EDU-26-07-00010-RP Administration of Ability-to-Benefit Tests for Eligibility for Awards and Loans

9/5/07 N.Y. St. Reg. EDU-26-07-00010-RP

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 36

September 05, 2007

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-26-07-00010-RP

Administration of Ability-to-Benefit Tests for Eligibility for Awards and Loans

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

Revised action:

Addition of section 145-2.15 to Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided), 215 (not subdivided) and 661(4); L. 2007, ch. 57, part E-1, sections 1 and 2

Subject:

Administration of ability-to-benefit tests for eligibility for awards.

Purpose:

To identify certain ability-to-benefit tests and the passing scores for such tests that the Board of Regents approve for purposes of eligibility for awards under section 661 of the Education Law. The proposed amendment also establishes criteria that the department will utilize to determine if an approved ability-to-benefit test is independently administered; in order to implement the requirements of chapter 57 of the Laws of 2007.

Substance of revised rule:

The Board of Regents has added section 145-2.15 to the Regulations of the Commissioner of Education relating to the administration of ability-to-benefit tests for eligibility for awards. Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on July 18, 2007, the rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith. The following is a summary of the revised proposed rule.

Subdivision (a) of section 145-2 sets forth the applicability of this section, i.e., the identification of certain ability-to-benefit tests approved by the Board of Regents and the passing scores for such tests and the criteria the commissioner shall utilize when determining whether an approved ability-to-benefit test is independently administered.

Subdivision (b) of section 145-2.15 defines the following terms: assessment center; federally approved ability-to-benefit test; school providing secondary education from a state within the United States; and Secretary.

Paragraph (1) of Subdivision (c) of section 145-2.15 provides that for students first receiving aid in the 2007–2008 academic year and each academic year thereafter, students shall have a certificate of graduation from a recognized school providing secondary education from a state within the United States, or the recognized equivalent of such certificate, or receive a passing score on a federally approved ability-to-benefit test identified by the Board of Regents as satisfying the eligibility requirements of this section that has been independently administered and evaluated.

Paragraph (2) of subdivision (c) of section 145-2.15 requires the department to publish a list of ability-to-benefit tests that the Board of Regents has identified as satisfactory in determining eligibility to receive an award. 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 or the Secretary discontinues federal recognition of such test.

Subdivision (d) of section 145-2.15 provides that 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, in a form prescribed by the commissioner. This subdivision states that the score shall not be lower than the score set by the Secretary and he eligible institution shall submit an explanation of its reasons for selecting such passing score. Approval of such score shall be without term unless the department determines that the passing score is no longer satisfactory in determining eligibility for awards or the institution seeks to change such passing score or no longer offers the approved ability-to-benefit test. This subdivision also sets forth the factors that the Commissioner must consider when determining whether to approve an institution's proposed score or scores, including: (1) the level of curricula the institution offers; (2) the admission criteria and procedures the institution utilizes to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services to ensure that the student can complete the course of study; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study and the institution provides proper instructional and support services; (4) the adequacy of the academic support services the institution provides; and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support services that the student needs to complete the program.

Subdivision (e) of section 145-2.15 requires an institution to independently administer ability-to-benefit tests approved by the Board of Regents.

Paragraph (1) of subdivision (e) of section 145-2.15 provides that an ability-to-benefit test is independently administered if the test is administered at an assessment center that is not located and/or affiliated with the institution for which the student is seeking enrollment and the test administrator is an employee of such center.

Paragraph (2) of subdivision (e) of section 145-2.15 provides that an ability-to-benefit test is independently administered if 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: (1) 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; (2) the test is administered in an environment that is separate, secure, closed and continuously monitored during testing; (3) students are required to provide written verification of identity, such as a photo identification, and to sign in prior to taking the test and students are prohibited from bringing into the test area any materials prohibited by the test publisher and are required to leave the test area immediately upon completion of the test; (4) the test is proctored by professional employees who have been trained in test administration and federal guidelines regarding the administration of ability-to-benefit tests and who are not employed through the admissions, student financial aid, or registrar's offices of the institution; (5) the scoring of such test is overseen by institutional employees who are not employed through the admissions, student financial aid, or registrar's offices and such scores are verified by more than one employee; (6) all tests, test results, and test databases, if any, are kept in locked and secured containers; (7) the test administrator has no prior financial or ownership interest in the institution, its affiliates, or its parent corporation, other than the interest obtained through its agreement to administer the test; (8) the test administrator is not a current or former member of the board of directors, a current or former employee or a consultant to a member of the board of directors or a chief executive officer; (9) the test administrator is not a current or former student of the institution and (10) the test administrator is not scoring the test. The annual certification shall 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.

