Chapter 1 Program in Local Educational Agencies and Chapter 1Migrant Education Program; Final Rule DEPARTMENT OF EDUCATION

SUMMARY: The Secretary amends the regulations governing Part A and Part

D, Subpart 1 of Chapter 1 of Title I of the Elementary and Secondary

Education Act of 1965. Part A of Chapter 1 provides financial

assistance through State educational agencies (SEAs) to local

educational agencies (LEAs) to meet the special educational needs of

educationally deprived children in school attendance areas with high

concentrations of children from low-income families and children in

local institutions for neglected or delinquent children. Part D of

Chapter 1 authorizes a Migrant Education Program (MEP) that provides

financial assistance to SEAs to establish and improve programs to meet

the special educational needs of migratory children of migratory

agricultural workers or fishermen.

These amendments afford flexibility to States that have developed

assessment systems that support their systemic education reform efforts

but that are inconsistent with the national evaluation standards in

Subpart H of 34 CFR Part 200 and Subpart E of 34 CFR Part 201. These

regulations contain less prescriptive national standards that enable

States to request an exception to the generally applicable national

evaluation standards in order to use their own assessment systems to

evaluate the effectiveness of their Chapter 1 and MEP programs.

EFFECTIVE DATE: These regulations take effect either 45 days after

publication in the Federal Register or later if the Congress takes

certain adjournments, except that compliance is not required with the

information collection requirements in Sec. 200.90 until the

information collection requirements contained in that section have been

submitted by the Department of Education and approved by the Office of

Management and Budget under the Paperwork Reduction Act of 1980. If you

want to know the effective date of these regulations, call or write the

Department of Education contact person. A document announcing the

effective date will be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: For Part 200, Wendy Jo New, U.S.

Department of Education, 400 Maryland Avenue S.W., Portals Building,

Room 4400, Washington, D.C. 20202-6132. Telephone: (202) 260-0982. For

Part 201, James English, U.S. Department of Education, 400 Maryland

Avenue S.W., Portals Building, Room 4104, Washington, D.C. 20202-6135.

Telephone: (202) 260-1394. Individuals who use a telecommunications

device for the deaf (TDD) may call the Federal Information Relay

Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern

time, Monday through Friday.

SUPPLEMENTARY INFORMATION: On March 10, 1994, the Secretary published a

notice of proposed rulemaking (NPRM) in the Federal Register (59 FR

11444-46), that proposed conditions for granting exceptions to the

national evaluation standards in Subpart H of Part 200 and in Subpart E

of Part 201 to enable States that are implementing new assessment

systems that support statewide education reform to use those

assessments--under less prescriptive national standards--to measure the

effectiveness of their Chapter 1 and MEP programs. Under the NPRM, the

Secretary could have approved a State's request for an exception to the

generally applicable Chapter 1 national evaluation standards if the

State had an assessment system that had been developed to support the

State's education reform efforts, the assessment system provided

information about the yearly performance of each Chapter 1 school and

could be aggregated for the LEA as a whole, and that information was

from at least one grade level in each school, and measured student

achievement in basic and more advanced skills and challenging subject

matter. The same standards were proposed to apply to the MEP, except

that the assessment system would have to provide a statewide estimate

of the yearly performance of migratory children in the State, rather

than information on individual schools. The NPRM also proposed to

permit States to request exceptions for particular LEAs and operating

agencies that, absent State systems, have local assessment systems in

place that support their education reform efforts and meet these same

standards.

These final regulations make the following changes to the NPRM.

Most significantly, Secs. 200.90(b) and 201.57(b) have been revised to

require that, in addition to the conditions in the NPRM, a State

assessment system for which an exception is being requested (1) must

yield consistent results that accurately reflect what the assessment

system was designed to measure; and (2) does not impair an SEA's or

LEA's ability to account for results under Chapter 1 or the MEP. The

Secretary has added these standards to ensure that State assessment

systems being developed to support systemic education reform efforts

are of high quality and that exceptions under these regulations would

only be granted if evaluation results provide meaningful indicators

about the effectiveness of Chapter 1 and MEP programs.

