Home » 2014 Issues » May 14, 2014 » EDU-45-13-00033-A Mandatory Reporting Requirements and Testing Misconduct
EDU-45-13-00033-A Mandatory Reporting Requirements and Testing Misconduct
5/14/14 N.Y. St. Reg. EDU-45-13-00033-A
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 19
May 14, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF ADOPTION
I.D No. EDU-45-13-00033-A
Filing No. 335
Filing Date. Apr. 29, 2014
Effective Date. May. 14, 2014
Mandatory Reporting Requirements and Testing Misconduct
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 102.4 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 225(1)-(11), 305(1) and (2); and Civil Service Law, section 75-b(2)(a)
Subject:
Mandatory reporting requirements and testing misconduct.
Purpose:
The purpose of the proposed amendment is to formally implement the recommendations of Special Investigator Hank Greenberg to enhance the security of the State assessment program by prohibiting certain testing misconduct, establishing a mandatory reporting requirement for certain school personnel who learn of any security breach or other testing misconduct, and to sanction those who fail to comply.
Text or summary was published
in the November 6, 2013 issue of the Register, I.D. No. EDU-45-13-00033-P.
Final rule as compared with last published rule:
No changes.
Revised rule making(s) were previously published in the State Register on
February 12, 2014.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on November 6, 2013, the following substantial revisions were made to the proposed rule:
The proposed rule has been revised as follows:
Subdivision (b) of section 102.4 has been revised to require charter school employees in a position for which a teaching or school leader certificate is required to report testing misconduct or face potential Part 83 moral character charges. It also requires that each charter school employee in a position for which a certificate is not required to be subject to disciplinary action by the charter school in accordance with Education Law § 225(11).
Paragraph (2) of subdivision (c) of section 102.4 shall be revised to clarify that testing misconduct shall only apply to duplicating, reproducing, or keeping any part of any secure examination materials if no prior written authorization is obtained by the Department.
Paragraph (10) of subdivision (c) of section 102.4 is revised to exclude from the definition of testing misconduct legitimate rescoring activities authorized by the superintendent of a public school district or chief administrative officer of a nonpublic or charter school or by the Department.
Subdivision (d) of section 102.4 is revised to require charter school employees to report known testing misconduct.
The above changes require that the Needs and Benefits, Federal Standards, and Compliance sections of the previously published Regulatory Impact Statement be revised to read as follows:
3. NEEDS AND BENEFITS:
In November 2011, pursuant to Education Law § 104 and section 3.9 of the Rules of the Board of Regents, the Commissioner appointed Henry “Hank” Greenberg as a Special Investigator, and tasked him with performing a review of the Department’s processes and procedures for handling and responding to reports of allegations of misconduct related to the administration and scoring of New York State assessments. In this capacity, Special Investigator Greenberg performed an exhaustive review of the Department’s processes and procedures for the intake, review, referral, investigation, findings, response, follow-up, and records retention policy regarding allegations of educator misconduct during the administration and scoring of State assessments. The review included interviews of Department personnel and others involved in testing investigations, and the review of pending and closed investigative case files, guidance materials, manuals, statutes, and regulations, among other relevant items.
On March 19, 2012, Special Investigator Greenberg reported his findings and recommendations to the Board. See Greenberg, H., Review of the New York State Education Department’s (‘NYSED’) Processes and Procedures for Handling and Responding to Reports of Alleged Irregularities in the Administration and Scoring of State Assessments. The Board accepted all of the Special Investigator’s recommendations, which included the creation of a new Test Security Unit (“TSU”) that would focus on the detection and deterrence of security breaches and other testing irregularities.
Another significant recommendation from Special Investigator Greenberg that the Board adopted was that the Department establish a mandatory reporting requirement for school personnel, who learn of any security breach or other testing misconduct, define specific context based examples of prohibited testing misconduct, and sanction those who fail to comply. (Greenberg Report, pgs. 10 and 14, emphasis in original). Pursuant to this recommendation, the TSU incorporated a mandatory reporting requirement in the Department’s testing manuals for Regents and Grades 3 through 8 examinations. The TSU recommends that the Board formalize Special Investigator Greenberg’s recommendations by amending Section 102.4 of the Commissioner’s Regulations to prohibit certain testing misconduct and that the regulation be amended to include specific concrete examples of what constitutes “testing misconduct.”
