EDU-53-08-00008-P Administration of Ability-to-Benefit Tests for Purposes of Eligibility for Awards of State Aid

12/31/08 N.Y. St. Reg. EDU-53-08-00008-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 53

December 31, 2008

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-53-08-00008-P

Administration of Ability-to-Benefit Tests for Purposes of Eligibility for Awards of State Aid

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 145-2.15 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided) and 661(4)

Subject:

Administration of ability-to-benefit tests for purposes of eligibility for awards of state aid.

Purpose:

To clarify the requirements for the independent administration of ability-to-benefit tests.

Text of proposed rule:

Section 145-2.15 of the Regulations of the Commissioner of Education is amended, effective April 9, 2009, as follows:

§ 145-2.15 Administration of ability-to-benefit tests for purposes of eligibility for awards [and loans].

(a) . . .

(b) Definitions. For purposes of this section:

(1) [Assessment] Testing center means a center that:

(i) . . .

(ii) is located at an eligible institution if the following requirements are met:

(a) . . .

(b) . . .

(c) the center is staffed by professional employees who have been trained in test administration and Federal guidelines regarding the administration of ability-to-benefit tests and [who are] such employees shall not be employed through, or perform the duties of, the admissions, student financial aid, or registrar's offices of the institution; and

(d) . . .

(2) . . .

(3) . . .

(4) . . .

(c) Ability-to-benefit tests approved by the Board of Regents for eligibility for awards under section 661 of the Education Law.

(1) . . .

(2) For purposes of eligibility for awards [and loans] under section 661 of the Education Law, the department shall publish a list of ability-to-benefit tests that the Board of Regents has identified as satisfactory in determining eligibility to receive a first award in the academic year 2007-2008 and each year thereafter for students without a certificate of graduation from a school providing secondary education from a state within the United States or the recognized equivalent of such a certificate. The identification of such tests shall be without term unless the department determines that a test is no longer satisfactory in determining eligibility for awards under section 661 of the Education Law or the secretary discontinues Federal recognition of such test.

(d) Satisfactory passing score. For purposes of eligibility for awards under section 661 of the Education Law, an eligible institution shall submit for approval by the Board of Regents[,] the passing score it proposes to utilize on any ability-to-benefit test approved by the Board of Regents under subdivision (c) of this section, in a form prescribed by the commissioner. Such score shall not be lower than the score set by the secretary and the eligible institution shall submit an explanation of its reasons for selecting such passing score and any other information the commissioner may require. Approval of such passing score shall be without term unless the department determines that the passing score is no longer satisfactory in determining eligibility for awards under section 661 of the Education Law or the institution seeks to change such passing score or no longer offers the approved ability-to-benefit test.

In determining whether to approve the proposed score or scores, the commissioner shall take into consideration the following factors:

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(e) Independent administration and evaluation of ability-to-benefit test. For purposes of meeting the eligibility requirements for awards under section 661 of the Education Law, the institution shall independently administer and evaluate ability-to-benefit tests approved by the Board of Regents in accordance with the requirements of this subdivision. The department will consider an ability-to-benefit test to be independently administered and evaluated if the following requirements are met:

(1) The test is administered [at an assessment] at one of the following locations:

(i) a testing center that is not located at and/or affiliated with the institution for which the student is seeking enrollment and the test administrator is an employee of such center; or

[(2)] (ii) [the test is administered at] a degree-granting institution that confers two-year or four- year degrees or an institution that qualifies as an eligible public vocational institution and the chief executive officer of such institution certifies annually, in a form prescribed by the commissioner, that:

[(i)] (a) the test is administered by a unit of the institution that is responsible for other forms of testing or for [a] provision of academic support services, or both, and such unit does not report to officers responsible for admissions or the administration of student financial aid for such institution;

[(ii)] (b). . .

[(iii)] (c). . .

[(iv)] (d). . .

[(v)] (e) the scoring of ability-to-benefit tests is in accordance with the test publisher's instructions and is overseen by institutional employees who are not employed through, or perform the functions of the admissions, student financial aid, or registrar's offices and such scores are verified by more than one employee;

[(vi)] (f) all tests, test results, and test databases, if any, are kept [in locked and secure containers] secure;

[(vii)] (g). . .

