must adhere to applicable IDEA procedures in conducting evaluations and reevaluations of ELs (34 CFR §§300.300 - 30 0.311). As explained in the Dear Colleague Letter: English Learner Students and Limited English Proficient Parents jointly issued on January 7, 2015, by the Department and the Department of Justice (2015 DCL) :5 The Department s are aware that some school districts have a formal or informal policy of “no dual services, ” i.e. , a policy of allowing students to receive either EL services or special education services, but not both. Other districts have a policy of delaying disability evaluations of EL studen ts for special education and related services for a specified period of time based on their EL status. These policies are impermissible under the IDEA and Federal civil rights laws ... (p. 25) 4 Notice must be provided consistent with 34 CFR §§300.503 and 300.504. Parental consent mus t be obtained consistent with 34 CFR §300.9. 5 The DCL can be accessed at the following link: http://www2.ed.gov/about/offices/list/ocr/letters/colleague - el-201501.pdf . 5 Delaying a referral for an evaluation can result in the under -identification of ELs as “children with disabilities” under the IDEA. There is also the possibility of over - identification of ELs as having a disability if a school district wrongly determines that a student’s language difficulties are due to a disabilit y rather than lack of English language proficiency. Such determinations are inconsistent with the IDEA , which provides that a child’s lim ited English proficiency may not be the determinant factor in the child’s disability determination (34 CFR §300.306(b) (1)(iii) and (2)). To ensure that students , including ELs , are appropriately evaluated , the IDEA specifies that , among other requirements, assessments and other evaluation materials must be selected and administered so as not to be discriminatory on a ra cial or cultural basis , and be provided and administered in the student's native language or other mode of communication and in the form most likely to yield accurate information on what the student knows and can do academically, developmentally, and funct ionally, unless it is clearly not feasible to do so (34 CFR §300.304(c)(1)). Under the IDEA , a group of qualified professionals and the child’s parent determines whether a child is a “child with a disability ,” as defined in the IDEA (34 CFR §300.306(a)). In interpreting evaluation data for the purpose of determining a student’s eligibility and educational need s, this group must draw upon information from a variety of sources, including aptitude and achievement test s, parent input, teacher recommendations, and social or cultural background (34 CFR §300.306(c)(1)(i)). Therefore, proper application of these IDEA evaluation and eligibility requirements should ensure the appropriate identification of EL s as children with disabilities under IDEA. The followin g resources address practices that are important in avoiding misidentification of EL s as students with learning disabilities:  “Tools and Resources for Identifying All English Learners ,” available at http://www2.ed.gov/about/offices/list/oela/english -learner -toolkit/index.html ;  A report titled, “Processes and Challenges in Identifying Learning Disabilities Among English Language Learner Students in Three New York State Districts ,” prepared for the Institute of Education Sciences at the U.S. Department of Education in February 2010, available at http://ies.ed.gov/ncee/edlabs/projects/pro ject.asp?projectID=116 ; and  A report titled, “Identifying and Supporting English Learner Students with Learning Disabilities : Key Issues in the Literature and State Practice ,” prepared for the Institute of Education Sciences at the U.S. Department of Educ ation in July 2015, available at http://ies.ed.gov/pubsearch/pubsinfo.asp?pubid=REL2015086 . 6 Role of the IEP Team 18. W hat g uidance and resources are available to assist IEP Teams in de termin ing whether a n EL with a disability should take the regular ELP assessment with accommodations or an alternate assessment ? As explained in the 20 14 Qs and As question eight , States are required to develop guidelines for IEP Teams to use in deter mining what are appropriate accommodations on the annual ELP assessment and whether an EL with a disability needs to take an alternate assessment to the annual ELP assessment (34 CFR §300.160(b) -(c)). Federal resources to support States in this area a re offered through Department -funded technical assistance centers such as the National Center for Educational Outcomes (NCEO) and the Center for Parent Information and Resources (CPIR) . CPIR provides an annotated list of resources that address how to make determinations regarding accommodations and alternate assessments .6 While these r esources do not necessarily address ELP assessments, their content is generally applicable to ELP assessments . The following are examples from the list :7 Accommodations Ma nual: How to Select, Administer, and Evaluate Use of Accommodations for Instruction and Assessment of Students with Disabilities This includes fact sheets and teacher tools. www.osepideasthatwork.org/toolkit/accommodations_manual.asp ; Online Accommodations Bibliography NCEO resource on the range of possible accommodations and what empirical research studies have to say about the effects of various testing accommodations for s tudents with disabilities. www.cehd.umn.edu/NCEO/OnlinePubs/AccommBibliography/AccomStudies.htm ; Special Topic Area: Accommodations for Students with Disabilities NC EO answers frequently asked questions about testing accommodations for students with disabilities, connects you with State policies and research in this area, and offers a number of research -based publicatio ns to guide policy and decision -making. www.education.umn.edu/NCEO/TopicAreas/Accommodations/Accomtopic.htm ; Alternate Assessments – Frequently Asked Questions This FAQ is available as part of the OSEP Ideas That Wo rk Toolkit. www.osepideasthatwork.org/parentkit/AltAssessFAQ.asp ; and 6 These resources can be accessed at the following link: www.parentcenterhub.org/repository/assessment - accommodations/ . 