IEP Teams May Not Determine a Student Has Demonstrated an Appropriate Level of English Language Proficiency Using Alternative Criteria

03.05.2025

The right to an appropriate education in California requires differentiated instruction for an English language learner (EL). EL students may also present with disabilities that entitle them to a free appropriate public education (FAPE) through an Individualized Education Program (IEP) developed consistent with federal and state law. Careful attention is required to ensure that students who present as both an EL student and also as a child with a disability are provided with all supports and services necessary to address their unique educational needs.

Children whose primary language is not English are assessed for EL classification using the English Language Proficiency Assessments for California (ELPAC), the statewide assessment that is aligned with California state standards in the four domains of Listening, Speaking, Reading, and Writing. Students are first administered the Initial ELPAC which measures a student’s level of English proficiency and whether the student shall be classified as an EL student. It is administered only once, upon initial school enrollment in a kindergarten program or thereafter. Students with the most significant cognitive disabilities who cannot access the ELPAC with approved accessibility resources are eligible to take the Alternate ELPAC, as specified in their individualized education programs (IEPs).

Once classified, EL students are thereafter annually administered the Summative ELPAC or Summative Alternate ELPAC during a designated four-month period until the student is reclassified as English proficient. This ongoing testing measures the student’s progress with English language proficiency, helps to inform proper educational placements, and assists with determining whether the student should be reclassified. There is no provision for exemption from, or opting out of, this testing.

The Summative ELPAC and Summative Alternate ELPAC Assessment Testing Window for the 2024-2025 school year began in February, and will continue through May 31, 2025, bringing with it a timely opportunity to remind IEP teams of requirements for the development of educational programming that addresses the needs of English language learners who also present with disabilities. IEP teams convening this spring for EL students should remember:

English language limitations that go unidentified or unaddressed can pose liabilities under both federal and state law for local educational agencies (LEAs).
Federal law requires that a professional with training and expertise in second language acquisition, who understands how to differentiate between the student’s EL proficiency and how the student’s disability impacts language development, be part of the IEP team for EL students with disabilities.
While state ELPAC requirements no longer apply to TK students, the California Department of Education (CDE) has instructed that LEAs should still conduct the Home Language Survey during TK enrollment and populate the English language acquisition status in the California Longitudinal Student Achievement Data System (CALPADS) as “to be determined,” if appropriate.
While TK students are not required to be assessed via the ELPAC, CDE still recommends LEAs provide students with language support as needed.
CDE guidance reiterates that the IDEA and Section 504 of the Rehabilitation Act of 1973 require that LEAs provide EL students with disabilities the language assistance and disability-related services to which they are entitled under federal law. LEAs must also inform parents of EL students with IEPs how language instruction programs meet the objectives of their child’s IEP. Even if a parent declines disability-related services, students with disabilities remain entitled to all EL rights and services.
IEP teams may no longer modify the standards to meet Criterion 1 requirements for reclassification. EL students must achieve the State Board of Education’s (SBE) adopted overall performance level score on either the Summative ELPAC or the Summative Alternative ELPAC to meet the Criterion 1 requirement. This means that EL students are required to obtain an overall Performance Level 4 on the Summative ELPAC, or an overall Performance Level 3 on the Summative Alternative ELPAC. There are no other alternative pathways to satisfy Criterion 1 for reclassification.

Previously, LEAs had allowed for an “alternative pathway” to satisfy Criterion 1 requirements for reclassification. This most often consisted of IEP teams determining that students had demonstrated an appropriate level of English language proficiency commensurate with their abilities, even if they were unable to score an overall performance level 3 on the Summative Alternative ELPAC. The SBE’s adoption of the Alternative ELPAC in May 2023 eliminated an LEA’s ability to determine its own alternative criteria to satisfy Criterion 1. In line with a strict reading of California Education section 313, CDE has recently reiterated that this elimination should have become operative during the 2023-2024 school year.

Should you have any questions concerning the topic of this Alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.