In addition, Sec. 200.90(b) has been revised to make clear that a

State assessment system must provide information from at least one

grade level in each Chapter 1 school. Sections 200.90(c) and 201.57(c)

have also been revised to clarify that an SEA may seek an exception for

LEAs or operating agencies that have assessment systems linked to local

reform efforts that meet the same standards that apply to State

assessment systems. Finally, Sec. 200.80(a) has been revised to correct

an erroneous cross-reference.

These regulations support the efforts of those States that will be

voluntarily implementing reform plans under the Goals 2000: Educate

America Act (Goals 2000). Section 306(c) of Goals 2000 requires the

reform plans to include a description of the process States will use to

develop State assessments aligned with the State's content standards

and that the assessments be for all students, including students with

diverse learning needs. These regulations will allow States that have

assessment systems tied to statewide education reform, developed under

Goals 2000 or another reform effort, to avoid duplication by using

their statewide assessments for Chapter 1 and MEP purposes if they meet

less prescriptive national standards contained in these regulations.

In granting an exception, the Secretary will not be waiving any

statutory requirements. SEAs and LEAs will continue to evaluate the

effectiveness of their Chapter 1 programs under section 1019, in

accordance with less prescriptive standards contained in these

regulations. SEAs and LEAs will also continue to perform the annual

review required under section 1021(a), measure sustained program gains

under sections 1019(a)(3) and 1021(a)(2), identify schools and students

in need of program improvement under section 1021(b) and (f), and meet

schoolwide project accountability requirements under section 1015(e),

using the State assessment and any other sources of information deemed

appropriate. Similarly, under the MEP, SEAs will still need to ensure

that they and their operating agencies adhere to the requirements of

sections 1012(b), 1019(b), and 1202(a)(6) to use desired outcomes for

evaluating performance, to collect and report demographic and

performance data, and to examine sustained gains for formerly migratory

children.

The Secretary wishes to emphasize that no State is required to make

any changes in its Chapter 1 or MEP testing programs as a result of

these regulations. Rather, the exceptions are intended to provide

flexibility to enable States to use their own assessment systems for

Chapter 1 and MEP purposes if they wish to do so.

Analysis of Comments and Changes

In response to the Secretary's invitation in the NPRM, 17 parties

submitted comments on the proposed regulations. An analysis of the

comments is published as an appendix to this document.

Executive Order 12866

These final regulations have been reviewed in accordance with

Executive Order 12866. Under the terms of the order, the Secretary has

assessed the potential costs and benefits of this regulatory action.

The potential benefits associated with these regulations are clear.

Rather than continuing to operate multiple assessment systems for

Federal and State purposes, some States may use their State systems to

evaluate their Chapter 1 and MEP programs. Moreover, the potential

costs associated with these regulations are negligible. Because the

regulations permit States to use their own assessment systems, States

will incur few, if any, additional costs. To the contrary, these

regulations will result in reduced costs for States that might

otherwise have had to operate multiple assessment systems. The

Secretary has also determined that this regulatory action does not

unduly interfere with State, local, and tribal governments in the

exercise of their governmental functions.

Paperwork Reduction Act of 1980

Section 200.90 contains information collection requirements. As

required by the Paperwork Reduction Act of 1980, the Department of

Education will submit a copy of these sections to the Office of

Management and Budget for its review. (44 U.S.C. 3504(h))

These proposed regulations would affect SEAs and LEAs that have

developed assessment systems that support their educational reform

efforts but that are inconsistent with the national evaluation

standards in Subpart H of Part 200 or Subpart E of Part 201. The

Department needs the information to grant exceptions to the national

evaluation standards.

