Meeting of the Board of Regents | September 2007
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THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234 |
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TO: |
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FROM: |
Johanna Duncan-Poitier |
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SUBJECT: |
Proposed Amendment to the Regulations of the Commissioner of Education Relating to the Administration of Ability-to-Benefit Tests for Eligibility for Awards
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DATE: |
August 29, 2007 |
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STRATEGIC GOAL: |
Goals 2 and 4 |
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AUTHORIZATION(S): |
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SUMMARY
Issue for Decision
Should the Board of Regents adopt as a second emergency action the proposed addition of §145-2.15 to the Regulations of the Commissioner of Education relating to the administration of ability-to-benefit tests for eligibility for awards?
Reason(s) for Consideration
Required by State statute.
Proposed Handling
The proposed amendment was adopted as an emergency rule at the June Regents meeting. A second emergency action at the September Regents meeting is needed to adopt revisions in response to public comment and to otherwise ensure that the emergency rule remains continuously in effect until the effective date of its adoption as a permanent rule. It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the October Regents meeting.
Procedural History
A Notice of Proposed Rule Making was published in the State Register on June 27, 2007. At the June Regents meeting, the Board substantially revised the proposed regulation from the version published in the State Register and adopted the revised regulation as an emergency rule, effective July 1, 2007. A Notice of Emergency Adoption and Revised Rule Making was published in the July 18, 2007 State Register. The Department subsequently made further revisions to the proposed regulation in response to public comment. A second Notice of Revised Rule Making will appear in the State Register on September 5, 2007.
Pursuant to the State Administrative Procedure Act §202(4-a), a revised rule cannot be adopted by regular (non-emergency) action until at least 30 days after publication of the revised rule in the State Register. The earliest the Board can adopt the proposed regulation by regular action, after expiration of the 30-day public comment period for a revised rule making, is the October Regents meeting. However, the June emergency action will expire on September 26, 2007 (90 days after its filing with the Department of State on June 29, 2007). A lapse in the regulation's effectiveness would disrupt implementation of §661 of the Education Law, as amended by Chapter 57 of the Laws of 2007, thereby prohibiting eligible students who do not hold a diploma from a high school located in the United States, or its recognized equivalent, to apply for State student financial aid in a timely manner for the 2007-08 academic year.
Background Information
The proposed §145-2.15 differs from the one approved in June in the following ways: (1) References to loans were removed 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. (2) A provision was added authorizing eligible nondegree schools to administer ability-to-benefit (ATB) tests in accordance with federal standards. (3) The requirement that degree-granting institutions administer ATB tests to all students together, with the administrator unaware of which students were taking the test for ATB purposes was eliminated because several community colleges indicated that they used tests differently, depending on whether a student is an ATB student or a high school graduate being placed into specific courses. A summary of the provisions of the proposed §145-2.15 follows.
Subdivision (a) of §145-2.15 sets forth the section’s applicability: identification of certain ATB tests by the Regents and approval of the passing scores for such tests and the criteria the Commissioner shall use when determining whether an approved ability-to-benefit test is independently administered. Subdivision (b) defines 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) provides that students first receiving aid in 2007-08 and thereafter shall have a certificate of graduation from a recognized school providing secondary education in the United States, or its recognized equivalent, or receive a passing score on a federally approved ATB test that the Regents have identified and has been independently administered and evaluated, as defined by the Commissioner. Paragraph (2) requires the Department to publish a list of the identified tests. Identification shall be without term unless the Department determines that a test is no longer satisfactory in determining eligibility for awards or the U.S Secretary of Education discontinues its federal recognition.
A separate item on the Board’s agenda proposes action by the Board to identify several specific ATB tests.