Additionally, Special Investigator Greenberg recommended that NYSED “[p]rotect from retribution persons who report security breaches and other testing irregularities.” (Greenberg Report, p. 11). Therefore, the TSU recommends that the Board formalize this recommendation for protecting persons who report test security violations to the TSU by amending Section 102.4 of the Commissioner’s Regulations to include such protection. Under Civil Service Law § 75-b, protections exist for public employees who report violations of “a law, rule, or regulation” that the reporting person reasonably believes has occurred. The proposed amendment clarifies that certified individuals who take retaliatory action against a person who makes a test fraud report in compliance with the proposed amendment may be subject to Part 83 sanctions.
The proposed amendments enhance the security of the State Assessment program in several ways. First, the regulation defines specific types of testing misconduct, prohibits such misconduct and requires that incidents of suspected testing misconduct be reported to the Department so that they can be investigated and addressed. Second, the proposed amendment serves to protect district personnel, educators and other employees in school districts and BOCES who file reports of suspected cheating from retaliation by prohibiting them from being disciplined and/or from any other adverse action as the result of the filing of a report while at the same time deterring misconduct and encouraging a culture of ethical testing by serving notice that any ethical testing breaches will be reported to the Department if they become known. The mandatory reporting requirements in the proposed amendment are consistent with the requirements of several other states, including but not limited to, Virginia, Illinois, Texas and Nevada.
9. FEDERAL STANDARDS:
There are no Federal standards that require school personnel to report testing misconduct in this State.
10. COMPLIANCE SCHEDULE:
It is anticipated that the proposed amendment will be adopted at the April Regents meeting and will become effective on May 14, 2014.
Revised Regulatory Flexibility Analysis
The above revisions to the proposed rule require that the Effect of Rule, Compliance Requirements, Professional Services, Compliance Costs and Economic and Technological Feasibility sections of the Local Government section of the previously published Regulatory Flexibility Analysis be revised to read as follows:
1. EFFECT OF RULE:
The rule applies to all school personnel in public school districts, boards of cooperative educational services (“BOCES”) and charter schools in the State.
2. COMPLIANCE REQUIREMENTS:
In November 2011, pursuant to Education Law § 104 and section 3.9 of the Rules of the Board of Regents, the Commissioner appointed Henry “Hank” Greenberg as a Special Investigator, and tasked him with performing a review of the Department’s processes and procedures for handling and responding to reports of allegations of misconduct related to the administration and scoring of New York State assessments. In this capacity, Special Investigator Greenberg performed an exhaustive review of the Department’s processes and procedures for the intake, review, referral, investigation, findings, response, follow-up, and records retention policy regarding allegations of educator misconduct during the administration and scoring of State assessments. The review included interviews of Department personnel and others involved in testing investigations, and the review of pending and closed investigative case files, guidance materials, manuals, statutes, and regulations, among other relevant items.
On March 19, 2012, Special Investigator Greenberg reported his findings and recommendations to the Board. See Greenberg, H., Review of the New York State Education Department’s (‘NYSED’) Processes and Procedures for Handling and Responding to Reports of Alleged Irregularities in the Administration and Scoring of State Assessments. The Board accepted all of the Special Investigator’s recommendations, which included the creation of a new Test Security Unit (“TSU”) that would focus on the detection and deterrence of security breaches and other testing irregularities.
Another significant recommendation from Special Investigator Greenberg that the Board adopted was that the Department establish a mandatory reporting requirement for school personnel, who learn of any security breach or other testing misconduct, define specific context based examples of prohibited testing misconduct, and sanction those who fail to comply. (Greenberg Report, pgs. 10 and 14, emphasis in original). Pursuant to this recommendation, the TSU incorporated a mandatory reporting requirement in the Department’s testing manuals for Regents and Grades 3 through 8 examinations. The TSU recommends that the Board formalize Special Investigator Greenberg’s recommendations by amending Section 102.4 of the Commissioner’s Regulations to prohibit certain testing misconduct and that the regulation be amended to include specific concrete examples of what constitutes “testing misconduct.”
Additionally, Special Investigator Greenberg recommended that NYSED “[p]rotect from retribution persons who report security breaches and other testing irregularities.” (Greenberg Report, p. 11). Therefore, the TSU recommends that the Board formalize this recommendation for protecting persons who report test security violations to the TSU by amending Section 102.4 of the Commissioner’s Regulations to include such protection. Under Civil Service Law § 75-b, protections exist for public employees who report violations of “a law, rule, or regulation” that the reporting person reasonably believes has occurred. The proposed amendment clarifies that certified individuals who take retaliatory action against a person who makes a test fraud report in compliance with the proposed amendment may be subject to Part 83 sanctions.