A one-time public reporting and recordkeeping burden for this

collection of information is estimated to average two hours per

response for a maximum of 52 respondents, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Organizations and individuals desiring to submit comments on the

information collection requirements should direct them to the Office of

Information and Regulatory Affairs, OMB, Room 10235, New Executive

Office Building, Washington, D.C. 20503; Attention: Daniel J. Chenok.

List of Subjects

34 CFR Part 200

Administrative practice and procedure, Education of disadvantaged,

Elementary and secondary education, Grant programs--education, Juvenile

delinquency, Neglected, Private schools, Reporting and recordkeeping

requirements, State-administered programs.

34 CFR Part 201

Children, Coordination, Education, Eligibility, Evaluation, Grant

programs--education, Identification and recruitment, Local educational

agencies, Migrant student record transfer system, Migratory children,

Migratory workers, Needs assessment, Priorities, Reporting and

recordkeeping requirements, Special educational needs, State

educational agencies, Subgrants.

Dated: August 3, 1994.

Richard W. Riley,

Secretary of Education.

(Catalog of Federal Domestic Assistance Numbers: 84.010, Chapter 1

Program in Local Educational Agencies; 84.011, Migrant Education

Basic State Formula Grant Program; 84.012, Chapter 1 Programs--State

Administration)

The Secretary amends Parts 200 and 201 of Title 34 of the Code of

Federal Regulations as follows:

PART 200--CHAPTER 1 PROGRAM IN LOCAL EDUCATIONAL AGENCIES

1. The authority citation for Part 200 is revised to read as

follows:

Authority: 20 U.S.C. 2701-2731, 2821-2838, 2851-2854, 2881-2901,

unless otherwise noted.

2. Section 200.80 is amended by revising paragraph (a) introductory

text to read as follows:

Sec. 200.80 How does an LEA evaluate student achievement?

(a) An LEA shall evaluate student achievement under

Sec. 200.35(a)(1)(i)(B) as follows:

* * * * *

3. An undesignated heading entitled ``Exception'' and a new

Sec. 200.90 are added to Subpart H to read as follows:

Exception

Sec. 200.90 May an SEA request an exception to the requirements in

this subpart?

(a) An SEA may request, in writing, an exception to the

requirements in other sections of this subpart if the SEA desires to

use a State assessment system developed to support its education reform

efforts for the purpose of evaluating the effectiveness of its Chapter

1 programs.

(b) The Secretary may grant an SEA's request if the State

assessment system meets the following national standards:

(1) The State system provides information that can be aggregated

for each LEA as a whole about the yearly performance of each Chapter 1

school. This information must be from at least one grade level in each

Chapter 1 school and must be based on student achievement in basic and

more advanced skills and challenging subject matter.

(2) The State system yields consistent results that accurately

reflect what the assessment system was designed to measure.

(3) The State system does not impair an SEA's or LEA's ability to

account for results under Chapter 1.

(c) An SEA may request an exception for an LEA that has a local

assessment system that meets the national standards in paragraphs (a)

and (b) of this section.

(Authority: 20 U.S.C. 2729(a), 2835)

PART 201--CHAPTER 1--MIGRANT EDUCATION PROGRAM

4. The authority citation for Part 201 continues to read as

follows:

Authority: 20 U.S.C. 2781-2782, unless otherwise noted.

5. Section 201.57 is added to Subpart E to read as follows:

Sec. 201.57 Exception to evaluation requirements.

(a) An SEA may request, in writing, an exception to the

requirements in Secs. 201.51(a)(1)(ii), 201.52(b)(1), 201.53, and

201.55 of this subpart if the SEA desires to use a State assessment

system, developed to support its education reform efforts, for the

purpose of evaluating the effectiveness of its Chapter 1 Migrant

Education Program.

(b) The Secretary may grant an SEA's request if the State

assessment system meets the following national standards:

(1) The State system provides a statewide estimate of the yearly

performance of migratory children in the State. This information must

be from at least one grade level and must be based on student

achievement in basic and more advanced skills and challenging subject

matter.

(2) The State system yields consistent results that accurately

reflect what the assessment system was designed to measure.