7 Information about resources included in the responses to questions 1 7 and 18 is provided for the reader’s convenience and is inc luded here to offer examples of the many resources that educators, parents, advocates, administrators, and other interested parties may find helpful and use at their discretion. The inclusion of links to resources does not reflect their importance, nor is such inclusion intended to endorse any views expressed or materials provided. 7 The National Alternate Assessment Center The Center offers information and technical assistance on the design a nd administration of high -quality alternate assessments. www.naacpartners.org/Default.aspx . Accommodations and Alternate Assessments 19. May States develop alternate ELP standards for ELs with disabi lities to define what they know in English and are able to do in English? No. Under Title III of the ESEA, States must develop and implement one set of ELP standards, whi ch must be aligned to the State’s academic content and student academic achievement standards ( section 3113(b)(2) of the ESEA ). 20. Are all ELs with disabilities expected to have their ELP assessed in the same way as ELs without disabilities? The same ELP standards are the basis for the annual ELP assessment under section 1111(b)(7) of th e ESEA, and are required for all ELs with and without disabilities . However , appropriate accommodations can be provided on the regular ELP assessment, or an alternate assessment can be developed for an EL with disabilities who cannot take the regular ELP assessment even with accommodations as determined by the student’s IEP Team , so that the student can demonstrate growth and proficiency in the English language . See 20 14 Qs and As eight through 10 . 21. May a State use different cut scores or achievement standards on the State ELP assessment for determining whether EL s with disabilities are proficient in English? No. There is no provision in the ESEA that permits alternate achievement standards on the annual ELP assessment. However, to ensure that the l anguage proficiency of ELs with disabilities is validly and reliably assessed , the IEP Team must determine whether an EL with a disability needs to receive appropriate accommodations on the regular annual ELP assessment, or need s to take an alternate asses sment to the regular ELP assessment if he or she cannot take the regular ELP assessment, even with appropriate accommodations. 8 22. May a State use Title III funds to develop an alternate ELP assessment for students with disabilities? As stated in the Department’s October 2008 supplement, not supplant guidance, 8 most States will not be able to use Title III funds to pay for the cost of developing ELP assessments without violating the supplement, not supplant provision under section 3115(g) of the ESEA because Title I requires States to administer annual ELP assessments. While States cannot generally use Title III funds to dev elop alternate ELP assessments, section 6111(2)(B) of the ESEA provides funds for developing or improving ELP assessments , includi ng alternate ELP assessments, necessary to comply with section 1111(b)(7) of the ESEA . 23. May a State use Title III funds for SEA capacity -building activities, such as funding a meeting to gather stakeholders to make determinations about how to develo p an alternate ELP assessment? A State may be able to use Title III funds for these types of activities, depending on the circumstances. For example , States may use Title III State -level activity funds for planning and interagency coordination activiti es related to the formula subgrants, under section 3111(b)(2)(B) of the ESEA. See question 22 , however, regarding the limitations on using Title III funds to develop ELP assessments. Other Considerations 24. What responsibilities do States and LEAs have for students who were identified as ELs with d isabilities but whose parents/guardians refused EL services , with regard to the annual ELP assessment? The ESEA does not require that parents provide consent before an LEA or school screens and assesses a child as a potential EL in need of language acquisition services. In addition, section 1111(b)(7) of the ESEA requires an annual assessment of English proficiency of all students with limited English proficiency in the schools served by the State . Parents can refuse to have their children enrolled in an EL program. However, LEAs may not recommend that parents decline all or some services within an EL program for any reason, and a parent’s decision to opt out must be knowing and voluntary. See 20 15 DCL , pp. 2 9-32 . When a parent declines participation in services funded by Title III , the LEA must still assess the EL student ’s ELP with the annual ELP assessment, until that student no longer meets the definition of EL. If the EL is a student with a disability, the sa me analysis outlined in the 20 14 Qs and As questions eight through 10 applies regarding whether the student should be provided accommodations or an alternate ass essment to the annual ELP assessment. 8 This guidance can be accessed at the following link: http://www2.ed.gov/programs/sfgp/legislation.html . 9 Even if parents opt their children out of an EL pr ogram or specific EL services, the children retain their status as EL students . The LEA retains a responsibility to take the “affirmative steps” required by Title VI of the Civil Rights Act of 1964 and the “appropriate action” required by the Equal Educati onal Opportunities Act of 1974 to provide these children access to its educational programs. To ensure the needs of opt -out EL students are being met, LEAs must periodically monitor the progress of students who have opted out of EL programs or certain EL services and must inform the EL student’s parents if the EL student does not demonstrate appropriate growth in English proficiency or academic subjects due to language barriers. LEAs may meet their obligation to serve opt -out EL students in a variety of w ays ( e.g. , adequate training to classroom teachers on second language acquisition). See 20 15 DCL, pp . 29 -32 . For additional information on the rights of EL students, see the Office for Civil Rights Questions and Answers on the Rights of Limited -English P roficient Students , which can be accessed at the following link: http://www2.ed.gov/about/offices/list/ocr/qa -ell.html .