The proposed amendments enhance the security of the State Assessment program in several ways. First, the regulation defines specific types of testing misconduct, prohibits such misconduct and requires that incidents of suspected testing misconduct be reported to the Department so that they can be investigated and addressed. Second, the proposed amendment serves to protect district personnel, educators and others who file reports of suspected cheating from retaliation in school districts and BOCES by prohibiting them from being disciplined and/or from any other adverse action as the result of the filing of a report while at the same time deterring misconduct and encouraging a culture of ethical testing by serving notice that any ethical testing breaches will be reported to the Department if they become known. The mandatory reporting requirements in the proposed amendment are consistent with the requirements of several other states, including but not limited to, Virginia, Illinois, Texas and Nevada.
3. PROFESSIONAL SERVICES:
The proposed rule does not impose any additional professional services requirements on school districts, BOCES or charter schools.
4. COMPLIANCE COSTS:
The purpose of the proposed amendment is to formally implement the recommendations of Special Investigator Hank Greenberg to enhance the security of the State assessment program by prohibiting certain testing misconduct, establishing a mandatory reporting requirement for school personnel, who learn of any security breach or other testing misconduct, and to sanction those who fail to comply. The proposed amendment does not impose any additional costs on school districts, BOCES and charter schools beyond those currently imposed.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule does not impose any additional costs or technological requirements on school districts, BOCES or charter schools beyond those already imposed.
Revised Rural Area Flexibility Analysis
The above revisions to the proposed rule require that the Reporting, Recordkeeping, and Other Compliance Requirements; and Professional Services sections the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
In November 2011, pursuant to Education Law § 104 and section 3.9 of the Rules of the Board of Regents, the Commissioner appointed Henry “Hank” Greenberg as a Special Investigator, and tasked him with performing a review of the Department’s processes and procedures for handling and responding to reports of allegations of misconduct related to the administration and scoring of New York State assessments. In this capacity, Special Investigator Greenberg performed an exhaustive review of the Department’s processes and procedures for the intake, review, referral, investigation, findings, response, follow-up, and records retention policy regarding allegations of educator misconduct during the administration and scoring of State assessments. The review included interviews of Department personnel and others involved in testing investigations, and the review of pending and closed investigative case files, guidance materials, manuals, statutes, and regulations, among other relevant items.
On March 19, 2012, Special Investigator Greenberg reported his findings and recommendations to the Board. See Greenberg, H., Review of the New York State Education Department’s (‘NYSED’) Processes and Procedures for Handling and Responding to Reports of Alleged Irregularities in the Administration and Scoring of State Assessments. The Board accepted all of the Special Investigator’s recommendations, which included the creation of a new Test Security Unit (“TSU”) that would focus on the detection and deterrence of security breaches and other testing irregularities.
Another significant recommendation from Special Investigator Greenberg that the Board adopted was that the Department establish a mandatory reporting requirement for school personnel, who learn of any security breach or other testing misconduct, define specific context based examples of prohibited testing misconduct, and sanction those who fail to comply. (Greenberg Report, pgs. 10 and 14, emphasis in original). Pursuant to this recommendation, the TSU incorporated a mandatory reporting requirement in the Department’s testing manuals for Regents and Grades 3 through 8 examinations. The TSU recommends that the Board formalize Special Investigator Greenberg’s recommendations by amending Section 102.4 of the Commissioner’s Regulations to prohibit certain testing misconduct and that the regulation be amended to include specific concrete examples of what constitutes “testing misconduct.”
Additionally, Special Investigator Greenberg recommended that NYSED “[p]rotect from retribution persons who report security breaches and other testing irregularities.” (Greenberg Report, p. 11). Therefore, the TSU recommends that the Board formalize this recommendation for protecting persons who report test security violations to the TSU by amending Section 102.4 of the Commissioner’s Regulations to include such protection. Under Civil Service Law § 75-b, protections exist for public employees who report violations of “a law, rule, or regulation” that the reporting person reasonably believes has occurred. The proposed amendment clarifies that certified individuals who take retaliatory action against a person who makes a test fraud report in compliance with the proposed amendment may be subject to Part 83 sanctions.
The proposed amendments enhance the security of the State Assessment program in several ways. First, the regulation defines specific types of testing misconduct, prohibits such misconduct and requires that incidents of suspected testing misconduct be reported to the Department so that they can be investigated and addressed. Second, the proposed amendment serves to protect district personnel, educators and others in school districts and boards of cooperative educational services who file reports of suspected cheating from retaliation by prohibiting them from being disciplined and/or from any other adverse action as the result of the filing of a report while at the same time deterring misconduct and encouraging a culture of ethical testing by serving notice that any ethical testing breaches will be reported to the Department if they become known. The mandatory reporting requirements in the proposed amendment are consistent with the requirements of several other states, including but not limited to, Virginia, Illinois, Texas and Nevada.