[(viii)] (h) the test administrator is not a current or former member of the board of directors, a current or former employee of or a consultant to a member of the board of directors or a chief executive officer;

[(ix)] (i) the test administrator is not a current [or former] student of the institution;

[(x)] (j) the test administrator is not scoring the test; and

[(xi)] (k) the annual certification shall also include the following information relating to the previous academic year: the number of students examined, the number of re-tests administered, the scores on all ability-to-benefit tests for each student examined, the number of students achieving passing scores on such tests, the number of students tested that are enrolling in such institution and the success of tested students in terms of retention and graduation; or

[(3)] (iii) [the test is administered at] an eligible institution that does not have degree-conferring authority and such institution is not a public vocational institution and the test is given by a test administrator who:

[i] (a). . .

[ii] (b). . .

[iii] (c). . .

[iv] (d) . . .

[v] (e) . . .

[vi] (f). . .

[vii] (g) . . .

[(viii)] (h). . .

[(ix)] (i). . .

[(x)] (j) upon request, gives the [commission] Commissioner, guaranty agency, accrediting agency, and law enforcement agencies access to test records or other documents related to an examination, audit, investigation, or program review of the institution or test publisher[;].

[(4)] (2) The commissioner will not consider a test independently administered if an institution:

(i) . . .

(ii) . . .

(iii) otherwise interferes with the test administrator's independence or test administration[;].

[(5)] (3) Any institution administering an ability-to-benefit test shall maintain a record for each student who sat for an ability-to-benefit test under this section, including the name of the test taken by such student, the date of the test and the student's scores on such tests[;]. This information shall be retained in the student's permanent record.

[(6)] (4) Upon request, the eligible institution shall provide the commissioner with access to test records or other documents related to an audit, investigation or program review of the institution[;]

[(7)] (5) If the commissioner finds that an institution has violated the certification procedures or the ability-to-benefit test procedures under this section, the commissioner shall have the authority to require an eligible institution to employ [an assessment] a testing center independent of such institution.

Text of proposed rule and any required statements and analyses may be obtained from:

Lisa Struffolino, New York State Education Department, 89 Washington Avenue, Room 148, Albany, New York 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Johanna Duncan-Poitier, Senior Deputy Commissioner of P16, New York State Education Department, 2M West Wing, Education Building, Albany, New York 12257, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Paragraph (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, requires institutions participating in State student aid programs to require that eligible students seeking aid for the first time in the 2007-08 academic year or thereafter, who do not have U.S. high school diplomas or the recognized equivalent, achieve approved passing scores on a federally approved "ability-to-benefit" test identified by the Board of Regents that is independently administered as defined by the Commissioner.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the legislative objectives of the above-referenced statute by clarifying the requirements for the independent administration of ability-to-benefit tests.

3. NEEDS AND BENEFITS:

Education Law § 661 sets forth the eligibility requirements and conditions for general awards, academic performance awards and student loans. Chapter 57 of the Laws of 2007 added a new paragraph (e) to subdivision (4) to that section, establishing requirements for students seeking aid under State student financial aid for the first time in the 2007-08 academic year and thereafter, who do not hold diplomas from high schools located within the United States or their recognized equivalent.

The Department developed § 145-2.15 with the advice and assistance of a Work Group comprised of academic and financial aid officers of public, independent, and proprietary colleges and universities, SUNY, CUNY, CICU, APC, and HESC. Upon subsequent review by the Work Group and through experience in administering, monitoring, and auditing compliance, the Work Group has identified certain amendments to the regulation that are needed to reduce uncertainty and confusion and to eliminate unnecessary and overly burdensome requirements.

For instance, § 145-2.15 of the Commissioner's regulations makes reference to "assessment centers" that may be either free-standing entities or centers operated by higher education institutions or public vocational institutions. However, federal regulations governing the administration of HEA Title IV student aid funds (34 CFR 668.142) also make use of the phrase, "assessment center" with a meaning different from that in § 145-2.15 of the Commissioner's regulations. To reduce confusion, the proposed amendment replaces the phrase "assessment center" with "testing center".

The amendment also makes several technical amendments and clarifies the limitations on employees of a testing center. Specifically, the amendment adds to the existing prohibition on test center employees, a prohibition on not only the use of any person employed through the admissions, student financial aid, or registrar's offices at an institution, but a prohibition on the use of any employee who carries out the functions of such offices.

The proposed amendment also requires that the scoring of an ability-to-benefit test be "in accordance with the test publisher's instructions."

In light of the fact that tests may be offered on computer as well as in paper-and-pencil format, the proposed amendment requires that tests, results, and databases be kept "secure" instead of "in locked and secured containers".