(3) The State system does not impair an SEA's or operating agency's

ability to account for results under the MEP.

(c) An SEA may request an exception for an operating agency that

has an assessment system that meets the national standards in

paragraphs (a) and (b) of this section.

(Authority: 20 U.S.C. 2722, 2729, 2782, 2835)

Appendix to This Final Rule--Analysis of Comments and Changes

(Note: This appendix will not be codified in the Code of Federal

Regulations)

The Department received comments on these regulations from 17

commenters, 13 of whom supported the regulations.

Comment: One commenter suggested that the Department used the word

``exception'' in the proposed regulations because the Department cannot

grant waivers. The commenter argued that there is no meaningful

distinction between ``exception'' and ``waiver'' and, therefore, the

Secretary lacks the authority to grant ``exceptions'' to requirements

that evaluations of Chapter 1 and MEP programs be based on the current

national standards.

Discussion: It is, of course, true that the Secretary cannot waive

statutory or regulatory requirements absent specific authority. As a

result, the Secretary is engaging in formal rulemaking to make

exceptions to the generally applicable standards by adopting less

prescriptive standards that would apply in the case of States that

request authority to use testing tied to State systemic reform efforts

in lieu of separate Chapter 1 evaluations. It is important to recognize

that the Secretary would not be granting exceptions to any statutory

requirements. Rather, he would be granting exceptions to particular

regulatory provisions that were initially promulgated and have now been

revisited through the appropriate rulemaking process. By authorizing

the Secretary to grant ``exceptions,'' the regulations clarify that the

generally applicable national evaluation standards are still the

primary provisions governing Chapter 1 and MEP evaluations. The

Secretary recognizes, however, that some States, as part of their

systemic State education reform efforts, have developed new assessment

systems that may be inconsistent with these standards because, for

example, they are not based on national norms or do not test children

in every grade. These regulations contain less prescriptive national

standards that permit these States to use their own assessment systems

to evaluate the effectiveness of their Chapter 1 and MEP programs,

rather than requiring these States to administer separate tests purely

for Chapter 1 and MEP purposes.

Changes: None.

Comment: One commenter asserted that the regulations do not comply

with the Chapter 1 statute. According to the commenter, the Secretary

is ``waiving all Chapter 1 testing requirements * * * without adopting

any substitute that can equally ensure compliance with the statute.''

In particular, the commenter contended that the regulations would

eliminate the requirement to use ``objective measurements'' of

``individual student achievement,'' thereby shifting the focus away

from individual students. The commenter also argued that the proposed

regulations would undermine the statutory requirement that improved

student performance be sustained for more than one year.

Discussion: These regulations neither waive nor are inconsistent

with any statutory requirements. For example, the basic evaluation

requirement in section 1019(a) of Chapter 1 requires an LEA to evaluate

the effectiveness of programs assisted under Chapter 1. The LEA must

use ``objective measurement of individual student achievement in basic

skills and more advanced skills, aggregated for the LEA as a whole'' as

an indicator of the impact of the program. Under the type of State

assessment system to which the exception would apply, all of these

requirements would have to be met. The assessments would have to--use

objective measures; measure basic and more advanced skills; assess the

achievement of individual children; and be capable of being aggregated

for each LEA as a whole. Nothing in section 1019(a), however, requires

these assessment systems to assess each child served in Chapter 1 or to

be based on national norms; rather, the Secretary imposed these

requirements through the current national standards. Moreover, contrary

to the commenter's interpretation, the requirement in section

1019(a)(3) regarding ``sustained gains'' relates to improved

performance of the program over a period of more than one year, not to

individual student performance.

As the preamble indicates, under these final regulations SEAs and

LEAs must continue to meet all statutory assessment requirements. In

particular, SEAs and LEAs must still evaluate the effectiveness of

their Chapter 1 programs under section 1019, perform the annual review

required under section 1021(a), measure sustained program gains under

sections 1019(a)(3) and 1021(a)(2), identify schools and students in

need of program improvement under section 1021 (b) and (f), and meet

schoolwide project accountability requirements under section 1015(e).