Revised Job Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on November 6, 2013, the proposed rule has been revised as set forth in the Revised Regulatory Impact Statement published herewith. The purpose of the proposed amendment, as revised, is to formally implement the recommendations of Special Investigator Hank Greenberg to enhance the security of the State assessment program. Specifically, the proposed amendment prohibits certain testing misconduct and establishes a mandatory reporting requirement for school personnel who learn of any security breach or other testing misconduct, and to sanction those who fail to comply. Because it is evident from the nature of the proposed revised rule that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Since publication of a Notice of Revised Rule Making in the State Register on February 12, 2014, the State Education Department received the following comments:
1. COMMENT:
One commenter asked what the Department’s intent was regarding the applicability of the rules to teachers, administrators and other staff of charter schools who are involved in the administration and scoring of student assessments. Does the Department intend the prohibition of testing misconduct to apply to these individuals? How are charter school staff meant to be covered by the mandatory misconduct reporting requirement? If subject to the reporting mandate, how are staff intended to be protected from retaliatory actions?
DEPARTMENT RESPONSE:
In order to protect the integrity of the State assessments and to eliminate any testing and/or security breaches on such assessments, the Department has revised the proposed amendment to require employees of charter schools to be covered by the reporting requirement and to make the prohibition of testing misconduct apply to charter school employees. While Civil Service Law 75-b does not apply to charter schools, we would encourage charter schools to not take any retaliatory actions against an employee for reporting under this section of the regulations.
2. COMMENT:
The proposed amendment would impose requirements on school employees that are inconsistent with existing school governance and reporting structures. Specifically, the Proposed Rule would require employees to report suspected incidents of academic dishonesty directly to the SED Executive Director of the Test Security and Educator Integrity Unit (“SED Director”). This reporting requirement, however, conflicts with demonstrated methods of effective school governance, and would unnecessarily delay the prompt resolution of any suspected cases of testing misconduct.
The Rule should be amended so that school employees are required to report to school leadership (i.e., the principal) any suspected incidents of academic dishonesty. School leadership would then conduct an investigation, make a determination based on the facts, and report substantiated incidents to the SED Director. School employees should only be required to bypass the procedure described above when:
1. Principals are implicated in the suspected misconduct; and/or
2. School leadership declines to report the incident to the SED Director after conducting an investigation, where the employee continues to believe that a reportable incident took place.
Bypassing school-level reporting structures undermines good school governance and inhibits effective school management, which requires that school leadership serve as the first point of contact for school-level allegations. Additionally, the Rule as currently written would impose an unnecessary delay to the start of the investigation. School leadership, on the other hand, is positioned to investigate and resolve or address such incidents immediately as they are raised.
DEPARTMENT RESPONSE:
A significant recommendation from Special Investigator Greenberg that the Board adopted was that the Department establish a mandatory reporting requirement for school personnel, who learn of any security breach or other testing misconduct, define specific context based examples of prohibited testing misconduct, and sanction those who fail to comply. (Greenberg Report, pgs. 10 and 14, emphasis in original). Pursuant to this recommendation, the Department’s Test Security Unit incorporated a mandatory reporting requirement in the Department’s testing manuals for Regents and Grades 3 through 8 examinations. The proposed amendment merely formalizes Special Investigator Greenberg’s recommendations by amending Section 102.4 of the Commissioner’s Regulations to prohibit certain testing misconduct and provides specific concrete examples of what constitutes “testing misconduct.”
There is nothing in the proposed amendment that prohibits a school district, BOCES or charter school from conducting its own internal investigation of any testing misconduct for purposes of discipline and/or enhancing its own testing procedures. However, the Department also has a significant interest in protecting the integrity of the State assessments. The proposed amendment merely formalizes a current requirement that school districts and BOCES report testing misconduct to the Department’s Test Security Unit and requires charter school employees to do the same.
3. COMMENT: We write to comment on the Revised Rule Making issued by the State Education Department (“SED”) relating to Mandatory Reporting Requirements and Testing Misconduct, I.D. No. EDU-45-13-00033-RP, which was published in the February 12, 2014, New York State Register (the “Revised Proposed Rule”). We wish to reiterate that we fully support New York State’s commitment to ensuring the security of the State Assessment program. We uncompromisingly believe that schools must be free of cheating and any other form of academic dishonesty.
