The federal process for approving state waiver requests to exceed a 1% cap on the number of students with significant cognitive disabilities who take alternate assessments is generally appropriate, according to an Office of Inspector General report released Wednesday.
The U.S. Department of Education's Office of Elementary and Secondary Education, however, has room for improvement. OIG recommends that OESE develop and implement written guidance and review procedures for staff involved in reviewing and approving waiver and waiver extension requests. Those efforts could bring "greater consistency and less subjectivity" to the process, OIG said.
OIG's recent inspection examined the waiver process for the 2021-22 school year and only focused on the waiver review process. It did not review OESE’s responses to states seeking waivers.
The Every Student Succeeds Act requires that all students participate in statewide testing. States can allow students with significant cognitive disabilities to participate in alternate assessments based on alternate academic achievement standards. The alternate academic achievement standards are reduced in complexity and depth compared to general achievement standards.
States must limit the number of students participating in alternate assessments to no more than 1% of the total number of students in the state who are assessed in each subject tested. Students' individualized education program teams, however, are the decision-makers when it comes to what tests students with disabilities will take.
By design, the cap aims to prevent the over-assignment of students with disabilities to the alternate assessment. Students who take alternate assessments may be limited in post-school activities.
ESSA regulations state that students who take the alternate assessment may not be prohibited from attempting to complete the requirements for a regular high school diploma. Parents must also be informed of how participation may delay or otherwise affect the student from completing the requirements for a regular high school diploma.
States that exceed the cap can have conditions placed on their Title I, Part A grant for educational programs for students from low-income families.
According to a Sept. 20 letter sent to states by OESE and the Office of Special Education Programs, the national alternate assessment participation rate has been decreasing since the 2016-17 school year. That year the reading and math participation rates were both 1.18%. By 2021-22, the alternate assessment participation rate declined to 1.07% for reading and dipped to 1.06% for math.
Plans for compliance
During the 2022-23 school year, the Education Department approved nine states for waivers or waiver extensions and denied 14 states' requests, according to a tally from The Advocacy Institute, a nonprofit that works to support people with disabilities. Reasons for waiver denials included failure to reduce participation rates in previous years and a state's inability to test at least 95% of all students and 95% of students with disabilities, as required.
Candace Cortiella, director and founder of The Advocacy Institute, said in an email she's disappointed that OIG's report had a narrow scope and relied on outdated information. The Advocacy Institute has been tracking waiver activity by state for seven years.
Cortiella would like to draw attention to OESE's practice of calling on states that do not have waivers and have exceeded the 1% cap to create plans to become compliant. The plans, Cortiella said, have no requirements attached to them unlike the formal waiver and waiver extension process, such as soliciting public comment and addressing disproportionality.
"I don't know where OESE finds the authority to do this instead of informing these states that they need to submit waiver requests," Cortiella said in an email.
On Oct. 27, OESE sent separate letters to 15 states affirming each state's over-the-cap participation rate during the 2021-22 school year, while noting certain states’ progress on reducing alternate assessment participation.
Some states barely pushed past the 1% cap, such as Vermont's 1.01% participation rate for reading/language arts alternate assessments.
"If the State continues to have an AA-AAAS [alternate assessment based on alternate academic achievement standards] participation rate over 1.0 percent in future years, the Department may take additional action," said OESE's letter to the Vermont Agency of Education.
Pennsylvania's letter shows the state exceeded the participation cap for reading/language arts (1.97%), math (2.06%) and science (2.19%). Because the participation rates for all three subject areas are "substantially higher" than 1%, the state's Title I, Part A grant was placed on "high-risk" status, the letter said.
OESE's letters added that the office recognizes the 1% participation cap was a new requirement starting in the 2017-18 school year, and that most states previously exceeded 1% of students tested using an alternate assessment.
The office also said that the COVID-19 pandemic impacted state efforts to reduce participation rates in the 2019-20 and 2020-21 school years. All states were allowed assessment waivers for the 2019-20 school year due to pandemic hardships.
To further support state assessment efforts, OESE hosted a conference session on the topic in September and has posted materials from that session, including federal guidance on the 1% cap and other resources.
