On August 6, 2002, Education Secretary Rod Paige released proposed regulations on part A of Title I of the No Child Left Behind Act of 2001 (NCLB Act) and invited the public to submit comments regarding the proposals. Major provisions in the proposed regulations included: (1) State Accountability Systems; (2) Adequate Yearly Progress; (3) Schoolwide Programs; (4) LEA and School Improvement; (5) Qualifications of Teachers and Paraprofessionals; (6) Participation of Eligible Children in Private Schools; (7) Allocations to LEAs; and (8) Fiscal Requirements.
In response to the secretary’s invitation in the Notice of Proposed Rule Making (NPRM), which closed on September 5, 2002, approximately 140 parties submitted over 700 comments. Under the direction of the secretary, the Department reviewed and considered each comment submitted. The secretary made numerous changes to the proposed regulations in response to these comments, though in many cases he determined that the NPRM best reflected both the spirit and intent of the NCLB Act. The secretary also made changes resulting from the final review process that were intended to further clarify federal, state, and local responsibilities under the NCLB Act, as well as to correct errors in the NPRM. What follows are brief explanations of significant policies in the final regulations, including those that changed and those that did not change in response to public comments:
Adequate yearly progress
AYP Requirements: The final regulations clarified, in response to numerous comments from states and other organizations, the flexibility available to states in defining adequate yearly progress (AYP). One of the cornerstones of the NCLB Act is its strong emphasis on accountability for results, including specific, rigorous statutory requirements that states must implement to determine the annual yearly progress of each public school, LEA, and the state itself. These requirements reflect the conviction of President Bush and Congress that we can meet the goal of leaving no child behind only if we hold schools and LEAs accountable for the improved achievement of all students. The final regulations faithfully implement the statutory provisions governing AYP, while including additional flexibility wherever possible. To meet the requirements in NCLB and these final regulations, a state may continue to use its current state accountability system, consistent with the secretary’s July 24, 2002 Dear Colleague letter, if that system integrates adequate yearly progress as defined in the statute and regulations into its system. A state must submit evidence to the secretary, for peer review, that thoroughly describes the state’s accountability system and demonstrates how it has integrated the AYP provisions required by the statute and regulations.
Students with the Most Significant Cognitive Disabilities: Section 200.13 of the NPRM would have allowed the use of alternate achievement standards for students with the most significant cognitive disabilities for determining the AYP of states and LEAs, provided that use did not exceed 0.5 percent of all students. Numerous comments were received on this proposal, with many of them indicating that commenters misunderstood this proposal as limiting the number of students with disabilities who could take an alternate assessment, rather than providing flexibility by allowing the use of alternate achievement standards to determine proficiency for calculating AYP for a limited group of students with disabilities. Because the secretary believes that the policy may need further clarification, the secretary will seek public comment in an NPRM to be published shortly on a proposed policy regarding the appropriate use of alternate achievement standards in determining AYP for students with the most significant cognitive disabilities. However, because it is critical to ensure that students with disabilities are not excluded from state accountability systems, the final regulations provide that the same grade level academic content and achievement standards that apply to all public schools and public school students in the state will be applied to alternate assessments. The secretary anticipates that the separate NPRM will propose an exception to this policy for a small group of students with severe cognitive disabilities.
Graduation Rates and Other Indicators: Section 200.19 of the NPRM required states to include graduation rates and one other academic indicator for elementary and middle schools in their definition of AYP. The final regulation clarifies that states are required to use the other indicators to determine whether or not a school or LEA has made adequate yearly progress.
School improvement, choice and supplemental education services
School Improvement Timeline: Section 200.32 of the NPRM required an LEA to count as a “full school year” of improvement any year in which a school is identified for school improvement after the beginning of the school year. Several commenters expressed concern that this provision potentially “punished” the LEA and school for the state’s failure to provide assessment results in time for identification prior to the beginning of the school, and that it conflicted with the statutory emphasis on a “full school year” of improvement before subjecting the school to further improvement measures as required by the NCLB Act. The alternative, however, is to effectively give the LEA and school an additional year of improvement before moving to the next stage of improvement, a delay that the secretary believes would severely undermine the strong accountability, with consequences for schools and options for students, that is at the core of the NCLB Act. For this reason, the final regulations maintain the NPRM language, which emphasizes the importance of the statutory requirement that identification occur “before the beginning of the school year following such failure to make adequate yearly progress.” To reinforce this principle, the secretary clarified in §200.49(e)(1) that SEAs must make available assessment data for a given school year to LEAs “in such time as to allow for the identification” for improvement prior to the beginning of the next school year.
Restructuring: Section 200.34 of the NPRM did not address school status after implementation of restructuring. The final regulations clarify that until a restructured school makes AYP for two consecutive years, the LEA must continue to offer public school choice options and make available supplemental educational services to eligible students enrolled in the school.
