Legislative Background

As introduced in the IDEA Amendments of 1997 (IDEA 1997), an alternate assessmentis an assessment designed for children with disabilities who are unable to participatein the regular state assessment, even with appropriate accommodations (20 U.S.C. 1412(a)(16)). IDEA 1997 required states to develop and conduct alternate assessments no later than July 1, 2000. The statute did not place specific limits on the number of students who could participate in alternate assessments nor did it specify the content of alternate assessments. However, the discussion accompanying the final regulations to implement Part B of that law stated that "it should be necessary to use alternate assessments for a relatively small percentage of children with disabilities" and "alternate assessments need to be aligned with the general curriculum standards set for all students and should not be assumed appropriate only for those students with significant cognitive impairments" (64 Fed. Reg. 12564-12565 (Mar. 12, 1999); 34 C.F.R. § 200). States responded to IDEA 1997 by implementing a variety of alternate assessment approaches, including portfolios, checklists, and individualized education program (IEP) analysis, which varied in the degree of emphasis on general education curriculum content versus a separate curriculum to develop functional skills (Thompson and Thurlow 2000).

Federal policies since IDEA 1997 have required increased integration of alternate assessments into general school systems for academic accountability. The No Child Left Behind Act of 2001 (NCLB) required states to adopt challenging academic standards that were "the same academic standards that the State applies to all schools and children in the State." Two types of standards were required: academic content standards and academic achievement standards. The statute called for academic content standards that "(I) specify what children are expected to know and be able to do; (II) contain coherent and rigorous content; and (III) encourage the teaching of advanced skills" and academic achievement standards that "(I) are aligned with the State's academic content standards; (II) describe two levels of high achievement (proficient and advanced) that determine how well children are mastering the material in the State academic content standards; and (III) describe a third level of achievement (basic) to provide complete information about the progress of the lower-achieving children toward mastering the proficient and advanced levels of achievement." (20 U.S.C. 6311 § 1111(b)(1)(D)).

In 2002, regulations implementing the assessment provisions of NCLB stated that "the State's academic assessment system must provide for one or more alternate assessments for a student with disabilities [who] cannot participate in all or part of the State assessments . . . even with appropriate accommodations." These regulations further required that "alternate assessments must yield results in at least reading/language arts, mathematics, and, beginning in the 2007–08 school year, science" (67 Fed. Reg. 45041-45042 (Jul. 5, 2002); 34 C.F.R. § 200).

On December 9, 2003, the U.S. Department of Education issued final regulations under NCLB permitting states to develop "through a documented and validated standards-setting process" alternate achievement standards for students with the most significant cognitive disabilities, "provided that those standards (1) Are aligned with the State's academic content standards; (2) Promote access to the general curriculum; and (3) Reflect professional judgment of the highest achievement standards possible" (34 C.F.R. § 200.1 (2003)). An alternate achievement standard is "an expectation of performance that differs in complexity from a grade-level achievement standard" (68 Fed. Reg. 68699 (Dec. 9, 2003)). States may include proficient and advanced scores of students with the most significant cognitive disabilities based on the alternate achievement standards in determining "adequate yearly progress," provided that the number of those proficient or advanced scores at the state and local levels does not exceed 1 percent of all students in the grades assessed in reading/language arts and in mathematics, unless the state has received an exception permitting it to exceed this cap (34 C.F.R. § 200.13(c) (2003)).

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