Similarly, under the MEP, SEAs must ensure that they and their

operating agencies adhere to the requirements of sections 1012(b),

1019(b), and 1202(a)(6) to use desired outcomes for evaluating

performance, to collect and report demographic and performance data,

and to examine sustained gains for formerly migratory children. If the

Secretary grants an exception under these final regulations, these

requirements may be met using the State assessment and any other

sources of information deemed appropriate. Thus, if a State assessment

system does not provide sufficient information to meet one or more of

these requirements, the SEA, LEA, or operating agency would have to

supplement that system with other appropriate information.

Changes: None.

Comment: One commenter asserted that the proposed regulations did

not satisfy the Administrative Procedure Act. The commenter

specifically argued that the proposed regulations should contain the

criteria on which exceptions would be based so that commenters could

adequately respond.

Discussion: In accordance with the Administrative Procedure Act,

the proposed regulations contained adequate notice of the standards

that States would have to meet to be excepted from the generally

applicable national evaluation standards. Those standards were--the

assessment system has been developed to support a State's education

reform efforts; the system provides information about the yearly

performance of each Chapter 1 school; and the information provided is

from at least one grade level, measures student achievement in basic

and more advanced skills and challenging subject matter, and can be

aggregated for the LEA as a whole.

However, in response to several comments, the Secretary has added

two additional standards and one clarification. The assessment system

must yield consistent results that accurately reflect what the

assessment system was designed to measure. The use of the assessment

system may not impair an SEA's or LEA's ability to account for results

under Chapter 1. The information from the assessment system must be

from at least one grade level in each Chapter 1 school. Similar

standards apply to the MEP, except that the system must provide a

statewide estimate of the yearly performance of migratory children in

the State, rather than information on individual schools.

Changes: Two additional standards have been added to

Secs. 200.90(b) and 201.57(b). The State assessment system must yield

consistent results that accurately reflect what the assessment system

was designed to measure, and use of the system may not impair an SEA's

or LEA's ability to account for results under Chapter 1 or the MEP. In

addition, Sec. 200.90(b)(1) has been revised to make clear that the

assessment system must provide information from at least one grade

level in each Chapter 1 school.

Comment: One commenter contended that the Secretary's explanation

for why these regulations are needed was inadequate. In the commenter's

view, the Secretary offered only ``an assortment of unsubstantiated

policy-oriented statements in lieu of hard, objective facts.'' The

commenter concluded that the Secretary is trying to change the national

evaluation standards by ``administrative fiat,'' without any

explanation of the reasons and supporting evidence for the changes.

Discussion: The Secretary has articulated quite clearly in the

preamble to both the proposed and final regulations why he is taking

this action. The national evaluation standards were adopted in 1989 and

represented the best thinking at that time about how to implement the

statutory evaluation requirements. They were predicated largely on the

perceived need to use a measure that would provide data that could be

aggregated for the Nation--i.e., nationally normed tests or tests

equated with national norms--even though the statute itself does not

require aggregation to either the State or national level.

Since then, two developments of national significance have required

a change in those national standards. First, a number of States have

developed new assessment systems, linked to their statewide education

reform efforts, to improve the quality of education in their States.

These assessment systems are tied to high State standards for what

children should know and be able to do, but in some instances are

inconsistent with the national evaluation standards because they do not

routinely rely on nationally normed tests and typically only assess

children in certain grades. As a result, these States must operate

separate assessment systems: ones that they use to make informed

decisions about the effectiveness of education programs in their State;

and ones that they use only for Chapter 1 or MEP purposes.