The proposed amendment also eliminates the prohibition against an institution employing a former student as a test administrator because it is unnecessarily restrictive, given the other constraints § 145-2.15 of the Commissioner's regulations places on the administration of ability-to-benefit tests.

Section 145-2.15(e) of the Commissioner's regulations is also amended to clarify that in order for the Department to consider a test "independently administered", it must be administered at one of the following locations: (1) a testing center that is not located at and/or affiliated with the institution for which the student is seeking enrollment; (2) a degree-granting institution that confers two-year or four-year degrees or an institution that qualifies as an eligible public vocational institution provided that the chief executive officer certifies annually that certain procedures have been followed; or (3) an eligible non-degree granting institution that is not a public vocational institution provided that the test is given by a test administrator meeting certain requirements delineated in the proposed amendment.

4. COSTS:

(a) Costs to State government. This amendment will not impose any additional costs on State government over and above those resulting from the existing provisions of § 145-2.15 of the Commissioner's regulations. The State Education Department will use existing personnel and resources to administer the amendment's provisions.

(b) Costs to local government. This amendment will not impose any additional costs on local governments over and above those resulting from the existing terms of § 145-2.15.

(c) Costs to private regulated parties. This amendment will not impose any additional costs on private regulated parties over and above those resulting from the existing requirements set forth in § 145-2.15 of the Commissioner's regulations.

(d) Costs to the regulatory agency. As stated above under Costs to State Government, the proposed amendment would not impose any additional costs on the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment clarifies the requirements for the independent administration of ability-to-benefit tests for students applying for State student financial aid for the first time in 2007-08 and thereafter, who do not hold diplomas from high schools located in the United States or its recognized equivalent. The proposed amendment will not affect local governments in New York State. The measure will not impose any adverse economic impact, reporting, recordkeeping, or any other compliance requirements on local governments.

6. PAPERWORK:

The proposed amendment would impose no additional paperwork beyond that already required by § 145-2.15 of the Commissioner's regulations.

7. DUPLICATION:

The definition for testing center is similar to the federal definition of assessment center set forth in Section 668.142 of the Code of Federal Regulations for requirements for federal aid and the criteria set forth in the proposed amendment for the independent administration of ability-to-benefit tests build upon the federal requirements set forth in Section 668.151 of the Code of Federal Regulations.

8. ALTERNATIVES:

In developing the proposed amendment, the State Education Department consulted with a Work Group that comprised of The City University of New York Central Administration, the State University of New York System Administration, Clarkson University, The College of New Rochelle, Touro College, the Commission on Independent Colleges and Universities, Monroe College, Plaza College, the Association of Proprietary Colleges, and the New York State Higher Education Services Corporation. The proposed amendment represents the result of that consultation. There are no viable alternatives to the proposed amendment.

9. FEDERAL STANDARDS:

There are no federal standards applicable to the administration of State student financial aid programs. However, the definition for testing center is similar to the federal definition of assessment center set forth in Section 668.142 of the Code of Federal Regulations for requirements for federal aid and the criteria set forth in the proposed amendment for the independent administration of ability-to-benefit tests build upon the federal requirements set forth in Section 668-151 of the Code of Federal Regulations.

10. COMPLIANCE SCHEDULE:

Regulated parties must comply with the proposed amendment on its stated effective date. No additional period of time is necessary to enable regulated parties to comply.

Regulatory Flexibility Analysis

(a) Small Businesses:

1. EFFECT OF RULE:

The proposed amendment clarifies the requirements for the independent administration of ability-to-benefit tests for students applying for State student financial aid for the first time in the 2007-2008 academic year and thereafter, who do not hold diplomas from high schools located in the United States or their recognized equivalent. State Education Department data indicate that 20 of the eligible 39 proprietary colleges in the State (51 percent) are small businesses with 100 or fewer employees.

2. COMPLIANCE REQUIREMENTS:

The Department developed § 145-2.15 with the advice and assistance of a Work Group comprised of academic and financial aid officers of public, independent, and proprietary colleges and universities, SUNY, CUNY, CICU, APC, and HESC. Upon subsequent review by the Work Group and through experience in administering, monitoring, and auditing compliance, the Work Group has identified certain amendments to the regulation that are needed to reduce uncertainty and confusion and to eliminate unnecessary and overly burdensome requirements.

For instance, § 145-2.15 of the Commissioner's regulations makes reference to "assessment centers" that may be either free-standing entities or centers operated by higher education institutions or public vocational institutions. However, federal regulations governing the administration of HEA Title IV student aid funds (34 CFR 668.142) also make use of the phrase, "assessment center" with a meaning different from that in § 145-2.15 of the Commissioner's regulations. To reduce confusion, the proposed amendment replaces the phrase "assessment center" with "testing center".

