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New York Sends Request for Out-of-Level Testing Flexibility to U.S. Ed. Dept.

The New York State Board of Regents plans to submit a No Child Left Behind waiver extension to the U.S. Department of Education, saying that it wants the ability to test certain students with severe disabilities on tests that do not match their grade level—but with protections that it says will prevent misuse of the flexibility.

Testing flexibility for students with disabililties was not a part of the states original waiver request, which was approved in May 2012. New York needs to be able to give so-called "out of level" tests now because tests given on grade level don't provide meaningful information to the school or teachers, state officials said. 

Attachment C of the background information provided to the board of regents outlines all the criteria that students must meet before the state is allowed to administer an out-of-level test. For example, the student must have "multiple valid measures reflecting formal assessment" that substantiates the student's current performance level. Students also couldn't be recommended for out-of-level testing if their testing problems are due to language differences, lack of appropriate instruction in reading and math, or excessive absences from school.

Students could be assessed only two years below their instructional level, and determinations would be made separately for math and English/language arts tests. 

Finally, the waiver is only supposed to be temporary, the state says, until New York is able to develop adaptive testing for students in this group. 

The state Board of Regents voted on the waiver Feb. 11. Some advocates for students with disabilities have argued that giving out-of-level tests amounts to a lowering of academic goals for children with learning differences. Deborah Delisle, the education department's assistant secretary for elementary and secondary education, also said in a January interview  that the department wants children with disabilities to have access to "high-quality standards," though she did not speak to New York's proposal specifically, because it had not been submitted. 

If approved, the changes would take place for the 2014-15 school year. The federal Education Department is aiming to get responses to waiver requests back to states in the next few months.

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