As a related matter, major educational reform legislation, the

Goals 2000: Educate America Act (Pub. L. 103-227), became law on March

31, 1994. Section 306(c) of Goals 2000 requires reform plans developed

under the statute to include a description of the process a State will

use to develop State assessments aligned with the State's content

standards and that the assessments be for all students, including

students with diverse learning needs. These regulations will allow

States that have assessment systems tied to statewide education reform,

developed under Goals 2000 or another effort, to obtain exceptions from

existing Chapter 1 and MEP evaluation requirements and, subject to less

prescriptive standards in these regulations, use their statewide

assessments for Chapter 1 and MEP purposes. By allowing those States

that already have developed assessment systems tied to statewide

education reform efforts to obtain exceptions from existing Chapter 1

and MEP evaluation requirements, these regulations permit those States

to focus their energies on the new assessments without having to

implement a separate assessment system for Chapter 1 and MEP that may

not support reform efforts. The Secretary believes that requiring these

States to operate separate assessment systems for Chapter 1 and MEP

purposes serves neither the interests of participating children nor the

Federal programs involved.

Changes: None.

Comment: One commenter contended that these regulations are

fundamentally flawed because the ``need'' for the exception is wholly

without merit. Defending nationally normed tests, the commenter

disputed that new State assessment systems would provide more

meaningful data and asserted that new and traditional assessment

systems are not mutually exclusive.

Discussion: The commenter may have missed the point of these

regulations. The regulations do not require any State to make changes

in its Chapter 1 or MEP testing programs. Even a State that has

developed an assessment system to support its education reform efforts

will not be required to use that system to evaluate its Chapter 1 or

MEP programs. At the same time, however, the Secretary does not want

the current national evaluation standards to stand in the way of a

State's efforts, in reforming its educational system, to define what

all students should be expected to know, train instructional staff to

teach those subjects, and assess whether students, in fact, have

learned what they should know. In particular, the Secretary believes

that States that are pursuing this kind of reform, and that have

already developed their own measures for assessing what all children

should know, should be free to use those assessments to evaluate their

States' Chapter 1 and MEP programs if they are satisfied that these

measures provide more meaningful information on the progress of

participating children than does use of the current national standards.

The current national evaluation standards preclude a State from making

this choice. To the extent that a State's assessment system does not

rely on a nationally normed test or fails to assess every participating

child in grades 2 through 12, it is inconsistent with, and therefore

cannot be used to satisfy, the current national evaluation standards.

Changes: None.

Comment: One commenter interpreted the Secretary's desire to

eliminate dual testing as a determination that multiple measures are

inconsistent with the current Chapter 1 evaluation requirements. The

commenter asserted that a rationale for the proposed exception premised

on a single assessment theory is inconsistent with current law.

Discussion: The commenter may have misinterpreted the Secretary's

rationale for proposing an exception to the national evaluation

standards. The Secretary is not requiring use of a sole assessment

criterion. Rather, like the commenter, the Secretary encourages

multiple assessment measures and anticipates that most, if not all,

State assessment systems qualifying for an exception would consist of

multiple measures. On the other hand, the Secretary is trying to

eliminate the need for a State to administer dual tests, i.e.,

administering a particular type of test merely to satisfy the Chapter 1

national evaluation standards while administering an acceptable

alternative assessment system for the State's own purposes.

Changes: None.

Comment: One commenter suggested that, instead of granting

exceptions, the Secretary revise the regulations to require the use of

multiple measures, including norm-referenced tests. According to the

commenter, although it is appropriate to use additional assessments

that could provide critical evidence of whether children are performing

at an appropriate level, norm-referenced tests should also be used

because they meet the technical standards of reliability and validity.

Discussion: As noted above, the Secretary encourages the use of

multiple assessment measures. The Secretary does not agree that norm-

referenced tests should be required as one measure.

Changes: None.

Comment: One commenter asked whether it would be possible for an

SEA or LEA to have a mixed system--for example, norm-referenced tests

to measure sustained effects; alternative measures for assessing math

and reading.

Discussion: The regulations permit States to use any assessment

measures or combination of measures that are appropriate and that meet

new, less prescriptive national standards.

Changes: None.