The amendment also makes several technical amendments and clarifies the limitations on employees of a testing center. Specifically, the amendment adds to the existing prohibition on test center employees, a prohibition on not only the use of any person employed through the admissions, student financial aid, or registrar's offices at an institution, but a prohibition on the use of any employee who performs the duties of such offices. The proposed amendment also requires that the scoring of an ability-to-benefit test to be "in accordance with the test publisher's instructions."

In light of the fact that tests may be offered on computer as well as in paper-and-pencil format, the proposed amendment requires that tests, results, and databases be kept "secure" instead of "in locked and secured containers".

The proposed amendment also eliminates the prohibition against an institution employing a former student as a test administrator because it is unnecessarily restrictive, given the other constraints § 145-2.15 of the Commissioner's regulations places on the administration of ability-to-benefit tests.

Section 145-2.15(e) of the Commissioner's regulations is also amended to clarify that in order for the Department to consider a test "independently administered", it must be administered at one of the following locations: (1) a testing center that is not located at and/or affiliated with the institution for which the student is seeking enrollment; (2) a degree-granting institution that confers two-year or four-year degrees or an institution that qualifies as an eligible public vocational institution provided that the chief executive officer certifies annually that certain procedures have been followed; or (3) an eligible non-degree granting institution that is not a public vocational institution provided that the test is given by a test administrator meeting certain requirements delineated in the proposed amendment.

3. PROFESSIONAL SERVICES:

The proposed amendment will not require eligible institutions that are classified as small businesses to hire professional services to comply. The State Education Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

4. COMPLIANCE COSTS:

The amendment will not impose any additional costs on institutions eligible to participate in State student aid programs that are classified as small businesses and that admit students without diplomas from U.S. high schools and seek to qualify such students for State student financial aid over and above those resulting from the existing terms of § 145-2.15. In fact, by increasing flexibility for such institutions, the amendment's repeal of unnecessary mandates may have the effect of reducing costs on those entities. The State Education Department expects that existing staff at eligible institutions that are classified as small businesses will satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

The proposed amendment will not impose any capital costs on eligible institutions that are classified as small businesses.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment will not impose any technological requirements on eligible institutions that are classified as small businesses. See above "Compliance Costs" for the economic impact of the amendment.

6. MINIMIZING ADVERSE IMPACT:

Paragraph (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, applies equally to all institutions eligible to participate in State student aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid, including those classified as small businesses. Consequently, the State Education Department believes that the proposed amendment to § 145-2.15 also must apply uniformly to all such institutions.

7. SMALL BUSINESS PARTICIPATION:

Before drafting the proposed amendment, the State Education Department convened a Work Group comprised of persons from all four sectors of higher education knowledgeable about student financial aid and about academic affairs, including proprietary colleges that are classified as small businesses, as well as the president of the association of proprietary colleges, many of which are classified as small businesses. The comments they provided were taken into account in drafting the proposed amendment.

(b) Local Governments:

The proposed amendment will not affect local governments in New York State. The measure will not impose any adverse economic impact, reporting, recordkeeping, or any other compliance requirements on small businesses or local governments. Because it is evident from the nature of the proposed amendment that it does not affect small businesses or local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis is not required and one was not prepared.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment clarifies the requirements for the independent administration of ability-to-benefit tests, for students applying for State student financial aid for the first time in the 2007-08 academic year and thereafter, who do not hold diplomas from high schools located in the United States or their recognized equivalent. The proposed amendment applies only to institutions eligible to participate in State student financial aid programs that admit students without diplomas from U.S. high schools and seek to qualify such students for State student financial aid, including such institutions located in the State's 44 rural counties with fewer than 200,000 inhabitants and 71 towns in urban counties with a population density of 150 per square mile or less.

There are 271 degree-granting institutions in the State, including 64 campuses and community colleges in the State University of New York, 19 senior and community colleges of The City University of New York, 149 independent colleges and universities, and 39 proprietary colleges. Excluding The City University of New York's 19 campuses, there are 252 degree-granting institutions, of which 218 (80.4 percent) admit undergraduates. At least 54 of the 218 institutions (24.8 percent) reportedly use Ability-to-Benefit tests for admission, placement, or financial aid purposes. Of the 218 institutions that admit students to undergraduate study, 62 (28.4 percent) are located in rural areas, including 13 that reportedly make use of Ability-to-Benefit tests. Consequently, the Department estimates that the number of degree-granting institutions located in rural areas that would be affected by the proposed amendment is not less than 13 and is not likely to be more than 15 (24.8 percent of the 62 institutions located in rural areas).