School Choice and Capacity: Numerous commenters requested clarification as to whether capacity constraints-such as class-size limits, existing overcrowding of schools, and health and safety requirements-limit an LEA’s obligation to provide public school choice options to students in schools identified for improvement, corrective action, or restructuring. As the secretary previously made clear in “Dear Colleague” letters, nonregulatory guidance, proposed regulations, and other policy statements, the NCLB Act does not permit an LEA to preclude choice options on the basis of capacity constraints. Rather, the law requires an LEA to take measures to overcome capacity issues that otherwise might prevent the LEA from complying with Title I public school choice requirements. This could mean, for example, adding classes and hiring additional teachers so that the LEA can offer choices to students while adhering to state-mandated class size limits. In addition, LEAs have broad latitude in determining the schools to which students can transfer. They may, for example, consider health and safety factors in providing transfer options to students and their parents. Such factors do not permit an LEA, however, to simply avoid its obligation to provide public school choice options as required by section 1116 of ESEA. The expectation is that LEAs will need to find ways to provide choice, consistent with their obligations to provide a healthy and safe learning environment. To clarify this expectation, §200.44(d) of the final regulations specifies that an LEA may not use lack of capacity to deny an eligible student the opportunity to transfer to another school not identified for improvement.
Supplemental Educational Services for Students with Disabilities: Section 200.47(b)(3) of the NPRM stated: “A private provider may not, on the basis of disability, exclude a qualified student with disabilities or a student covered under Section 504 if the student can, with minor adjustments, be provided supplemental educational services designed to meet the individual educational needs of the student unless otherwise provided by law.” NPRM provisions §200.46(a)(4) and §200.47(a)(5) required LEAs and SEAs to ensure that eligible students with disabilities and students covered by Section 504 receive appropriate supplemental educational services and accommodations in the provision of those services. The proposed regulation potentially created confusion regarding the civil rights obligations that are applicable when students with disabilities and students covered by Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 receive supplemental educational services. The final regulation is amended to eliminate the “minor adjustments” standard for private providers of supplemental services. SEAs and LEAs are responsible for ensuring that the supplemental educational service providers made available to parents include some providers that can serve students with disabilities and students covered by Section 504 with any necessary accommodations, with or without the assistance of the SEA or LEA.
Supplemental Educational Services for Limited-English-Proficient Students: The final regulation clarifies that both the LEA and SEA are required to ensure that students with limited English proficiency receive appropriate supplemental educational services and language assistance in the provision of those services. The NPRM did not address this issue.
Scientifically Based Research and Supplemental Services Providers: Section 200.47(b)(4)(ii)of the NPRM prohibited states from requiring providers, as a condition of approval, to demonstrate that their instructional strategies were based on scientifically based research. The final regulation removes this restriction.
Funding for Supplemental Services and School Choice: In response to numerous comments, §200.48(a)(2) of the final regulation clarifies that an LEA is required to spend an amount equal to 20 percent of its Title I, Part A allocation on choice-related transportation and supplemental educational services, unless a lesser amount is needed to meet parental demand. Within this 20-percent amount, an LEA has discretion to determine the allocation of resources to choice-related transportation or supplemental educational services, provided that it spends at least one-quarter of the total?or an amount equal of 5 percent of its Part A allocation?on each activity. An LEA is not required to meet this 5 percent requirement, however, if it can satisfy all parental requests for either choice-related transportation or supplemental educational services with a lesser amount. Numerous commenters claimed that section 1116(b)(10)(B) permits an LEA to satisfy its obligation to provide supplemental educational services once it has spent an amount equal to 5 percent of its Part A allocation on such services. The secretary believes, however, that this provision merely specifies the maximum required contribution of Part A funds toward the potential 20 percent total. The regulation also clarifies that administrative costs may not count towards the 20 percent requirement.
Alternate Certification: The NPRM permitted a teacher to comply with the “full State certification” component of the “highly qualified” definition through alternate routes to certification. The final regulations specify that teachers pursuing certification through such “alternate routes” must receive high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching; participate in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program; assume functions as a teacher only for a specified period of time not to exceed three years; and demonstrate satisfactory progress toward full certification as prescribed by the state. The final regulations also require states to ensure that teachers pursuing alternate routes to certification comply with these provisions.
Highly Qualified Teachers: Many commenters noted that the NPRM did not specifically address whether special education and bilingual or ESL teachers have to meet the “highly qualified” requirements of the NCLB Act. The final regulations maintain the NPRM language, which is faithful to the Act in clearly stating that all teachers of core subjects must be highly qualified by 2005-2006, and this requirement is further clarified in the analysis of comments and changes. Because students with limited English proficiency and students with disabilities must meet the same standards as all other students, their teachers must meet the same standards for content knowledge as other teachers. However, special educators who do not directly instruct students on any core academic subject, or who only provide consultation to highly qualified teachers of core academic subjects in adapting curricula, using behavioral supports and interventions, and selecting appropriate accommodations, are not subject to the same requirements that apply to teachers of core academic subjects. SEAs and LEAs must ensure that all special education personnel, including related service providers, meet the personnel standards requirements of section 612(a)(15) of the IDEA and 34 CFR §300.136. Special education teachers who are providing instruction in core academic subjects also must meet the “highly qualified” standards of the law. Both the statute and the final regulations do permit flexibility in determining how teachers meet the “highly qualified” requirements. For example, teachers may demonstrate competency by taking a test, and states have flexibility to tailor those tests to the subjects taught by teachers, including special education teachers and teachers of LEP students. The secretary will provide additional information on this flexibility in nonregulatory guidance.