UNITED STATES DEPARTMENT OF EDUCATION JUL 18 201 4 Dear Chief State School Officers: We write to transmit the attached guidance document regarding the inclusion of English Learners (ELs) with disabilities in English language proficiency (ELP) assessments under Titles I and III of the Elementary and Secondary Education Act of 1965, as amended (ESEA). These are assessments designed to measure the progress of ELs in attaining English language proficiency . The Office of Elementary and Secondary Education (OESE) in the U.S. Department of Education (Department) administers the ESEA, and the Department's Office of Special Education and Rehabilitative Services (OSERS) administers Part B of the Individuals with Disabilities Education Act (IDEA). States and local educational agencies (LEAs) have raised questions to the Department related to the participation of ELs with disabilities in the annual State ELP assessment and the inclusion of their ELP assessment results in Title III Annual Measurable Achievement Objectives (AMAOs). Accordingly, OESE and OSERS are issuing the attached guidance to help States and LEAs understand how Part B of the IDEA and Titles I and III of the ESEA address the inclusion of ELs with disabilities in annual State ELP assessments. The attached guidance consists of frequently asked questions in five sections: (1) General Obligations; (2) Role of the individual ized education program (IEP) Team; (3) Accommoda tions and Alterna te Assessments; (4) Exit from EL Status; and (5) AMAOs. If you have additional questions related to this document, please contact Supreet Anand in OESE at Supree t.Anand@ed .gov or Jessica Spataro in OSERS at Jessica.Spataro @ ed .gov . Thank you for your continued efforts to ensure successful educationa l outcomes for all children. Sincerely, Deborah S. Delisle Assistant Secretary Office of Elementary and Secondary Education Michael K. Yudin Acting Assistant Secretary Office of Special Education and Rehabilitative Services Attachment cc: State Directors of Special Education Title III State Directors Title I State Directors

1 Questions and Answers Regarding Inclusion of English Learners with Disabilities in English Language Proficiency Assessments and Title III Annual Measurable Achievement Objectives Purpose and Background : 1 Education personnel in States, local educational ag encies (LEAs), and schools across the nation have described challenges in developing and administering English language proficiency (ELP) assessments required under Titles I and III of the Elementary and Secondary Education Act of 1965, as amended (ESEA) , to students who a re both English Learners (ELs) and students with disabilities. Some of these challenges include: 1) ensuring that all ELs with disabilities participate in the annual State ELP assessment; 2) administering an annual State ELP assessment tha t accurately measures the English language proficiency of students with disabilities, including pr oviding individual appropriate accommodations in accordance with a student’s individualized education program (IEP), as required by the Individual s with Disab ilities Education Act (IDEA) ; 3) administering appropriate alternate assessments to the annual State ELP assessment in accordance with the student’s IEP, as required by the IDEA; and 4) determining how to include the results of annual State ELP assessments for students with disabilities in making accountability determinations under the ESEA. Th e questions and answers included in this document are intended to help States and LEAs address the se challenges, and more broadly, to understand how Part B of the ID EA and Titles I and III of the ESEA address the inclusion of ELs with disabilities in annual State ELP assessments. These are assessments designed to measure the progress of ELs in attaining English language proficiency . In this document, the term “Englis h Learner ” (EL) mean s students who are considered limited English proficient ( LEP) as defined in section 9101(25) of the ESEA. 2 The term “students with disabilities, ” as it is used in this document , refers to “children with disabilities” who are eligible f or services under the IDEA, as defined in section 602(3) of that Act and 34 CFR §300.8. While students with disabilities are also protected under Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Ac t (ADA) , which are civil rights 1 The Department has determined that this document is a “significant guidance document” under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), available at www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf . The purpose of this guidance is to provide States, local education al agencies, and schools with information to assist them in meeting their obligations under Titles I and III of the Elementary and Secondary Educ ation Act of 1965, as amended. This guidance does not impose any requirements beyond those required under applicable law and regulations. It does not create or confer any rights for or on any person. If you are interested in commenting on this guidance or if you have further questions that are not answered here, please e -mail OESEGuidanceDocument@ed.gov using the s ubject “Inclusion of English Learners with Disabilities” or write t o us at the following address: U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW, Washington, D.C. 20202. 