Comment: One commenter suggested that, if an exception is granted,

the eligibility standards for entry into Chapter 1 programs would be

relaxed to the point that subjective teacher recommendations would

determine participation.

Discussion: These regulations do not alter the criteria for

identifying and selecting children for participation in Chapter 1 or

MEP programs. Under Chapter 1, for example, children must still be

identified as educationally deprived ``on the basis of educationally

related objective criteria established by the [LEA] which include

written or oral testing instruments.'' This requirement, however, does

not mandate a specific type of assessment, particularly one that uses a

nationally normed test. An LEA may use whatever educationally related

objective criteria it deems appropriate. Thus, to the extent the State

assessment system meets the LEA's needs, it may also serve to identify

and select children for participation in Chapter 1. On the other hand,

to the extent the State assessment system does not provide sufficient

information on specific children, the LEA would need to use additional

measures to select children for participation in Chapter 1 programs.

Changes: None.

Comment: One commenter felt that accountability could be skewed if

test results are obtained only from a single grade level. Another

commenter feared that information from only one grade level would not

provide adequate evidence of school effectiveness.

Discussion: There is no statutory or regulatory requirement that a

State limit its assessment of its Chapter 1 or MEP programs to a single

grade level per school. Indeed, if a State believes that one grade does

not adequately represent the progress of children in Chapter 1 or MEP

or the effectiveness of a school, it should assess children in other

grades to achieve an adequate picture of their progress.

Changes: None.

Comment: Two commenters suggested that, if an exception is granted,

there would be no comparative data on student achievement as there now

are with pre- and post-norm-referenced test scores.

Discussion: It is true that comparative data on individual children

would not be required under an exception just as it is not required

under the statute. However, regardless of whether a State assessment

system includes comparative data, nothing would prevent an LEA from

augmenting the State assessment system to obtain comparative data if

the LEA believes the data would be useful.

Changes: None.

Comment: Several commenters suggested that the basic technical

standards contained in Sec. 200.81 of the Chapter 1 regulations be

maintained.

Discussion: The Chapter 1 statute does not mandate that specific

technical standards be prescribed. Moreover, exceptions granted under

these regulations would govern a limited period from the present until

the reauthorization of Chapter 1 takes effect. The Secretary does not

want to prescribe technical standards for this limited period that may

run counter to standards that may be required under reauthorization. In

addition, these regulations come at a time when the testing community,

in general, is grappling with new forms of assessments that better

measure what children should know and be able to do and redefining what

technical standards best meet the needs of those assessments. The

technical standards in Sec. 200.81 of the current regulations are often

construed as prohibiting assessments other than those that are

nationally normed or those that are modeled after these tests.

The Secretary is very concerned, however, that State assessment

systems being developed to support systemic education reform efforts

are of high quality and useful and that exceptions under these

regulations only would be granted where evaluation results under

Chapter 1 and the MEP provide meaningful indicators about the progress

under Chapter 1 and MEP. The Secretary, therefore, is requiring under

these regulations the following basic technical standards for the

assessment system: (1) that the system yields consistent results and

(2) that those results accurately reflect what the assessment system

was designed to measure. The Secretary has determined that to impose

any additional technical standards on new assessment measures for the

Chapter 1 and MEP programs is not necessary to ensure that the results

of evaluations of these programs are sufficiently meaningful and

useful. The Secretary is confident that the other requirements of these

regulations ensure that a State would not implement a new assessment

system and make educational judgments based on results from that system

until the State has determined that the assessment accurately measures

what children are expected to know and be able to do.

Changes: As noted above, Secs. 200.90(b) and 201.57(b) have been

revised to require that an assessment system for which an exception has

been requested must yield consistent results that accurately reflect

what the assessment system was designed to measure and may not impair

the SEA's or LEA's ability to account for results under Chapter 1 or

the MEP.