Paragraph (3) of subdivision (e) of section 145-2.15 states that the department will consider an ability-to-benefit test to be independently administered if the test is administered at an eligible institution that does not have degree-conferring authority and the test is given by a test administrator who: (1) has no current or prior financial or ownership interest in the institution, its affiliates, or its parent corporation, other than the interest obtained through its agreement to administer the test, and has no controlling interest in any other educational institution; (2) is not a current or former employee of or consultant to the institution, its affiliates, or its parent corporation, a person in control of another institution, or a member of the family of any of these individuals; (3) 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, chief executive officer, chief financial officer of the institution or its parent corporation or at any other institution, or a member of the family of any of the above individuals; and (4) is not a current or former student of the institution; (5) is certified by the test publisher to give and score the publisher's test; (6) administers the test in accordance with instructions provided by the test publisher and in a manner that insures the integrity and security of the test; (7) makes the test available only to a test-taker, and then only during a regularly scheduled test; (8) secures the test against disclosure or release; (9) submits the completed test to the test publisher within two business days after test administration in accordance with the test publisher's instructions; and (10) upon request, gives the 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.

Paragraph (4) of subdivision (e) of section 145-2.15 provides that the commissioner will not consider a test to be independently administered if an institution: (1) compromises test security or testing procedures; (2) pays a test administrator a bonus, commission, or other incentive based upon the test scores or pass rates of its students who take the test; or (3) otherwise interferes with the test administrator's independence or test administration.

Paragraph (5) of subdivision (e) of section 145-2.15 requires any institution administering an ability-to-benefit test to maintain a record for each student who sat for an ability-to-benefit test, including the name of the test taken by the student, the date of the test and the student's scores on such tests.

Paragraph (6) of subdivision (e) provides that, upon request, each eligible institution must provide the commissioner with access to test records or other documents related to an audit, investigation or program review of the institution.

Paragraph (7) of subdivision (e) states that 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 center independent of such institution.

Revised rule compared with proposed rule:

Substantial revisions were made in section 145-2.15(e)(2)(v), (3).

Revised rule making(s) were previously published in the State Register on

July 18, 2007.

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

Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Johanna Duncan-Poitier, Senior Deputy Commissioner of Education — P16, Education Department, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, [phone], e-mail: [e-mail]

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on July 18, 2007, the following substantial revisions were made to the proposed rule:

The rule was revised to delete references to student loans to ensure consistency with the legislative intent that the ability-to-benefit provisions of Education Law section 611(4), as amended by section 1 of Part E-1 of Chapter 57 of the Laws of 2007, are intended to apply only to general awards and academic performance awards prescribed under Education Law section 661.

The rule was revised, in response to public comment, to remove section 145-2.15(e)(2)(v) which required each Ability-to Benefit (ATB) test to be administered to all students together.

Section 145-2.15(e)(3) was added, in response to public comment, to establish requirements for eligible non-degree conferring institutions to meet when administering ability-to-benefit tests on campus.

The above revisions to the proposed rule require that the “Needs and Benefits”, “Costs” and “Paperwork” sections of the previously published Regulatory Impact Statement be revised to read as follows:

3. NEEDS AND BENEFITS:

Education Law section 661 sets forth the eligibility requirements and procedures governing awards under the State student financial aid programs established in Education Law Articles 13 and 14. Education Law section 661(4)(d) and (e) establish new requirements for students who do not hold diplomas from high schools located within the U.S., or its recognized equivalent, seeking State financial aid for the first time in the 2007–2008 academic year.

Currently, under the federal Higher Education Act, students seeking to qualify for Pell grants or other federal Title IV aid who do not have a high school diploma or its recognized equivalent must demonstrate the ability to benefit from the education or training provided by achieving a score set by the Secretary of the U.S. Department of Education (“Secretary”) on a test approved by the Secretary.

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary, on an ability-to-benefit test approved by the Secretary. Education Law section 661(4)(e) modifies this requirement. Students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on an ability-to-benefit test approved by the Regents and the test must be independently administered as defined by the Commissioner.

The regulation requires the Regents to publish a list of the federally approved ability-to-benefit tests the Regents identify as satisfactory in determining eligibility for State aid for students without a high school diploma from the U.S., or its recognized equivalent. For the 2007–2008 academic year fall semester, all seven federally approved ability-to-benefit tests may be used. For subsequent academic terms, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Board of Regents identifies as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the Department determines a test is no longer satisfactory in determining eligibility for awards or the Secretary discontinues federal recognition of such test.

