By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
Addressing the needs of students with severe learning disabilities comes with significant complexities and has a major impact on a district’s budget and personnel. It is imperative that school superintendents, business administrators and directors of special services work together and understand evolving legal obligations. In this article, we highlight new protocol requirements and heightened scrutiny for districts seeking to have more than 1% of students with disabilities tested using the state’s alternative assessment, known as Dynamic Learning Maps, or DLM. If your district is seeking to have more than 1% of your students with disabilities take the DLM, you need to understand the new approval process involved and additional steps that must be taken locally.
In accordance with the Elementary and Secondary Education Act (ESEA), as modified by the Every Students Succeeds Act (ESSA), up to one percent of students with disabilities in a state may be assessed utilizing the state’s alternate assessment developed to test such students with the most severe disabilities. In New Jersey, the alternate assessment is the Dynamic Learning Maps, or DLM. While federal law only permits up to one percent of students to take the DLM in the state, it also permits individual districts to receive a waiver from the state and exceed the one percent cap, as long as the aggregate statewide number of students participating in the assessment is one percent or less.
Over the course of the last several years, New Jersey’s utilization of the DLM has increased to the point where the participation numbers were as follows for 2023-2024:
Students Participating in the DLM
Year Assessment Area Percentage
2023-24 Math 1.59%
2023-24 Reading ELA 1.62%
2023-24 Science 1.51%
Thus, New Jersey is approximately a half a percentage point over the allowable statewide number in each of the three assessment areas permitted by Federal law.
Pursuant to an October 27, 2023, directive from the United States Department of Education (USED), New Jersey is required to demonstrate progress in reducing these numbers and working toward a one percent or lower participation rate in the alternate assessment for Reading/ELA, Math and Science. Failure to do so could result in a reduction in federal financial assistance to the State in the future. Prior to enactment of the ESSA, the ESEA did not limit the number of students that could participate in the DLM, but rather, limited the number of students who could be determined to have met the State standards (proficient) in each of the three assessment areas to one percent of students, even if participation rates exceeded one percent of students.
A contributing cause for New Jersey exceeding the allowable percentage in all three assessment areas is flexibility through lack of enforcement previously allowed by the USDE, especially during the pandemic, which effectively allowed states, including New Jersey, to increase their participation percentages beyond the one percent limit. That flexibility is no longer being provided by the USED. Instead, as noted earlier, the USED informed New Jersey and several other states, that they had to work toward reducing the number of students participating in the DLM in all three three assessment areas (math, ELA and science), and ultimately lower the percentage to 1% in all areas. In doing so, the USED stated:
The Elementary and Secondary Education Act of 1965 (ESEA) limits the percentage of students that a State may assess with an AA-AAAS to no more than 1.0 percent of all assessed students in reading/language arts, mathematics, and science. On February 4, 2020, the U.S. Department of Education (Department) placed a condition on NJDOE’s Title I, Part A grant award after New Jersey exceeded the 1.0 percent threshold for the 2018-2019 school year in reading/language arts, mathematics, and science, based on data submitted to the Department via the EDFacts reporting system. The Department recognizes that this was a new requirement starting in the 2017-2018 school year and that most States previously assessed more than 1.0 percent of students with the AAAAAS. We further understand that States needed time to adjust their systems to reduce AAAAAS participation rates and that the COVID-19 pandemic impacted many plans in States in the 2019-2020 and 2020-2021 school years. (Emphasis added)
New Jersey was provided time to address its participation rates but must demonstrate adequate progress toward doing so going forward. As. Noted by the USED:
In order to satisfy this condition, NJDOE must:
1. Submit, within 30 calendar days of the date of this letter, a revised plan for how the State will come into compliance with the requirement to assess no more than 1.0 percent of students with an AA-AAAS.
2. Participate in joint monitoring calls with the Office of Elementary and Secondary Education and the Office of Special Education Programs while the State works to meet the requirement. Our staff will be in touch with your team to organize these calls.
3. Demonstrate that the State assessed less than 1.0 percent of its students with an AAAAAS in reading/language arts, mathematics, and science.
If the State continues to report an AA-AAAS participation rate over 1.0 percent in future years, the Department may take additional action. This is particularly true if the State is unable to demonstrate that it is making significant progress reducing the percentage of students taking the AA-AAAS.
To address this directive, the New Jersey Department of Education recently issued guidance setting forth how its efforts to reduce participation rates in the DLM will be implemented. The guidance provides that:
The Every Student Succeeds Act (ESSA) allows for the use of alternate assessments based on alternate achievement standards for students with the most significant cognitive disabilities. In New Jersey, this alternate assessment is the Dynamic Learning Maps (DLM). The ESSA requires that no more than 1% of the total number of tested students participate in the DLM assessment. Local Education Agencies (LEAs) are not prohibited from assessing more than 1% of their tested students with the DLM; however, they are required to submit information justifying the need to exceed the 1% limit. Under the direction of the United States Department of Education (USED), New Jersey is required to conduct activities statewide and in selected LEAs with high DLM participation rates to ensure that only those students who meet DLM participation criteria participate in the assessment. These activities will assist IEP teams in making individualized decisions, based on multiple sources of student data, regarding student participation in statewide assessments. Please visit the DLM website and the NJ DLM Resource Library for more information and resources on the DLM assessment and participation criteria. The USED allows for LEAs with more than 1% of their tested students taking the DLM to do so with justification. Any LEA that anticipates exceeding the 1% cap for the DLM year-end assessment in the 2024-2025 academic year will be required to complete an online self-paced training, see registration information below, and submit the completed 1% Justification Form. (October 16, 2024 broadcast memo, Emphasis supplied)
Rather than prohibiting school districts from seeking permission to exceed the one percent participation rate, the NJDOE intends to provide guidance and training in making individualized education program (IEP) team decisions on when a student should take the DLM, and will require a justification from each district seeking to do so. In this regard, districts should be prepared to appropriately justify requests to exceed the one present participation rate in the DLM, including providing information setting forth the district and student circumstances justifying the request, in order to receive approval to do so. Districts will also be required to participate in technical assistance if they exceed the one percent participation cap to ensure that decisions to have a student take the DLM are made based on appropriate factors, and to ultimately lower the statewide participation rate.
One potential complicating factor with respect to this approach to working toward a one percent statewide participation rate is that more than one percent of students statewide may meet the criteria for taking the DLM. The DLM is intended for students with significant disabilities who cannot appropriately participate in the regular assessment. The one percent limit may not reflect actual numbers of students who meet the criteria to participate in this assessment. If that ultimately is the case, meeting the USED directive could result in students being denied access to the appropriate assessment, or in the State not reaching the one percent goal. This could ultimately require reassessment of New Jersey’s approach to complying with the USED directive and the potential for future denial of requests by districts to exceed the one percent cap to comply with the required statewide number even if they are making appropriate determinations. While that is not currently the case, districts will have to monitor this requirement and State guidance going forward, as circumstances could alter how some students must be assessed.
Going forward, districts should be proactive and ensure proper training for IEP teams in how to determine when participation in the DLM is appropriate for a student, especially if they need to seek a waiver of the one percent participation cap in a given school year. This will place districts in the best possible position as the State continues its efforts toward meeting the one percent cap in accordance with the federal distractive.