Section 30.05 - Performance Appeals(1) A performance appeal addresses a claim that a student's knowledge and skills in English language arts, mathematics, or science and technology/engineering meet or exceed a performance level equivalent to the score on the MCAS high school tests required for the Competency Determination, even though the student has not demonstrated attainment of that standard on the MCAS grade 10 test(s). The performance appeal provides an opportunity to establish that a student has attained the equivalent of a scaled score on the MCAS test, necessary for eligibility for the Competency Determination. For English language arts and mathematics, a student meeting this standard must also fulfill the requirements of an Educational Proficiency Plan in order to be eligible for a Competency Determination.(2)(a) A performance appeal on behalf of a student may be filed only by the superintendent of schools for the school district in which the student is enrolled, or by the superintendent's designee. For a student who is enrolled in a public education program that is not part of a school district including, but not limited to, a charter school, an approved special education day or residential school, an educational collaborative, or a state-operated school or institutional program, the administrator of the school or program who is equivalent to the superintendent of schools shall file the performance appeal. If the superintendent declines to file a performance appeal on behalf of a student, the student's parent or guardian may appeal the superintendent's decision to the school committee.(b) If the school committee denies the request or takes no action on it within 30 days from the date it was submitted, and the student's parent or guardian alleges that the superintendent acted for reasons unrelated to the student's eligibility or academic achievement in not filing the performance appeal, the parent or guardian may ask the Commissioner to review the matter. If the Commissioner determines that the superintendent in fact acted for such unrelated reasons in not filing the appeal, he or she shall direct the superintendent to submit promptly the material required by 603 CMR 30.05(3) through (5), and he or she shall then proceed as set forth in 603 CMR 30.05(4), if applicable, and 603 CMR 30.05(6).(c) The superintendent shall file a performance appeal on behalf of a student with a disability upon the request of the student's parent or guardian or the student who has reached 18 years of age, provided that the student meets the eligibility requirements listed in 603 CMR 30.05(3). For any performance appeal filed on behalf of a student with a disability, the superintendent must obtain consent from the parent or guardian or the student who has reached 18 years of age.(3) The superintendent shall include in the performance appeal evidence that the student meets the eligibility requirements for a performance appeal, by submitting documentation as follows: (a)1. For a mathematics or English language arts performance appeal, evidence that the student has taken the grade 10 MCAS test or retest in the subject area of the appeal at least three times;2. For a performance appeal in science and technology/engineering, evidence that the student has taken a science and technology/engineering MCAS test and is currently enrolled in a science and technology/engineering class or has completed 12th grade.(b) evidence that the student has maintained at least a 95% attendance level (no more than nine days of absence from school in a 180-day school year) during the school year prior to and the year of the appeal, provided that the superintendent may present evidence of extenuating circumstances such as a student's disability, serious illness, or child care or other family responsibilities, that would justify an exemption from this requirement;(c) evidence that the student has satisfactorily participated in the tutoring and other academic support services made available by or approved by the school under an individual student success plan or under any other plan designed to strengthen the student's knowledge and skills in the subject(s) at issue, provided that the superintendent may present evidence of extenuating circumstances, such as a student's disability, serious illness, or child care or other family responsibilities, that would justify an exemption from 603 CMR 30.05(3)(c); (d) A student who has participated in the MCAS Alternate Assessment shall be eligible for a performance appeal if the student has participated in the MCAS-Alt in the subject area of the appeal at least twice for an appeal in English language arts or mathematics, and at least once in science and technology/engineering, in lieu of meeting the eligibility requirements listed in 603 CMR 30.05(3)(a).(4) Upon the written request of the superintendent, the Commissioner may for good cause waive one or more of the eligibility requirements listed in 603 CMR 30.05(3). The Commissioner shall report to the Board at least once each year on any such waivers that have been granted, provided that the identity of the student(s) shall remain confidential.(5) The superintendent shall include in the performance appeal evidence of the student's knowledge and skills in the subject area(s) for which the appeal is to be filed (English language arts, mathematics, or science and technology/engineering) by submitting:(a) the recommendation of one or more of the student's teachers in the area(s) of appeal, assessing the level of the student's knowledge and skills in the subject area(s) at issue;(b) a statement that the student has completed or is on track to complete local graduation requirements during grade 12 or after;(c) for a student with a disability, a statement that the IEP team, if any, supports the student's graduation, as documented on the IEP form;(d) for appeals in English language arts and mathematics, the grades or grade point average of the student for courses taken in the subject area(s) of the appeal in grade 9 (at the discretion of the superintendent), grades 10, 11, and, if available, grade 12 and the grades or grade point average and MCAS scores in the area of the appeal of other students in the school who took the same courses at the same time as the student who is the subject of the appeal.(e) for appeals in science and technology/engineering, the grade of the student for the course in the content area of the appeal and the grades and MCAS scores in the content area of the appeal of other students in the school who took the same course at the same time as the student who is the subject of the appeal.(f) Where there is no identifiable appropriate set of students to enable a meaningful comparison of the student's knowledge and skills in the subject area of the appeal as described in 603 CMR 30.05(5)(d) and (e), the superintendent shall submit a portfolio of the student's work in the subject area of the appeal sufficient to demonstrate the student's level of performance.