ESSA Panel Tackles Rules for Testing Students Labeled with Signficant Cognitive Disabilities

COPAA Weekly
March 29, 2016

Protecting the Legal and Civil Rights of Students with Disabilities and their Families

On Tuesday, March 22nd, the negotiated rulemaking (neg reg) session on the Every Student Succeeds Act (ESSA) delved into the sensitive and controversial issue related to ESSA’s requirement to assess students with the most significant cognitive disabilities with an alternate assessment on alternate academic achievement standards.

There was a collegial-but-intense discussion around assessing students with significant cognitive disabilities—so intense, in fact, that the policy experts involved in developing these regulations are forming a subcommittee to tackle this one issue. ED explained that while the term ‘students with disabilities’ is defined in the Individuals with Disabilities Education Act (IDEA), the term ‘students with the most significant cognitive disabilities’ stems from ESEA regulations and is not defined in the ESSA statute. States currently determine their own criteria for school teams to determine if a student with a disability is in fact a student with the most significant cognitive disability.

The question was asked if federal regulation should define this term, causing much discussion, considerable stress and palatable tension in the room. It was raised that rather than a definition, perhaps criteria or federal guidelines could be provided given current practice and reliable research. As a result, a subcommittee was formally formed to discuss a) whether a definition/other is needed; and, b) if so, what the recommendation would be.

On the heels of this tense discussion, ED sought input as to what the federal criteria should be when states apply for a waiver of the new student participation cap ESSA places on student’s participating in the alternate assessment on alternate academic achievement standards. Districts have flexibility under ESSA to exceed the 1% cap of all students participating in the alternate assessment; however states are required to meet the overall cap. New monitoring and reporting will be required now for states to determine use of the alternate and states may apply to ED for a waiver on the 1% cap. Suggestions and recommendations were made and it was agreed further negotiation will be needed on this issue.

COPAA does not have a representative on the panel, however, we are in close contact with our civil rights and parent representative colleagues. We are interested in your thoughts and experiences on this issue! Please send an email to

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