Each eligible institution must submit for Regents approval, the passing score it proposes to utilize on any approved ability-to-benefit test, which passing score may not be lower than the federally approved score for such test. For the 2007–2008 academic year fall semester, eligible institutions may utilize any passing score that is not lower than the federally approved score. For subsequent academic terms, in determining whether to approve an institution's proposed passing score, the regulation requires the Regents take into consideration several factors delineated in the regulation. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Regents determine that such passing score is no longer satisfactory in determining eligibility for awards under Education Law section 661.

The regulation also sets forth factors the Department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the 2007–2008 academic year fall semester, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For subsequent academic terms, the regulation provides that an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution for which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible degree-granting institution, the institution's chief executive officer shall provide the Department an annual certification that it independently administers such tests according to the factors delineated in the regulation. If the ability-to-benefit test is administered by an eligible institution that does not grant degrees, the ability-to-benefit test must be administered pursuant to the federal regulations' criteria. If the Department finds an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

4. COSTS:

(a) Costs to State government. The regulation will not impose any additional costs on State government over and above those resulting from the enactment of Chapter 57 of the Laws of 2007.

(b) Costs to local government. The Department believes the regulation will result in minimal costs over and above those resulting from enactment of Chapter 57 of the Laws of 2007.

The regulation may impose negligible costs on institutions eligible to participate in State student financial 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. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to utilize. However, once the institution's passing score(s) is approved by the Regents, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each eligible degree-granting institution would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the regulation's requirements. The majority of the regulation's requirements for the independent administration of such tests duplicate requirements set forth in the federal Higher Education Act and its corresponding federal regulations. Therefore, eligible degree-granting institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed should be minimal.

Since the regulation proposes minimal reporting and recordkeeping requirements, the Department expects existing staff at eligible institutions will have the necessary expertise to satisfy the regulation's requirements as part of their ongoing responsibilities.

Minimal costs may arise in the sponsor contributions to the budgets of community colleges that are subject to approval by the sponsoring local government(s).

(c) Costs to private regulated parties. As stated above under “Costs to local government”, private regulated parties may incur minimal costs to submit an application for approval of the passing score it proposes to utilize and to complete the annual certification required of institutions that wish to administer ability-to-benefit tests on campus.

(d) Costs to the regulatory agency. The regulation may add one time negligible additional responsibilities for the Department to develop a basic application and an annual certification form. The Department will administer the program using existing staff and resources.

6. PAPERWORK:

The regulation requires additional paperwork only for 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. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the Department, in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each eligible degree-granting institution would also be required to have its chief executive officer annually certify to the Department that its administration of the tests meets the requirements set forth in the text of the regulation.

Since the regulation proposes minimal reporting and recordkeeping requirements, the Department expects existing staff at eligible institutions will have the necessary expertise to satisfy the regulation's requirements as part of their ongoing responsibilities.

In addition, it has been determined that the “Statutory Authority” section should be revised to add the following reference to Education Law section 215:

“Education Law section 215 provides that the Regents, or the Commissioner, or their representatives, may visit, examine into and inspect, any institution in the University of the State of New York and any school or institution under the educational supervision of the State, and may require, as often as desired, duly verified reports giving such information and in such form as they shall prescribe.”

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on July 18, 2007, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.

The revisions to the proposed rule require that the “Compliance Requirements” and “Compliance Costs” sections for small businesses and local governments of the previously published Regulatory Flexibility Analysis be revised to read as follows:

2. COMPLIANCE REQUIREMENTS:

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary of the U.S. Department of Education (“Secretary”), on an ability-to-benefit test approved by the Secretary. Education Law section 661(4)(e) modifies this requirement. Students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on a federally approved ability-to-benefit test identified by the Regents as satisfactory in determining eligibility for awards and the test must be independently administered as defined by the Commissioner.

The regulation requires the Regents to publish a list of the federally approved ability-to-benefit tests that the Regents identify as satisfactory in determining eligibility for State aid for students without a high school diploma from the U.S., or its recognized equivalent. For the fall semester of the 2007–2008 academic year, all seven federally approved ability-to-benefit tests may be used. For subsequent academic terms, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Regents identify as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the Department determines that a test is no longer satisfactory in determining eligibility for awards or the Secretary discontinues federal recognition of such test.