However, we object to the requirement on charters schools to the extent that are inconsistent with Education Law. Specifically, Education Law § 2854 expressly states that public charter schools are exempt from all state regulations “governing public or private schools, boards of education and school districts, including those relating to school personnel. . . .” N.Y. Educ. Law § 2854(1)(b) (emphasis supplied).
The Revised Proposed Rule would impose requirements on charter schools with regard to their school personnel. Such requirements conflict with the Education Law and are therefore impermissible under the law. See Trump-Equitable Fifth Ave. Co. v. Gliedman, 57 N.Y.2d 588, 595, 457 N.Y.S.2d 466, 469 (1982) (“It is well established that in exercising its rule-making authority an administrative agency cannot extend the meaning of the statutory language to apply to situations not intended to be embraced within the statute. Nor may an agency promulgate a rule out of harmony with or inconsistent with the plain meaning of the statutory language.”) (internal citations omitted).
First, the sub-section explains that “[t]esting misconduct, assisting in the engagement of, or soliciting another to engage in testing misconduct and/or the knowing failure to report testing misconduct” when committed by a charter school employee “in a position for which a teaching or school leader certificate is required, shall be deemed to raise a reasonable question of moral character under Part 83 of this Title and shall be subject to referral to the Office of School Personnel Review and Accountability at the [SED] to the extent provided in Section 83.1 of this Title.” Proposed Rule 8 NYCRR § 102.4(b) (emphasis added). Section 83.1(a) requires that the “chief school administrator” make the referral to SED. 8 NYCRR § 83.1(a). The language in the revised sub-section, therefore, appears to require the charter school to refer its own personnel for discipline to SED. Such a policy clearly relates to the charter school’s relationship with its school personnel,” an area in which charter schools are explicitly exempt from state regulations and are outside SED’s jurisdiction. As such, the Proposed Rule is “out of harmony with” and “inconsistent with the plain meaning of” Education Law § 2854, and is therefore invalid. See Trump-Equitable Fifth Ave. Co., 57 N.Y.2d at 595, 457 N.Y.S.2d at 469.
Second, the revised sub-section requires that “charter school employee[s] in a position for which a teaching or school leader certificate is not required who commit[] an unlawful act in respect to examination and records. . . shall be subject to disciplinary action by the. . . charter school in accordance with subdivision 11 of Education Law § 225.”[1] (emphasis added). While charter schools are committed to ensuring that their employees do not commit unlawful acts, including those in respect to examination and records, SED lacks jurisdiction to impose such obligations on charter schools vis-a-vis their own employees. As above, this revised sub-section contradicts the express language in Education Law § 2854 and is therefore impermissible under the law. See Trump-Equitable Fifth Ave. Co., 57 N.Y.2d at 595, 457 N.Y.S.2d at 469.
The Revised Proposed Rule should be amended so that charter schools are not subject to state regulations “relating to school personnel,” in accordance with Education Law § 2854.
DEPARTMENT RESPONSE: Education Law § 2854 provides that a charter school shall meet the same health and safety, civil rights and student assessment requirements applicable to other public schools. A significant recommendation from Special Investigator Greenberg on the security of the State’s student assessments that the Board of Regents adopted was that the Department establish a mandatory reporting requirement for school personnel, who learn of any security breach or other testing misconduct, define specific context based examples of prohibited testing misconduct, and sanction those who fail to comply. (Greenberg Report, pgs. 10 and 14, emphasis in original). Pursuant to this recommendation, the Department’s Test Security Unit incorporated a mandatory reporting requirement in the Department’s testing manuals for Regents and Grades 3 through 8 examinations, as a critical student assessment requirement needed to protect the integrity of the testing process applicable to all schools that administer the State assessments. The proposed amendment merely formalizes Special Investigator Greenberg’s recommendations by amending Section 102.4 of the Commissioner’s Regulations to prohibit certain testing misconduct and provides specific concrete examples of what constitutes “testing misconduct.”
There is nothing in the proposed amendment that prohibits a charter school from conducting its own internal investigation of any testing misconduct for purposes of discipline and/or enhancing its own testing procedures. However, the Department also has a significant interest in protecting the integrity of the State assessments. Education Law § 225 specifically addresses unlawful acts relating to student assessments and charter schools are subject to the same student assessment requirements as public schools (Education Law § 2854[1][b]) and in order to protect the State assessment program, all school personnel must be subject to disciplinary action for unlawful acts relating to improper conduct on student assessments. No specific disciplinary measures or procedures are prescribed in the regulation—all that is required is that schools make testing misconduct, which is criminal conduct constituting a misdemeanor under Education Law § 225(10), grounds for disciplinary action.
