Only a small percentage of students are supposed to take alternate assessments intended for those with the most significant cognitive disabilities, but new evidence suggests that states are routinely exceeding the limit despite major ramifications for kids.

Under the federal Elementary and Secondary Education Act, no more than 1% of all students — or about 10% of those with disabilities — who are assessed in a state each year are allowed to take what’s known as an alternate assessment aligned with alternate academic achievement standards, or AA-AAS. The modified tests are less rigorous than the general, grade-level reading and math exams mandated for most children.

While the cap has been in place since the 2017-2018 school year, 33 states remain out of compliance, according to a report out this month prepared by The Advocacy Institute, The National Down Syndrome Congress, National PLACE, the Center for Learner Equity and the Council of Parent Attorneys and Advocates on behalf of the Consortium for Constituents with Disabilities.

Some of the states violating the rule requested a waiver from the U.S. Department of Education to exceed the limit, while others went over the cap without a waiver, the report found.

As a result, the advocacy groups note that hundreds of thousands of students with disabilities are inappropriately being given less rigorous assessments. In California alone, coming into compliance with the rule would mean decreasing participation in alternate assessments by 10,000 students, the groups said.

“We know that when students are educated through different pathways, it results in very different ends,” said Denise Marshall, CEO of the Council of Parent Attorneys and Advocates, or COPAA, a nonprofit that advocates for the rights of students with disabilities and their families. “If students are inappropriately given the alternate assessment they likely will not graduate with a regular high school diploma or access to postsecondary programs, both of which lead to fewer employment options.”

Marshall said that the report was prepared as the advocacy groups plan a meeting with the Education Department to relay concerns about widespread noncompliance with the 1% cap.

The report details lax enforcement from the Education Department noting that the agency has routinely failed to hold states requesting waivers to the standards required by law. Further, it says the department has imposed no consequences when states have been denied waivers and has taken limited action when states have exceeded the cap without a waiver.

“This approach to monitoring the 1 percent cap provision of ESSA appears to be having limited effectiveness,” the report indicates.

Eight states have consistently received letters from the Education Department after exceeding the cap without a waiver, the findings show. Nonetheless, the number of students taking alternate assessments declined little or even increased in some of these states.

Advocates are calling on the Education Department to ratchet up consequences for states that are denied waivers and those that exceed the cap without a waiver, among other changes.

“The 1% safeguard is in place to ensure that any such identification of students to be educated based on different expected outcomes does not lead to stigmatization, self-fulfilling prophecies of learned helplessness and lowering of academic expectations,” Marshall said. “For some students, alternate academic achievement standards are appropriate, however, with 33 states exceeding the cap, we know that far too many students are being assigned to the AA-AAS when they should be taking the general assessment, aligned to the regular state math and (English language arts) standards.”

The Education Department said there has been improvement with the percentage of students taking alternate assessments dropping from about 1.25% during the 2016-2017 school year to 1.11% in 2021-2022. The agency indicated that it has convened seminars, written letters to states that are out of compliance and taken other steps to ensure that students are taking the right assessments. More technical assistance is planned this year directed at states with high rates of alternate assessment participation, officials said.

“The department is committed to ensuring high expectations for all children with disabilities,” a spokesperson for the Education Department told Disability Scoop. “The department has seen significant progress across the country in reducing the percentage of students taking an alternate assessment, and we are actively working with all states to promote compliance with the requirement to assess fewer than 1% of students with the alternate assessment.”