1. (a) Every student receiving instruction in the essential knowledge and skills shall take the appropriate criterion-referenced tests, as required by the Texas Education Code (TEC), §39.023(a), (b), (c), (l) and §39.027(e).
2. (b) A student receiving special education services under the TEC, Chapter 29, Subchapter A, enrolled in Grades 3-8 and who is receiving instruction in the essential knowledge and skills, shall take the assessment of academic skills unless the student's admission, review, and dismissal (ARD) committee determines that it is an inappropriate measure of the student's academic progress as outlined in the student's individualized education program (IEP). If the student's ARD committee determines that the assessment of academic skills is an inappropriate measure of the student's academic progress in whole or part, the student shall take the alternative assessment of academic skills in whole or part. Each testing accommodation shall be documented in the student's IEP in accordance with 34 Code of Federal Regulations (CFR) §300.347(a)(5)(i) and (ii), relating to the content of the IEP and participation in statewide or districtwide assessments. Beginning with the 2004-2005 school year when alternative assessment of academic skills is available for Grades 9-10, this subsection also applies to students enrolled in these grades.
3. (c) A student receiving special education services under the TEC, Chapter 29, Subchapter A, enrolled in Grades 3-10, according to the grade implementation schedule in subsection (b) of this section, and who is not receiving any instruction in the essential knowledge and skills, shall be considered exempt in accordance with the TEC, §39.027. Each exemption shall be documented in the student's IEP in accordance with 34 CFR §300.347(a)(5)(i) and (ii), relating to the content of the IEP and participation in statewide or districtwide assessments. Each exempted student receiving special education services shall take an appropriate locally selected assessment, as determined by the student's ARD committee, in accordance with procedures developed by the Texas Education Agency (TEA). Student performance results on these alternate assessments must be reported to the TEA.
4. (d) In Grades 3-12, a limited English proficient (LEP) student, as defined by the TEC, Chapter 29, Subchapter B, shall participate in the assessments as required by this section and Subchapter AA of this chapter (relating to Commissioner's Rules Concerning the Participation of Limited English Proficient Students in State Assessments). In Grades 3-6, the language proficiency assessment committee (LPAC) shall determine whether a nonexempt LEP student whose primary language is Spanish will take the assessment of academic skills in English or in Spanish. The decision as to the language of the assessment shall be based on the assessment that will provide the most appropriate measure of the student's academic progress.

Source Note:The provisions of this §101.5 adopted to be effective November 15, 2001, 26 TexReg 9088.