2 The ESEA defines the term “limi ted English proficient” (LEP) in part as students “…whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual the ability to meet the State's proficient level of achievement on State as sessments…” (ESEA section 9101(25)). The complete definition of limited English proficient is available at: www2.ed.gov/policy/elsec/leg/esea02/pg107.html#sec9101 .www2. ed.gov/policy/elsec/leg/esea02/pg107.html#sec9101 www2.ed. gov/policy/elsec/leg/esea02/pg107.html#sec9101 . For Title III purposes, the U.S. Department of Education (ED) refers to the four domains of the English language as “speaking, listening, reading and writing,” as set forth in the Notice of Final Interpretations for Title III (73 Fed.Reg. 61828, 61829 n.5). 8 Accommodations and Alternate Assessments 8. Wh at actions must States take to meet the IDEA requirements relat ed to accommodations and alternate assessments for the annual State ELP assessment? Under the IDEA, a State must : 1) D evelop guidelines for the provision of appropriate accommodations . The State’s guidelines must identify only those accommodations for each assessment that do not invalidate the score, and instruct IEP Teams to select, for each assessment, only those accommodations that do not invalidate the score (34 CFR §300.160(b)); and 2) Develop an d implement alternate assessments and guidelines for the participation of students with disabilities in alternate assessments for those students who cannot participate in regular assessment s, even with accommodations, as indicated in their respective IEPs (34 CFR §300.160(c)(1)). Because the annual ELP assessment is a State assessment, these guidelines must also address the participation of ELs with disabilities in alternate assessments to the regular ELP assessment . 9. How can an IEP Team determine whether an EL with a disability should receive accommodations in order to take the annual State ELP assessment? An IEP Team must make this determination on a case -by -case basis in light of the particular needs of an EL with a disability . As part of the process of determining the appropriate accommodations for ELs with disabilities on the annual State ELP assessment, the IEP Team must consider the student’s language needs as they relate to his or her IEP ( 34 CFR §300.324(a)(2) (ii)). T he IEP Team then needs to deter mine if there is an appropriate State- approved accommodation(s) for the annual State ELP assessment that would not invalidate the test s core , which would allow the student to participate in the assessment to demonstrate what the student knows and can do. If the IEP Team determines that the student needs accommodations to take the regular ELP assessment or an alternate assessment, then the student’s IEP must contain a statement of the individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the student on that State assessment (34 CFR §300.320(a)(6)(i)). Appropriate and allowable accommodations used for testing should generally be the same as those used in the classroom in accordance with the s tudent’s IEP . A n IEP Team could determine that accommodations need to be used for the entire ELP assessment, or only for part of the assessment. For example, an accommodation that is appropriate for only one of the four domains of language (speaking, listening, reading, or writing ) would be used just for that particular subtest. The IEP Team will need to ensure that the student is familiar with the accommodations to be used for the ELP assessment, that the student is using similar accommodations in classr oom instruction, and that the student could benefit from similar accommodations on the ELP assessment. 9 10. How can an IEP Team determine whether an EL with a disability should take an alternate assessment instead of the regular ELP assessment? An IEP Team must make this determination on a case -by -case basis in light of the particular needs of an EL with a disability. If an IEP Team for a particular EL with a disability determine s that the student cannot participate in the regular State ELP assessment, even with individual appropriate accommodations , then the IEP Team would determine that the student needs to take an alternate assessment to the regular ELP assessment . In this situation , the Team must include in the child’s IEP a statement of: (1) Why the child c annot participate in the regular ELP assessment; and (2) Why the particular alternate assessment selected is appropriate for the child (34 CFR §300.320(a)(6)(ii) ). Consistent with applicable State guidelines for alternate assessments, States need to identify how an EL with a disability can be appropriately and validly assessed through an alternate assessment to guide IEP Team decisions in this area . An alternate ELP assessment could be a traditional paper and pencil assessment, or another appropriate method for assessing the student’s language proficiency, such as a computer-based adaptive assessment. Regardless of what alternate assessment is used, it must be a valid and reliable assessment that : 1) provides evidence of progress toward the a ttainment of English proficiency; 2) is aligned with State ELP standards; and 3) yields a valid score. ESEA section 3122(a)(3); Notice of Final Interpretations for Title III, Interpretation #2 (Oct. 17, 2008), 73 Fed. Reg . 