Student taking a testOn February 10, , the New York State Board of Regents released a memorandum detailing its decision to submit an Elementary and Secondary Education Act (ESEA) waiver renewal request. The waiver request contains a number of proposed amendments that, if approved, would have a significant effect on current state testing procedures for students with severe disabilities.

Most significantly, Proposed Amendment No. 1 would allow the state to use “out-of-level” testing to assess certain students with disabilities at their instructional grade levels, rather than their chronological grade level. The Board justified its decision to propose the amendment by stating that current testing procedures place students with disabilities at a disadvantage because assessments at their chronological age level do not reflect the content actually learned at their instructional grade level. As a result, the Board asserted that the current assessments do not provide “instructionally actionable information on student performance” or “accountability, instructional or growth information for purposes of teacher and leader evaluations.”

The proposed waiver is only meant to be temporary until the state can establish and implement its own adaptive assessments. Still, many of the public commenters condemned the proposed testing method, arguing that it would have a lasting, negative effect on students. Specifically, various advocates for students with disabilities argued that out-of-level testing lowers academic standards, inhibits the development of skills necessary for college and future careers, and leaves students permanently behind on the course to a high school diploma.

All amendments are subject to approval by the U.S. Department of Education, and, if upheld, will take effect in the -15 school year.


Ryan Everhart is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .

Jeffrey Same is an associate in the Labor & Employment Law Practice at Hodgson Russ LLP. You can reach him at .