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The purpose of the proposed amendment is to clarify the requirements for the independent administration of ability-to-benefit tests for students applying for State student financial aid for the first time in the 2007-08 academic year and thereafter, who do not hold diplomas from high schools located in the United States or their recognized equivalent.

For instance, § 145-2.15 of the Commissioner's regulations makes reference to "assessment centers" that may be either free-standing entities or centers operated by higher education institutions or public vocational institutions. However, federal regulations governing the administration of HEA Title IV student aid funds (34 CFR 668.142) also make use of the phrase, "assessment center" with a meaning different from that in § 145-2.15 of the Commissioner's regulations. To reduce confusion, the proposed amendment replaces the phrase "assessment center" with "testing center".

The amendment also makes several technical amendments and clarifies the limitations on employees of a testing center. Specifically, the amendment adds to the existing prohibition on test center employees, a prohibition on not only the use of any person employed through the admissions, student financial aid, or registrar's offices at an institution, but a prohibition on the use of any employee who performs the duties of such offices. The proposed amendment also requires that the scoring of an ability-to-benefit test to be "in accordance with the test publisher's instructions."

In light of the fact that tests may be offered on computer as well as in paper-and-pencil format, the proposed amendment requires that tests, results, and databases be kept "secure" instead of "in locked and secured containers".

The proposed amendment also eliminates the prohibition against an institution employing a former student as a test administrator because it is unnecessarily restrictive, given the other constraints § 145-2.15 of the Commissioner's regulations places on the administration of ability-to-benefit tests.

Section 145-2.15(e) of the Commissioner's regulations is also amended to clarify that in order for the Department to consider a test "independently administered", it must be administered at one of the following locations: (1) a testing center that is not located at and/or affiliated with the institution for which the student is seeking enrollment; (2) a degree-granting institution that confers two-year or four-year degrees or an institution that qualifies as an eligible public vocational institution provided that the chief executive officer certifies annually that certain procedures have been followed; or (3) an eligible non-degree granting institution that is not a public vocational institution provided that the test is given by a test administrator meeting certain requirements delineated in the proposed amendment.

The proposed amendment will not require eligible institutions, including those located in rural areas, to hire professional services to comply.

3. COSTS:

The proposed amendment will not impose any additional costs on institutions eligible to participate in State student aid programs that admit students without diplomas from U.S. high schools, or the recognized equivalent, and that seek to qualify such students for State student financial aid, including such institutions located in rural areas, over and above those resulting from the current requirements of § 145-2.15 of the Commissioner's regulations. On the contrary, by increasing flexibility for such institutions, the amendment's repeal of unnecessary mandates may have the effect of reducing those costs. The State Education Department expects that existing staff at eligible institutions, including those located in rural areas, will satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

The amendment will not impose any additional costs on eligible institutions, including those located in rural areas.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment makes no exception for eligible institutions that are located in rural areas. Paragraph (e) of subdivision (4) of section 661 of the Education Law applies equally to all institutions eligible to participate in State student aid programs that admit students without diplomas from U.S. high schools, or their recognized equivalent, and seek to qualify such students for State student financial aid, including those located in rural areas. Consequently, the State Education Department believes that the proposed amendment, which clarifies the requirements for the independent administration of such tests must apply uniformly to all such institutions, including those located in rural areas and that it would be inappropriate to establish different standards for eligible institutions located in rural areas.

5. RURAL AREA PARTICPATION:

Before drafting the proposed amendment, the State Education Department convened a Work Group comprised of persons from all four sectors of higher education knowledgeable about student financial aid and about academic affairs. The group included representatives of eligible institutions located in rural areas, as well as of the Association of Proprietary Colleges, the Commission on Independent Colleges and Universities, and the State University of New York system administration, many of whose institutions or campuses are located in rural areas. The comments they provided were taken into consideration when drafting the proposed amendment.

Job Impact Statement

The proposed amendment clarifies the requirements for the independent administration of ability-to-benefit tests for students applying for State student financial aid for the first time in the 2007-2008 academic year who do not hold diplomas from high schools located in the United States, or their recognized equivalent.

Because it is evident from the nature of the proposed amendment that it will not affect jobs or employment opportunities at institutions eligible to participate in State student financial aid programs, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.