http://www.ed.gov/admins/lead/speced/toolkit/index.html
and at
www.ed.gov/legislation/FedRegister/proprue/2005-4/121505a.html

Letter from Margaret Spellings on the Proposed 2% Rule
http://www.ed.gov/policy/speced/guid/secletter/051214.html

The US Department of Education

Affects NCLB Regulations 200.2 (b), 200.3 (a)(1), 200.6(a), 201.1(d), 200.13(c)(3)& (4) and 200.2( c ) 1-3)
 

What NCLB says:
•	The law prohibits states and school districts from intentionally excluding students with disabilities from the NCLB accountability systems. Excluding students with disabilities from testing is also a violation of of IDEA, the Individuals with Disabilities Education Act.
•	The law requires that the assessment scores taken by children with disabilities be disaggregated and be annually reported to parents and the public.
•	Most students with disabilities should participate in the same tests taken by their peers AND AT THE SAME GRADE LEVEL. Some of these students should receive accommodations such as increased time or the use of assistive technology to ensure, but the law is vague about who these students are, and what the states aqre supposed to do.
The Changes:
•	This proposed rule allows states to identify up to 2 percent of children who are in special education who have “persistent academic disabilities” to be tested with an alternative assessment based on a “modified” test. The US Department of Education released proposed regulations December 2005 that requires alignment of the “modified assessments” with grade-level standards, but still reflecting the reduced breadth or depth of content. States may use their regular assessments as the basis for developing the modified assessments.
•	The new assessments are designed for a group of students with disabilities who can make progress toward, but may not be able to reach grade level achievement standards in the same time frame as other students. §3 These students must be served under the Individuals with Disabilities Act (IDEA), but are not counted in the 1 percent with the “most severe cognitive disabilities.” This is a separate policy and should not be confused with the new 2 percent policy related to students in IDEA who have “persistent academic disabilitites.”See PEN Notice Under Regulatory Changes, “Students with Disabilities: 1 percent of the Studernt “Most Severe Cognitive Disabilities”. §4 The proposed rule is targeted to those children known as “gap kids,” who are academically below grade level, but are higher functioning than students with “severe” cognitive disabilities.”
How It Was Before the Rules Change:
•	First, these students were not specifically identified in the original law. In other words, those students were required, under the previous provisions, to be assessed by their achievement gauged by standards that could be deemed inappropriate for their intellectual development. The new proposed change allows states and school districts to more accurately gauge student progress based on the alternative assessment, but still testing at grade level.
Provisions:
•	Would allow states to develop modified achievement standards aligned with grade-level curriculum, but which reflect “reduced breadth or depth of grade-level content
•	Allows states to establish guidelines for individualized education teams to identify which students can be tested using the modified assessments, as long as those students still receive grade-level instruction in relevant subjects and work toward a regular high school diploma
•	Allows states to include “proficient” scores from modified assessments to be counted in adequate yearly progress (AYP) calculation, up to a cap of 2 percent
•	States may continue to count students scores in the “students with disabilities” subgroup for up to two years after they no longer receive special education services
Issues That Surround the 2 Percent Rule
•	Many states are balking at teaching an testing students on content at their grade level, rather than their developmental level. They argue that students cannot learn advanced material if they have not yet learned the fundamentals at a lower grade.
•	Some contest ED’s requirement that a student tested under modified standards must still be eligible for a regular diploma. Many at the state level say that graduation is a state responsibility and no portion of it should be federally regulated.
•	Some states argue that it will not be easy or inexpensive to adapt existing tests and create the new modified assessments.
Many states were advising ED to o the Following:
•	Develop criteria for identifying students eligible for modified testing. Most states are waiting for the final regulations before they begin to develop their modified assessments;
•	Provide clear examples of modified achievement standards for each
•	Provide examples of achievement benchmarks and assessments