61828, 61831-61833. States should examine their alte rnate assessment guidelines to ensure that they address the participation of ELs with disabilities in alternate assessments if those students cannot be appropriately assessed with the regular ELP assessment , even with individual appropriate accommodations . Exit from EL Status 11. When and how can an EL with a disability be exited from EL status? An EL with a disability can be “exited” from EL status when he/she no longer meets the definition of an EL (see footnote on page 1) . This occurs when the student me ets the State’s definit ion of “proficient” in English. Depend ing on the State’s definition of proficiency, the LEA, school personnel, and/or the IEP Team may have input into the decision of whether a student is proficient in English. H owever, t here is no provision in the IDEA that would authorize the IEP Team to remove the “EL” designation before the student has attained English proficiency . In addition, other LEA and /or school personnel do not have the authority under Federal law to remove a student’s EL designation before the student has been deemed proficient in English solely because the student has an IEP. 10 Annual Measureable Achievement Objectives ( AMAOs) 12. Must the ELP assessment results for all ELs with disabilities be included in Title III AMAOs 1 and 2? Yes. Title III AMAOs have three parts, two of which (AMAOs 1 and 2) are based upon the State ELP assessment. Results from ELP assessments for all ELs, including students with disabilities, must be included in both AMAO 1 (making progress in Engli sh) and AMAO 2 (attaining ELP), as described in section 3122(a)(3) of the ESEA. For some ELs with disabilities, accommodations may be necessary on the ELP assessment (see question nine), and an alternate ELP assessment may be necessary for an even smaller group of ELs with disabilities (see question ten), but all ELP assessment results must be included in the Title III accountability calculations under AMAOs 1 and 2. 13. Are the ELP assessment results for ELs with disabilities relevant to AMAO 3 of Title III? No. Under Title III, the third AMAO (AMAO 3) is based on making adequate yearly progress (AYP) under Title I for the EL subgroup. AYP is comprised of meeting annual measurable objectives (AMOs) based on proficient achievement on State reading/language arts and math ematics assessments, achieving 95 percent participation on those assessments, and meeting the other academic indicator, which is gr aduation rate for high schools. The ELP assessment results are not a factor in AYP calculations. A State that is participating in ESEA flexibility may have received a waiver of making AYP determinations. For purposes of measuring AMAO 3, therefore, the State would determine whether the EL subgroup met the State’s AMOs in reading/language arts and mathematics , the 95 percent participation rate requirement, and, for an LEA that includes one or more high schools, graduation rate. Under the Title I regulations in 34 C.F.R. §200.13(c)(2)(i), in calculating AYP or accountability determinations under ESEA flexibility , a State may include the proficient and advanced scores of students with the most significant cognitive disabilities who take an alternate assessment in reading/language arts or mathematics based on alternate academic achievement standards described in 34 C.F .R. §200.1(d), provided that the number of such scores at the LEA level and at the State level, separately, does not exceed 1.0 percent of all students in the grades assessed. Som e ELs with disabilities may b e among the students with the most significant c ognitive disabilities covered by these regulations. These regulation s, however, do not apply to ELP assessment s and, consequently, to AMAOs 1 and 2 . In reporting under Title I and targeting interventions in Title I schools , States must take into account t he performance of student subgroups, including ELs and students with disabilities, on reading/language arts and mathematics assessments . Similarly, States must report the graduation rate of each subgroup for high schools. Thus the scores and, if applicable , graduation rate of an EL with a disability would be included under both the EL subgroup and the students with disabilities subgroup (as well as under any other subgroup to which the student belongs). The ESEA does not require subgroup reporting for the E LP assessment under Title III .