Comment: One commenter asked whether the feeder pattern concept

would be acceptable in LEAs with schools that do not contain a grade in

which the State administers an assessment. For example, if a State

assessment consists of a test in third grade, the commenter asked

whether it would be permissible for schools with only grades K-2 to be

considered part of a K-6 grade span. Another commenter suggested adding

clarifying language that information be available from at least one

grade ``in each Chapter 1 school.''

Discussion: The proposed regulations stated that a State assessment

system must provide information about the yearly performance of each

Chapter 1 school and that this information must be from at least one

grade level. It was the Secretary's assumption that, to meet this

requirement, a State's assessment system would have to provide

information from at least one grade level in each Chapter 1 school. To

clarify this assumption, however, the regulations have been revised

accordingly.

Changes: Section 200.90(b) has been revised to clarify that

assessment information must be collected from at least one grade level

in each Chapter 1 school.

Comment: One commenter asserted that ``achievement of basic and

more advanced skills all children are expected to master'' is clearer

than ``and challenging subject matter'' and suggested that the

regulations be revised to state that the assessment must provide an

assessment of the degree to which Chapter 1 students have mastered the

basic and more advanced skills all children are expected to master.

Discussion: The Secretary believes that in the context of these

regulatory amendments ``basic and more advanced skills all children are

expected to master'' implies that, for Chapter 1 purposes, lower

standards may be established for all children. The Secretary believes

it is essential that Chapter 1 participants as well as other children

be taught challenging subject matter and assessed to determine whether

that subject matter has been learned.

Changes: None.

Comment: One commenter asked whether an LEA could be granted an

exception to use a local assessment system or whether an exception

could only apply to a State assessment system. The commenter believed

the regulations to be unclear in this area.

Discussion: The Secretary intends that an SEA may request an

exception either for a State assessment system that supports statewide

systemic education reform efforts or for an individual LEA that has a

local assessment system that supports its local reform efforts.

Changes: Sections 200.90(c) and 201.57(c) have been revised to

clarify that an SEA may request an exception for an LEA that has an

assessment system that supports its local systemic education reform

efforts and meets the other standards in the regulations.

Comment: One commenter asked whether, if an exception is granted,

the alternative assessment measures may be used for determining

aggregate performance under the local annual review for program

improvement as well as for local evaluation.

Discussion: If an exception is granted, the alternative assessment

measures may be used for any purposes for which they are appropriate.

Changes: None.

Comment: One commenter suggested that the definition of desired

outcomes in Sec. 200.6 be changed or deleted, consistent with the

intent of the NPRM. The commenter objected to that portion of the

definition linking desired outcomes to aggregate performance and, thus,

to scores on norm-referenced tests. The commenter also contended that

this definition will frustrate the intent of these final regulations

because LEAs would still be required to set their desired outcomes in

terms of scores on norm-referenced tests.

Discussion: Changing the definition of ``desired outcomes'' in

Sec. 200.6 is outside the scope of this rulemaking. To make the changes

the commenter has suggested would require the Secretary to first

publish an additional NPRM. The Secretary does not believe, however,

that this definition will frustrate the intent of these final

regulations. If a State or LEA is granted an exception to the current

national evaluation standards, the alternative assessment may be used

for any appropriate purposes, including determining aggregate

performance. Thus, if nationally normed tests are not part of the

alternative assessment, scores on those tests would not be used to

determine aggregate performance or to define desired outcomes.

Changes: None.

Comment: One commenter recommended that the cross-reference

contained in Sec. 200.80(a) to Sec. 200.35(a)(1)(ii), which relates to

assessment of students' progress in the regular program, be corrected

to refer to Sec. 200.35(a)(1)(i)(B), which relates to assessment of

student achievement, aggregated for the LEA as a whole, in accordance

with the national standards in Subpart H.

Discussion: The Secretary agrees with the commenter.

Changes: Section 200.80(a) has been revised to correctly reference

Sec. 200.35(a)(1)(i)(B).

[FR Doc. 94-19433 Filed 8-9-94; 8:45 am]

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