Meeting of the Board of Regents | February 2009

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	Higher Education Committee
FROM:	Johanna Duncan-Poitier
SUBJECT:	Proposed Amendment of §145-2.15 of the Regulations of the Commissioner of Education Relating to the Administration of Ability-to-Benefit Tests for Purposes of Eligibility for Awards of Student Aid
DATE:	February 27, 2009
STRATEGIC GOAL:	Goals 2 and 4
AUTHORIZATION(S):

SUMMARY

Issue for Discussion (Consent Agenda)

Should the Board of Regents amend §145-2.15 of the Regulations of the Commissioner of Education, relating to the administration of ability-to-benefit tests for purposes of eligibility for awards of student aid?

Reason(s) for Consideration

Review of Policy.

Proposed Handling

This matter will come before the Higher Education Committee for adoption at its March 2009 Meeting.  Supporting materials are available on request from the Secretary to the Board of Regents.

Procedural History

At their January 2009 meeting, the Board of Regents discussed proposed amendments to §145-2.15 of the Commissioner’s regulations.   A Notice of Proposed Rule Making was published in the State Register on December 31, 2008. 

Background Information

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

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

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

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

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

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

Recommendation

Staff recommends that the Regents take the following action:

VOTED:  That section 145-2.15 of the Regulations of the Commissioner of Education be amended as submitted, effective April 9, 2009. 

Timetable for Implementation

If adopted at the March 2009 Regents meeting, the effective date of the amendment would be April 9, 2009.

Attachment

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 207 and 661 of the Education Law. 

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

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

(a)  .  .  .

(b)  Definitions. For purposes of this section:

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

(i)  .  .  .

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

(a)  .  .  .

(b)  .  .  .

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

(d)  .  .  .

(2)  .  .  .

(3)  .  .  .

(4)  .  .  .

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

(1)  .  .  .

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

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

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

(1)  .  .  .

(2)  .  .  .

(3)  .  .  .

(4)  .  .  .

(5)  .  .  .

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

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

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

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

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

[(ii)] (b)  .  .  .

[(iii)] (c)  .  .  .

[(iv)] (d)  .  .  .

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

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

[(vii)]  (g)  .  .  .

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

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

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

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

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

[i] (a)  .  .  .

[ii] (b)  .  .  .

[iii](c)  .  .  .

[iv](d)  .  .  .

[v](e)  .  .  .

[vi] (f)  .  .  .

[vii] (g)  .  .  .

[(viii)] (h)  .  .  .

[(ix)] (i)  .  .  .

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

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

(i)  .  .  .

(ii)  .  .  .

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

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

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

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