Subdivision (d) requires an eligible institution to submit for the Regents approval the passing score it proposes to use on any identified ATB test, in a form prescribed by the Commissioner. The score may not be lower than the score set by the Secretary and the eligible institution shall submit an explanation of its reasons for selecting it. Approval of the score shall be without term unless the Department determines that it is no longer satisfactory in determining eligibility for awards or the institution seeks to change such passing score or no longer offers the test. Subdivision (d) also sets forth the factors the Commissioner must consider when determining whether to recommend to the Board approval of an institution’s proposed score or scores, including: (1) the level of curricula offered; (2) the admission criteria and procedures it uses to evaluate a student’s capacity to undertake a course of study and the institution’s capacity to provide instructional and other support services to ensure that the student can complete the course of study; (3) evidence that the institution’s admission criteria and procedures are effective in admitting only persons who have the capacity to undertake a course of study and that it provides proper instructional and support services; (4) the adequacy of the academic support services it provides; and (5) evidence that it 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) requires an institution to independently administer identified ATB tests. Paragraph (1) provides that a test is independently administered if it 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) provides that an ATB test is independently administered if it is administered at an institution that confers two-year or four-year degrees, or a nondegree institution that qualifies as an eligible public vocational institution, and the chief executive officer certifies annually, in a form prescribed by the Commissioner, that: (i) the test is administered by a unit of the institution that is responsible for other forms of testing or for provision of academic support services, or both, and that such unit does not report to officers responsible for admissions or the administration of student financial aid; (ii) the test is administered in an environment that is separate, secure, closed and continuously monitored during testing; (iii) students are required to provide written verification of identity, such as a photo identification, and to sign in prior to taking the test, 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; (iv) the test is proctored by professional employees trained in test administration and federal guidelines for administration of ATB tests and who are not employed through the admissions, student financial aid, or registrar’s offices; (v) 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; (vi) all tests, test results, and test databases, if any, are kept in locked and secured containers; (vii) 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; (viii) 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; (ix) the test administrator is not a current or former student of the institution; and (x) the test administrator is not scoring the test. The annual certification also 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 ATB 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) states that the Department will consider an ATB test to be independently administered if it is administered at an eligible nondegree institution and the test is given by a test administrator who: (i) 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; (ii) 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; (iii) 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 those individuals; (iv) is not a current or former student of the institution; (v) is certified by the test publisher to give and score its test; (vi) administers the test in accordance with the test publisher’s instructions and in a way that insures the test’s integrity and security; (vii) makes the test available only to a test-taker, and then only during a regularly scheduled test; (viii) secures the test against disclosure or release; (ix) submits the completed test to the test publisher within two business days after test administration in accordance with the test publisher’s instructions; and (x) on 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) provides that the Commissioner will not consider a test to be independently administered if an institution: (i) compromises test security or testing procedures; (ii) 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 (iii) otherwise interferes with the test administrator’s independence or test administration. Paragraph (5) requires an institution administering an ATB test to maintain a record for each student who sat for such a test, including the name of the test, the test date, and the student’s scores. Paragraph (6) provides that, on 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) states that the Commissioner may require an eligible institution to use an assessment center independent of the institution if the Commissioner finds that the institution has violated the certification procedures or the ability-to-benefit test procedures.
Recommendation
I recommend that the Board of Regents take the following action:
VOTED: That section 145-2.15 be added to the Regulations of the Commissioner of Education, as submitted, effective September 27, 2007, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare to adopt revisions to the rule in response to public comment and to otherwise ensure that the emergency rule adopted at the June Regents meeting, and revised at the September Regents meeting, remains continuously in effect until the effective date of its adoption as a permanent rule.
Timetable for Implementation
The proposed amendment was adopted as an emergency measure at the June Regents meeting, effective July 1, 2007. It is anticipated that the proposed regulation will be presented for adoption as a permanent rule at the Board’s October meeting, which is the first scheduled meeting after expiration of the 30-day public comment period prescribed by the State Administrative Procedure Act.
PROPOSED ADDITION OF SECTION 145-2.15 TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 215 AND 661 OF THE EDUCATION LAW AND CHAPTER 57 OF THE LAWS OF 2007 RELATING TO THE ADMINISTRATION OF ABILITY-TO-BENEFIT TESTS FOR ELIGIBILITY FOR AWARDS
STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION
The proposed rule is necessary to implement paragraphs (d) and (e) of subdivision (4) of Section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, to identify certain ability-to-benefit tests and the passing scores for such tests that the Board of Regents approves as an alternative to a certificate of graduation from a school providing secondary education or its recognized equivalent, for purposes of eligibility for general awards and academic performance awards prescribed under Section 661 of the Education Law. The proposed rule also establishes the criteria the Commissioner will utilize to determine if an approved ability-to-benefit test has been independently administered.
A Notice of Proposed Rule Making was published in the State Register on June 27, 2007. At their June 25-26, 2007 meeting, the Regents substantially revised the proposed rule, and adopted the revised rule as an emergency measure, effective July 1, 2007, in order to permit eligible students who do not hold a diploma from a high school located in the United States, or its recognized equivalent to apply for State student financial aid in a timely manner for the 2007-2008 academic year. A Notice of Emergency Adoption and Revised Rule Making was published in the July 18, 2007 State Register.
Subsequently, further revisions were made to the proposed rule in response to public comment and a second Notice of Revised Rule Making was published in the State Register on September 5, 2007. Pursuant to the State Administrative Procedure Act section 202(4-a), the revised rule cannot be adopted by regular (non-emergency) action until at least 30 days after publication of the revised rule in the State Register. Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be adopted by regular action, after expiration of the 30-day public comment period for a revised rule making, is the October 22-23, 2007 Regents meeting. However, the June emergency action will expire on September 26, 2007, 90 days after its filing with the Department of State on June 29, 2007. A lapse in the rule's effectiveness would disrupt implementation of the Section 661 of the Education Law, as amended by Chapter 57 of the Laws of 2007; thereby prohibiting eligible students who do not hold a diploma from a high school located in the United States, or its recognized equivalent to apply for State student financial aid in a timely manner for the 2007-2008 academic year.