The regulation requires each eligible institution to submit for approval by the Board of Regents, the passing score it proposes to utilize on any approved ability-to-benefit test, however, the passing score may not be lower than the federally approved score for such test. For the fall semester of the 2007–2008 academic term, eligible institutions may utilize any passing score that is not lower than the federally approved score. For subsequent academic terms, in determining whether to approve an institution's proposed passing score, the regulation requires the Regents take into consideration the following factors: (1) the curricula the institution offers; (2) the admission criteria and procedures the institution uses to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services that the student needs to complete the program; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study; (4) the adequacy of the academic support services the institution provides; and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support that the student needs to complete the program. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Regents determines that such passing score is no longer satisfactory in determining eligibility for awards under Education Law section 661.

The regulation also establishes factors the Department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the fall semester of the 2007–2008 academic year, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For subsequent academic terms, the regulation provides an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution at which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible degree-granting institution, the chief executive officer of such institution shall provide an annual certification to the Department that it independently administers such tests according to the factors delineated in the regulation. If the ability-to-benefit test is administered by an eligible institution that does not grant degrees, the ability-to-benefit test must be administered pursuant to the criteria set forth in the federal regulations. If the Department finds that an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

4. COMPLIANCE COSTS:

The regulation may impose negligible costs on 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. Each such institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the Department in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. However, once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, eligible degree-granting institutions would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the requirements set forth in the text of the regulation. The majority of the regulation's requirements for the independent administration of such tests duplicate requirements set forth in the federal Higher Education Act and its corresponding federal regulations. Therefore, eligible institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed by this regulation should be minimal.

Since the regulation proposes minimal reporting and recordkeeping requirements, the Department expects existing staff at eligible institutions will have the necessary expertise to satisfy the regulation's requirements as part of their ongoing responsibilities.

Minimal costs may arise in the sponsor contributions to the budgets of community colleges that are subject to approval by the sponsoring local government(s).

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on July 18, 2007, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.

The above revisions to the proposed rule require that the “Reporting, Recordkeeping and other Compliance Requirements and Professional Services” and the “Costs” sections of the previously published Rural Area Flexibility Analysis be revised to read as follows:

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

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary of the U.S. Department of Education (“Secretary”), on an ability-to-benefit test approved by the Secretary. Education Law section 661(4)(e) modifies this requirement. Students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on a federally approved ability-to-benefit test identified by the Regents as satisfactory in determining eligibility for awards and the test must be independently administered, as defined by the Commissioner.

The regulation requires the Regents to publish a list of the federally approved ability-to-benefit tests that the Regents identify as satisfactory in determining eligibility for State aid for students without a high school diploma from the U.S., or its recognized equivalent. For the fall semester of the 2007–2008 academic year, all seven federally approved ability-to-benefit tests may be utilized. For subsequent academic terms, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Regents identify as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the Department determines that a test is no longer satisfactory in determining eligibility for awards or the Secretary discontinues federal recognition of such test.

The regulation requires each eligible institution to submit for approval by the Board of Regents, the passing score it proposes to utilize on any approved ability-to-benefit test, however, the passing score may not be lower than the federally approved score for such test. However, for the fall semester of the 2007–2008 academic term, eligible institutions may utilize any passing score that is not lower than the federally approved score. For subsequent academic terms, in determining whether to approve an institution's proposed passing score, the regulation requires the Regents take into consideration the following factors; (1) the curricula the institution offers; (2) the admission criteria and procedures the institution uses to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services that the student needs to complete the program; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study; (4) the adequacy of the academic support services the institution provides and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support that the student needs to complete the program. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Board of Regents determines that such passing score is no longer satisfactory in determining eligibility for awards under Education Law section 661.

The regulation also establishes factors the Department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the fall semester of the 2007–2008 academic year, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For subsequent academic terms, the regulation provides an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution for which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible degree-granting institution, the chief executive officer of such institution shall provide an annual certification to the Department that it independently administers such tests according to the factors delineated in the regulation. If the ability-to-benefit test is administered by an eligible institution that does not grant degrees, the ability-to-benefit test must be administered pursuant to the criteria set forth in the federal regulations. If the Department finds that an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

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

3. COSTS:

The regulation may impose negligible costs on 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 located in rural areas. Each such institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the Department in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. However, once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each eligible degree-granting institution would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the requirements set forth in the text of the regulation. The majority of the regulation's requirements for the independent administration of such tests duplicate the requirements set forth in the federal Higher Education Act and its corresponding regulations. Therefore, eligible degree-granting institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed by this regulation should be minimal.

Since the regulation proposes minimal reporting and recordkeeping requirements, the Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the regulation's requirements as part of their ongoing responsibilities.

Minimal costs may arise in the sponsor contributions to the budgets of community colleges that are subject to approval by the sponsoring local government(s).

