NEW! New Regulation 34 CFR 300.160.

In essence, it’s a new development about accommodations! The Regulations now specify that accommodations on state or district tests need to lead to VALID results!

On April 9, 2007, as you probably know, the US Department of Education issued NCLB and IDEA regulations dealing with assessments (both regular assessments and accommodations, and alternate and modified assessments). For those of us who believe in standards when testing and in valid results from testing, this new regulation should be very helpful.

The relevant sections of the new regulation, 34 CFR 300.160, Participation in assessments, are cited below. In brief, state or local policies and guidance may not allow accommodations that invalidate scores (such as reading a reading test). Emphasis added.

(a) General. A State must ensure that all children with disabilities are included in all general State and district-wide assessment programs, including assessments described under section 1111 of the ESEA, 20 U.S.C. 6311, with appropriate accommodations and alternate assessments, if necessary, as indicated in their respective IEPs.

(b) Accommodation guidelines.
(1) A State (or, in the case of a district-wide assessment, an LEA) must develop guidelines for the provision of appropriate accommodations.
(2) The State’s (or, in the case of a district-wide assessment, the LEA’s) guidelines must–

(i) Identify only those accommodations for each assessment that do not invalidate the score; and
(ii) Instruct IEP Teams to select, for each assessment, only those accommodations that do not invalidate the score.

(d) Explanation to IEP Teams. A State (or in the case of a district-wide assessment, an LEA) must provide IEP Teams with a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on modified or alternate academic achievement standards, including any effects of State or local policies on the student’s education resulting from taking an alternate assessment based on alternate or modified academic achievement standards (such as whether only satisfactory performance on a regular assessment would qualify a student for a regular high school diploma).

(f) Reports. An SEA (or, in the case of a district-wide assessment, an LEA) must make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(1) The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations (that did not result in an invalid score) in order to participate in those assessments.
This regulation is new! It does not replace another regulation–it creates a new one. It went into effect on May 9, 2007. The IDEA now explicitly requires that states or local agencies that do testing allow and report scores taken only with accommodations that do not invalidate results. This is consistent with the earlier regulation defining “appropriate accommodations,” at 34 CFR 300.320 (a)(6)(i).

I believe this development will strengthen the attempt by educators to assure that test results are valid. Valid test results will, I believe, lead to better teaching and learning!

About Miriam

Miriam Kurtzig Freedman, JD, MA—an expert in public education, focused on special education law— is a lawyer, author, speaker, consultant, and reformer. For more than 35 years, Miriam worked with educators, parents, policy makers, and citizens to translate complex legalese into plain English and focus on good practices for children. Now, she focuses her passion on reforming special education, with her new book, Special Education 2.0—Breaking Taboos to Build a NEW Education Law. Presentations include those at the AASA Conference, Orange County (CA), Boston College (MA), CADRE (OR), and the Fordham Institute (DC). Her writings have appeared in The Wall Street Journal, Education Week, Education Next, Hoover Digest, The University of Chicago Law Review on line,, and The Atlantic Monthly on line.

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