July 6

Testing and State Accountability for Students with Disabilities

The Issue
The Every Student Succeeds Act (ESSA), signed into law in 2015, states that no more than 1 percent of students in each state can be given an “alternate assessment,” which is an alternative version of the state’s applicable standardized test. This limitation is known as the “1 percent cap,” and generally applies to about 10 percent of students in special education.

Notably, the 1 percent cap applies statewide, and the statutory language in ESSA does not have anything to say about how many students in any given district may take an alternate assessment. This means that different districts in a state are likely to administer alternate assessments at different rates, even while the state itselfmust be compliance with the overall 1 percent cap.

At least 23 states have asked the United States Department of Education (US ED) to grant them a “waiver,” or flexibility from the legal requirements of the 1 percent cap. Some states have made public their intentions to pursue a waiver for the 1 percent cap; there has been great inconsistency among states regarding the public availability of their actual waiver requests.

Historical Precedent
The existence of the 1 percent cap is in some ways old news. Prior to ESSA, states could allow an unlimited number of students to take alternate assessments, but could only count scores from up to 1 percent of all students for the purposes of reporting on proficiency. While a majority of states — around 36 — were already exceeding the 1 percent cap in the school year before ESSA’s passage, about half of these states were fairly close to the cap, using alternative assessments with between 1.31 to 2.2 percent of students.

Types of Alternate Assessments
Generally speaking, there are three kinds of alternate assessments:

  • Alternate Assessments Based on Grade-Level Achievement Standards (AA-GLAS)

  • Alternate Assessments Based on Modified Achievement Standards (AA-MAS)

  • Alternate Assessments Based on Alternate Achievement Standards (AA-AAS)

The alternate assessments differ in part based on whether the content the students are being taught and the standards they are expected to meet are aligned with or different from their grade-level peers.

AA-AAS is the most common type of alternate assessment and is generally used to assess students with “significant cognitive disabilities.” AA-MAS is becoming less common in states, as it has become difficult for states to meet federal testing requirements using this kind of assessments. AA-GLAS is currently available in only a few states, but it does enable students to demonstrate they are meeting grade-level expectations.

ESSA allows states to use an alternate assessment aligned with AA‐AAAS for students with the most significant cognitive disabilities, subject to a 1 percent cap on the number of students who can participate in the AA‐AAAS.

It is important to note that testing accommodations are a separate issue from alternate assessments. Testing accommodations do not change the substance of the test; they change how a test is administered.


The Process
At least 23 states haveaskedUS ED for a “waiver” from the 1 percent cap. US ED has granted these waivers to 19 states, has granted partial waivers to three states and has denied two states.

A memo from to state authorities in March 2017 stated that, among other requirements, states that anticipated not being in compliance with the 1 percent cap on AA-AAAS participation should submit a waiver request to US ED at least 90 days prior to the beginning of the testing window for the AA-AAAS and should include evidence that they gave notice of their waiver request to the public and provided the public and local education agencies (LEAs) with a reasonable opportunity to comment and provide input on the request.US ED

States have responded inconsistently to these requirements.

While some states made it publicly known that they intended to pursue a waiver, most states have not made their waiver requests available for public comment. Additionally, given the large number of requests for waivers, it appears a great number of the states that were in excess of the 1 percent cap before ESSA’s passage have been unsuccessful in addressing the issue since. Additionally, Alabama has asked US ED for a waiver, but it appears their request was made outside of the required timeframe. It is unclear how US ED will respond.

While US ED has said its Office of Elementary and Secondary Education (OESE) and the office of special education and rehabilitative services (OSERS) will help states get under the 1 percent cap, the waiver rejection letters sent by US ED to date have not included information on how those states should proceed.


Learn More


Be a Part of the Process

  • Take Action
    • Contact and OSERS about US ED’s plans regarding state waiver requests and how they plan to help states comply with the 1 percent cap. Ask them to make state waiver requests publicly available.OESEin officials
    • Call the Capitol Switchboard at 202-224-2311 to speak with your members of Congress about US ED’s enforcement of ESSA’s statutory provisions pertaining to students with disabilities.

      • Talk with your members of Congress about US ED’s plan to dissolve the Office of Elementary and Secondary Education (OESE) into the Office of Innovation and Improvement (OII) and how this will impact support for ensuring states comply with the 1 percent cap.

  • Take Local Action