1. (a) In general. In establishing long-term goals and measurements of interim progress under § 200.13, measuring performance on each indicator under § 200.14, annually meaningfully differentiating schools under § 200.18, and identifying schools under § 200.19, each State must include the following categories of students consistent with the State's minimum number of students under § 200.17(a)(1):

   1. (1) All public school students.

   2. (2) Each of the following subgroups of students, separately:

      1. (i) Economically disadvantaged students.
      2. (ii) Students from each major racial and ethnic group.
      3. (iii) Children with disabilities, as defined in section 8101(4) of the Act.
      4. (iv) English learners, as defined in section 8101(20) of the Act.

2. (b) Children with disabilities. With respect to a student previously identified as a child with a disability who has exited special education services as determined by the student's individualized education program (IEP) team, a State may include such a student's performance within the children with disabilities subgroup under paragraph (a)(2)(iii) of this section for not more than two years after the student ceases to be identified as a child with a disability (i.e., the two school years following the year in which the student exits special education services) for purposes of calculating any indicator under § 200.14(b) that uses data from State assessments under section 1111(b)(2)(B)(v)(I) of the Act, provided that the State develops a uniform statewide procedure for doing so that includes all such students and includes them -

   1. (1) For the same State-determined period of time; and
   2. (2) For purposes of determining if a school meets the State's minimum number of students under § 200.17(a)(1) for the children with disabilities subgroup when calculating performance on any such indicator.

3. (c) English learners.

   1. (1) With respect to a student previously identified as an English learner who has achieved English language proficiency consistent with the standardized, statewide exit procedures in section 3113(b)(2) of the Act, a State may include such a student's performance within the English learner subgroup under paragraph (a)(2)(iv) of this section for not more than four years after the student ceases to be identified as an English learner (i.e., the four years following the year in which the student meets the statewide exit criteria, consistent with § 299.19(b)(4)) for purposes of calculating any indicator under § 200.14(b) that uses data from State assessments under section 1111(b)(2)(B)(v)(I) of the Act, if the State develops a uniform statewide procedure for doing so that includes all such students and includes them -

      1. (i) For the same State-determined period of time; and
      2. (ii) For purpose of determining if a school meets the State's minimum number of students under § 200.17(a)(1) for the English learner subgroup when calculating performance on any such indicator.
   2. (2) With respect to an English learner with a disability that precludes assessment of the student in one or more domains of the English language proficiency assessment required under section 1111(b)(2)(G) of the Act such that there are no appropriate accommodations for the affected domain(s) (e.g., a non-verbal English learner who because of an identified disability cannot take the speaking portion of the assessment), as determined, on an individualized basis, by the student's IEP team, 504 team, or individual or team designated by the LEA to make these decisions under Title II of the Americans with Disabilities Act, a State must, in measuring performance against the Progress in Achieving English Language Proficiency indicator, include such a student's performance on the English language proficiency assessment based on the remaining domains in which it is possible to assess the student.

   3. (3) With respect to a recently arrived English learner as defined in section 1111(b)(3)(A) of the Act, a State must include such an English learner's results on the assessments under section 1111(b)(2)(B)(v)(I) of the Act upon enrollment in a school in one of the 50 States or the District of Columbia (hereafter “a school in the United States”) in calculating long-term goals and measurements of interim progress under § 200.13(a), annually meaningfully differentiating schools under § 200.18, and identifying schools under § 200.19, except that the State may either -

      1. (i)

         1. (A) Exempt such an English learner from the first administration of the reading/language arts assessment;
         2. (B) Exclude such an English learner's results on the assessments under section 1111(b)(2)(B)(v)(I) and 1111(b)(2)(G) of the Act in calculating the Academic Achievement and Progress in Achieving English Language Proficiency indicators in the first year of such an English learner's enrollment in a school in the United States; and
         3. (C) Include such an English learner's results on the assessments under section 1111(b)(2)(B)(v)(I) and 1111(b)(2)(G) of the Act in calculating the Academic Achievement and Progress in Achieving English Language Proficiency indicators in the second year of such an English learner's enrollment in a school in the United States and every year of enrollment thereafter; or

      2. (ii)

         1. (A) Assess, and report the performance of, such an English learner on the assessments under section 1111(b)(2)(B)(v)(I) of the Act in each year of such an English learner's enrollment in a school in the United States;
         2. (B) Exclude such an English learner's results on the assessments under section 1111(b)(2)(B)(v)(I) of the Act in calculating the Academic Achievement indicator in the first year of such an English learner's enrollment in a school in the United States;
         3. (C) Include a measure of such an English learner's growth on the assessments under section 1111(b)(2)(B)(v)(I) of the Act in calculating either the Academic Progress indicator or the Academic Achievement indicator in the second year of such an English learner's enrollment in a school in the United States; and
         4. (D) Include a measure of such an English learner's proficiency on the assessments under section 1111(b)(2)(B)(v)(I) of the Act in calculating the Academic Achievement indicator in the third year of such an English learner's enrollment in a school in the United States and every year of enrollment thereafter.

   4. (4) A State may choose one of the exceptions described in paragraphs (c)(3)(i) or (ii) of this section for recently arrived English learners and must -

      1. (i)

         1. (A) Apply the same exception to all recently arrived English learners in the State; or
         2. (B) Develop and consistently implement a uniform statewide procedure for all recently arrived English learners that considers students' English language proficiency level at the time of the their identification as English learners and that may, at a State's discretion, consider one or more of the student characteristics under § 200.13(c)(2)(i)(B) through (E) in order to determine whether such an exception applies to an English learner; and
      2. (ii) Report on State and LEA report cards under section 1111(h) of the Act the number and percentage of recently arrived English learners who are exempted from taking such assessments or whose results on such assessments are excluded from any indicator under § 200.14 on the basis of each exception described in paragraphs (c)(3)(i) and (ii) of this section.

4. (d) Limitations. A State may not include former children with disabilities or former English learners within the applicable subgroups under paragraph (a)(2) of this section for -

   1. (1) Any purpose in the accountability system, except as described in paragraphs (b) and (c)(1) of this section with respect to an indicator that uses data from State assessments under section 1111(b)(2)(B)(v)(I) of the Act and as described in § 200.34(e) with respect to calculating the four-year adjusted cohort graduation rate; or
   2. (2) Purposes of reporting information on State and LEA report cards under section 1111(h) of the Act, except for providing information on the performance of the school, including a school's level of performance under § 200.18(b)(3), on any indicator that uses data from State assessments under section 1111(b)(2)(B)(v)(I) of the Act and for calculating the four-year adjusted cohort graduation rate consistent with § 200.34(e).

5. (e) State plan. Each State must describe in its State plan under section 1111 of the Act how it has met the requirements of this section, including by describing any subgroups of students used in the accountability system in addition to those in paragraph (a)(2) of this section, its uniform procedure for including former children with disabilities under paragraph (b) of this section and former English learners under paragraph (c)(1) of this section, and its uniform procedure for including recently arrived English learners under paragraph (c)(4) of this section, if applicable.

   (Authority: 20 U.S.C. 6311(b)-(c), (h); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3; 20 U.S.C. 3474)

[81 FR 86224, Nov. 29, 2016]