A second emergency adoption is therefore necessary for the preservation of the general welfare to adopt revisions to the rule in response to public comment and to otherwise ensure that the emergency rule adopted at the June Regents meeting, and revised at the September Regents meeting, remains continuously in effect until the effective date of its adoption as a permanent rule.
It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the October meeting of the Board of Regents, which is the first scheduled meeting after expiration of the 30-day public comment period prescribed by the State Administrative Procedure Act.
AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant to sections 207, 215 and 661 of the Education Law and Chapter 57 of the Laws of 2007.
Section 145-2.15 of the Regulations of the Commissioner of Education is added, effective September 27, 2007, as follows:
§145-2.15. Administration of ability-to-benefit tests for purposes of eligibility for awards.
(a) Applicability. To the extent authorized by Chapter 57 of the Laws of 2007 and section 661 of the Education Law, this section identifies certain ability-to-benefit tests approved by the Board of Regents and the passing scores for such tests, for purposes of eligibility for general awards and academic performance awards prescribed under section 661 of the Education Law. This section also establishes the criteria the commissioner will utilize to determine whether an approved ability-to-benefit test is independently administered and evaluated. Such requirements shall be applicable to students who first receive aid pursuant to section 661 of the Education Law in academic year 2007-2008 and each academic year thereafter.
(b) Definitions. For purposes of this section:
(1) Assessment center means a center that:
(i) is not located at and/or affiliated with an eligible institution as defined in this subdivision; or
(ii) is located at an eligible institution if the following requirements are met:
(a) the center is responsible for gathering and evaluating the information about individual students for multiple purposes, including appropriate course placement;
(b) the center is independent of the admissions and financial aid processes at the institution in which it is located;
(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 not employed through the admissions, student financial aid, or registrar’s offices of the institution; and
(d) the center does not have as its primary purpose the administration of ability-to-benefit tests.
(2) Federally approved ability-to-benefit test means an ability-to-benefit test approved by the Secretary for federal financial aid purposes.
(3) School providing secondary education from a state within the United States means a school authorized, recognized or approved by a State of the Union, American Samoa, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau.
(4) Secretary means the Secretary of the United States Department of Education or any official or employee of the Department acting for the Secretary under a delegation of authority.
(c) Ability-to-benefit tests approved by the Board of Regents for eligibility for awards under section 661 of the Education Law.
(1) For students first receiving aid pursuant to Section 661 of the Education Law 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, as defined by the commissioner in subdivision (e) of this section.
(2) For purposes of eligibility for awards 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 academic 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) the level of curricula the institution offers, as provided in section 52.2(c) of this title;
(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, as is required by section 52.2(d)(2) of this Title;
(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 that the institution provides proper instructional and support services;
(4) the adequacy of the academic support services the institution provides under section 52.2(f)(2) of this Title, which shall be evidenced by the institution’s record in promoting successful student outcomes; the percentage of first-time students enrolling in noncredit remedial courses; the percentage of first-time students returning at the beginning of the next academic year; the percentage of first-time students earning an associate degree within three years or a baccalaureate degree within six years from the date they entered the institution and such other information as the commissioner shall specify; 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 and that the institution uses the evaluation to improve those services and to modify its admission criteria and procedures.
(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 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) 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) 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) the test is administered in an environment that is separate, secure, closed and continuously monitored during testing;
(iii) 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;
(iv) 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;
(v) the scoring of ability-to-benefit tests 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;
(vi) all tests, test results, and test databases, if any, are kept in locked and secure containers;
(vii) 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;
(viii) 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;
(ix) the test administrator is not a current or former student of the institution;
(x) the test administrator is not scoring the test; and
(xi) 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.
(3) 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) is not a current or former student of the institution;
(v) is certified by the test publisher to give and score the publisher’s test;
(vi) 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;
(vii) makes the test available only to a test-taker, and then only during a regularly scheduled test;
(viii) secures the test against disclosure or release;
(ix) submits the completed test to the test publisher within two business days after test administration in accordance with the test publisher’s instructions; and
(x) 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.
(4) The commissioner will not consider a test independently administered if an institution:
(i) compromises test security or testing procedures;
(ii) pays a test administrator a bonus, commission, or any other incentive based upon the test scores or pass rates of its students who take the test; or
(iii) otherwise interferes with the test administrator’s independence or test administration.
(5) 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.
(6) 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) 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.
PROPOSED ADDITION OF SECTION 145-2.15 TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 215 AND 661 OF THE EDUCATION LAW AND CHAPTER 57 OF THE LAWS OF 2007 RELATING TO THE ADMINISTRATION OF ABILITY-TO-BENEFIT TESTS FOR ELIGIBILITY FOR AWARDS
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.