Job Impact Statement

Since publication of the Notice of Emergency Adoption and Revised Rule Making in the State Register on July 18, 2007, the proposed regulation was revised as set forth in the Statement Concerning the Regulatory Impact Statement filed herewith.

The proposed regulation, as so revised, relates to the administration of ability-to-benefit tests for eligibility for awards pursuant to Education Law section 661. The revised regulation will not have a substantial adverse impact on job or employment opportunities. Because it is evident from the nature of the revised regulation that it will have no impact on jobs or employment opportunities, no further measures were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Assessment of Public Comment

A Notice of Proposed Rule Making was published in the State Register on June 27, 2007 and a Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2007. Below is a summary of written comments received by the State Education Department (SED) and SED's assessment of issues raised.

1. COMMENT: The proposed rule would prevent eligible nondegree institutions from administering ability-to-benefit (ATB) tests on school premises. The rule should be amended to permit such schools to continue to use the federally approved process for testing ATB students.

DEPARTMENT RESPONSE: SED agrees with this comment and has revised the proposed rule to allow eligible nondegree schools to administer ATB tests on school premises so long as such schools comply with the prescribed federal requirements for the independent administration of ATB tests.

2. COMMENT: The proposed rule prohibits an eligible degree-granting institution from using its own employees to administer ATB tests. The rule should be amended to allow such institutions to use their own employees when administering ATB tests.

DEPARTMENT RESPONSE: SED agrees that eligible degree-granting institutions should be able to use their own employees to administer ATB tests. As a result, the proposed rule was revised to remove the provision that prohibited such institutions from using their own employees to administer ATB tests. A Notice of Emergency Adoption and Revised Rule Making, with the revised language, was published in the State Register on July 18, 2007.

3. COMMENT: The proposed rule prohibits an eligible degree-granting institution from employing a former student to administer ATB tests. While institutions should not be allowed to use current students to administer ATB tests, the rule should be amended to permit such institutions to use former students in that capacity.

DEPARTMENT RESPONSE: The prohibition of the use of former students in the administration of ATB tests is similar to a prohibition in the Federal government's requirements for the independent administration of ATB tests on campus. SED believes that consistency should be maintained between the State and federal requirements.

4. COMMENT: One commenter sought clarification on subparagraph (v) of paragraph (2) of section 145-2.15 which reads:

“each test used for ability to benefit purposes is administered to all students together and the test administrator is unaware which students are taking the test for ability to benefit purposes until after the test is completed and scored.”

The commenter expressed concern that this provision implies that all students (including high school graduates) would be required to take the ATB test in order for ATB students to remain unidentified. The commenter stated that at their community college, they administer Accuplacer tests and have established “branching profiles” in order to administer the appropriate tests to the appropriate population. When students seek to enroll under the “Ability to Benefit” program, they are administered tests under the ATB branching profile (Reading Comprehension, Sentence Skills, and Arithmetic). In contrast, students who have a high school diploma or GED are administered tests under the “basic skills” profile (Reading Comprehension and Sentence Skills) as well as any other tests that may be necessary for their particular major. The commenter indicated that the new regulation would require that all students (both those with high school diplomas/GEDs and ATBs) take the Arithmetic test and that this change would have significant budgetary and logistical implications for their institution.

DEPARTMENT RESPONSE: The original purpose of this requirement was to ensure that students would not be set apart if they were being tested for ATB purposes or placement purposes. However, the Department has recently been advised by several colleges that some ATB tests are used differently by colleges for ATB students and students with a high school diploma for academic reasons. The Department agrees that setting these tests apart for academic reasons seems to make sense. Therefore, the proposed rule has been revised to remove the provision that requires each ATB test to be administered to all students together.

5. COMMENT: The regulation should not include the percentage of first-time students enrolling in noncredit remedial courses as a measure of the adequacy of an institution's academic support services. That metric is a reflection of an institution's student population, rather than a measure of the effectiveness of an institution's support services.

DEPARTMENT RESPONSE: The metric helps to describe the nature of an institution and is one element among many that the Department will weigh to determine the adequacy of academic support services and, more broadly, the appropriateness of the proposed ATB test scores.

6. COMMENT: The list of measures of evidence of the adequacy of an institution's academic support services concludes with the statement that the measures may include “such other information as the commissioner shall specify …” That phrase is too broad in scope to provide clear guidance to institutions.

DEPARTMENT RESPONSE: The regulation allows for flexibility, as information needs evolve, to support the Department's efforts to ensure the quality of higher education and the sound use of public financial aid monies. The Department will provide guidance documents to the field as needed to inform the implementation of the regulation.