(g) If the student has a disability, the superintendent shall include in the performance appeal any other information the student's IEP team or Section 504 team (if any) asks to be included, with the consent of the student's parent or guardian, that indicates in the judgment of the IEP team or Section 504 team that the student's knowledge and skills in the subject area of the appeal meet or exceed the performance level established by the Board for the competency determination in 603 CMR 30.03(2)(b), 30.03(3)(b), 30.03(4)(b), 30.03(5)(a), 30.03(5)(b), or 30.03(5)(c), as applicable (220), or the comparable score on MCAS grade 10 tests administered beginning in 2019 and that the student's MCAS scores do not accurately reflect the student's knowledge and skills for the content area of the appeal.(h) The superintendent may, and in the case of a student with disabilities the superintendent shall, also include in the performance appeal other supporting information relevant to the determination as to whether the student's knowledge and skills in the subject area of the appeal meet or exceed the performance level established by the Board for the passing standard for the competency determination for the student's graduating class in 603 CMR 30.03(2)(b), 30.03(3)(b), 30.03(4)(b) 30.03(5)(a), 30.03(5)(b) or (5)(c), as applicable. In order to be relevant to the determination, the supporting information shall provide evidence of the student's work that specifically and directly addresses the state academic performance standard in the subject area of the appeal. Supporting information includes a collection of the student's work samples sufficient to demonstrate the student's level of performance in relation to the learning standards established by the Board. The superintendent also may submit additional supporting information such as scores of the student on other standardized tests in the subject area, evidence of acceptance to college courses, or other evidence of academic achievement which demonstrates that the student's knowledge and skills meet or exceed the passing standard required for the performance appeal.(6) The superintendent shall send the performance appeal to the Commissioner, who shall review the submission to ensure that it meets the requirements of 603 CMR 30.05 and any guidelines issued by the Commissioner. If the submission meets the requirements, the Commissioner shall refer it to the Performance Appeals Board.(7) The Commissioner shall appoint members to one or more Performance Appeals Boards. Each board shall consist primarily of teachers and department heads with experience and expertise in the Massachusetts standards for English language arts, mathematics, or science and technology/engineering. Each member shall be appointed for a three-year term, provided that the initial terms may be staggered as the Commissioner deems appropriate. The Department shall coordinate and assist the work of each Performance Appeals Board. The Performance Appeals Board shall have the following duties:(a) to review each performance appeal submitted to it by the Commissioner, in accordance with these regulations and any guidelines issued by the Commissioner;(b) to review the information submitted by the superintendent under 603 CMR 30.05(5) and determine whether it provides sufficient evidence that the student has the required knowledge and skills; and(c) to make a recommendation to the Commissioner regarding whether or not the appeal should be granted.(8) The materials relating to a performance appeal that the Commissioner submits to the Performance Appeals Board shall identify the student only by number and shall not include information that would enable board members to identify the individual student. If the Performance Appeals Board decides that it needs additional information on a particular student in order to fulfill its duties, the Performance Appeals Board shall contact the Commissioner's Office to request the information, which shall be provided to the Performance Appeals Board with only the student number as an identifier.(9) Based upon the recommendation of the Performance Appeals Board and any other information that he or she deems relevant, the Commissioner shall decide whether to: (c) make no determination and request that the superintendent submit additional information for further consideration by the Performance Appeals Board. The Commissioner shall make a decision after the Performance Appeals Board reports back to him or her.(10) The Commissioner shall grant the appeal if the cohort analysis as described in 603 CMR 30.05(5)(d) or (e), or the portfolio as described in 603 CMR 30.05(5)(f), or the collection of work samples produced by the student and any additional supporting information submitted with the appeal as required in 603 CMR 30.05(5)(g) and (h), demonstrates by a preponderance of the evidence that the student's knowledge and skills in the subject area of the appeal meet or exceed the performance level established by the Board for the passing standard for the performance appeal in 603 CMR 30.03(2)(b), 30.03(3)(b), 30.03(4)(b), 30.03(5)(a), 30.03(5)(b), or 30.03(5)(c), as applicable.(11) The Commissioner will notify the superintendent in writing of his or her decision and the reasons for it within ten business days after he or she receives the recommendation of the Performance Appeals Board. The superintendent shall notify the student, parent or guardian of the decision. Within 21 calendar days after receipt of the Commissioner's decision, the superintendent may respond, including seeking reconsideration of the Commissioner's decision. The decision of the Commissioner shall be final. If the appeal is granted, the student will be deemed to have met the performance appeal standard on the MCAS high school test that was the subject of the performance appeal. If the appeal is denied, the superintendent may submit a subsequent appeal on behalf of the student, as long as the student meets the eligibility requirements. To be eligible for a subsequent appeal in Science and Technology/Engineering, a student must first take a subsequent MCAS test in either the same or a different discipline.(12) Nothing in 603 CMR 30.00 shall be interpreted to limit or expand a student's rights under the Individuals with Disabilities Education Act, M.G.L. c. 71B and 603 CMR 28.00: Special Education, or Section 504 of the Rehabilitation Act of 1973. Any documentation submitted to the Department at the request of the student's IEP team in connection with a performance appeal shall not constitute modification of the student's IEP under state or federal special education law and may not be appealed to the Bureau of Special Education Appeals under the Individuals with Disabilities Education Act or M.G.L. c. 71B.Amended by Mass Register Issue 1361, eff. 3/23/2018.Amended by Mass Register Issue 1389, eff. 4/19/2019.Amended by Mass Register Issue 1477, eff. 9/2/2022.