Potential Consequences for Alternate Assessment Noncompliance

The U.S. Department of Education (DOE) has recently outlined parameters to enforce a key limit of one form of alternate testing for students with disabilities. The Individuals with Disabilities Education Improvement Act (IDEIA) and the Every Student Succeeds Act (ESSA) provide two options for alternate assessments for students with disabilities, based on:

• grade-level academic achievement standards (which measures a student’s achievement against typical grade-level standards) with necessary accommodations, or
• alternate academic achievement standards (for students with the most significant cognitive disabilities – the alternate standards option in Ohio is Ohio’s Alternate Assessment for Students with Significant Cognitive Disabilities (AASCD)).

The ESSA requires states to ensure that the total number of students who are assessed with the AASCD (in each subject) does not exceed 1% of the students in the state who took the state’s achievement tests. While this ESSA requirement took effect for the 2017-2018 school year, the DOE has recently released guidance (through a March 28, 2019 Dear Colleagues Letter) that specifies potential sanctions that may be enforced if a state exceeds the 1% threshold and did not receive a noncompliance waiver.

The Dear Colleagues Letter acknowledges that many states may need time to adjust their systems to reach the 1% compliance. Therefore, waivers were available for the 2017-2018 school year, and more than 20 states were granted waivers for exceeding the threshold (including Ohio, which received waivers for reading/language arts, mathematics, and science, with some Ohio school districts utilizing AASCD for more than 3.5% of students). For states that did not receive a waiver for the 2017-2018 school year, and exceeded the 1% threshold, the DOE will review each state’s context and information. It will then consider actions that range from a letter with a requirement that the state submit a plan to reach compliance to withholding a state’s Title I Part A administrative funds. This would be coupled with the district’s execution of a plan for compliance while participating in a mandatory joint OESE/OSEP monitoring class pending compliance.

The Dear Colleagues Letter makes clear that this framework will guide the DOE’s actions in future years. The letter also points out that the most severe consequences are not contemplated until after the 2019-2020 school year. Therefore, while these potential sanctions will not be imposed on Ohio for the 2017-2018 school year because it received a waiver, it is not clear how/if waivers will be granted in future years. It is imperative that districts work to reach compliance with the 1% administration rate.

Ohio currently requires school districts that exceed 1% AASCD administration to complete a Self-Review Summary Report, an Improvement Plan, and submit district documentation of SST training. As districts continue to navigate which students should utilize the AASCD, maintain compliance, or implement a district Improvement Plan, it is important to keep in mind:

- Students who do not have a significant cognitive disability are not eligible for the AASCD.

- Participation in the AASCD should not be determined based on student attendance, disability eligibility category, education setting, English language status, behavior, a general need for accommodations.
- AASCD eligible students often require extensive and substantial support and instruction.
- The AASCD is aligned to Ohio’s Learning Standards – Extended.

Lisa Woloszynek is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.