Meeting of the Board of Regents | June 2007

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

 

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Proposed Amendment to the Regulations of the Commissioner of Education Relating to the Administration of Ability-to-Benefit Tests for Eligibility for Awards and Loans
DATE:	June 13, 2007
STRATEGIC GOAL:	Goals 2 and 4
AUTHORIZATION(S):

 

SUMMARY

 

Issue for Decision

 

Should the Board of Regents add 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 and loans? 

 

Reason(s) for Consideration

             

              Required by State Statute.

             

Proposed Handling

 

Paragraphs (d) and (e) of subdivision (4) of Section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, becomes effective on July 1, 2007.  Because of this timing, the proposed amendment is submitted for adoption as an emergency measure at the June 2007 meeting.  Confirmation of the proposed amendment as a permanent rule is scheduled for the September 2007 Regents meeting.      

 

Procedural History

 

A Notice of Proposed Rule Making will be published in the State Register on June 27, 2007.  A Notice of Emergency Adoption will be published on June 29, 2007.  Supporting materials for the proposed amendment are available upon request from the Board of Regents.

 

Background Information

 

1. “ATB Students”. The 2004 Statewide Plan for Higher Education identifies as two of its priorities “High Educational Quality” (Priority A1) and “Affordability” (Priority A3).  In May 2006, the Board of Regents endorsed groundbreaking recommendations included in the report on Proprietary Colleges in New York State.  In December 2006, the Board of Regents adopted Section 3.58 of the Rules of the Board of Regents regarding degree powers for proprietary institutions in order to implement two of these recommendations which relate to the transfer of degree conferring authority through the sale of a for-profit institution and more rigorous requirements to authorize new proprietary colleges in New York State to ensure that students get the education to which they are entitled.  The Department and the field continue to work on implementing the remaining recommendations related to college admission standards and clearly defining remedial and developmental coursework.

 

Financial assistance for college students who enroll without a high school diploma.

 

Under the federal Higher Education Act, students seeking to qualify for Pell grants or other Title IV aid who do not have a high school diploma must demonstrate an ability to benefit from education or training provided by achieving a passing score, as identified by the Secretary of the United States Department of Education (“Secretary”), on an ability-to-benefit test approved by the Secretary.  At this time, there are seven ability-to-benefit tests approved by the Secretary:

 

• Accuplacer
• ASSET Program/Compass
• Career Programs Assessment (CPAt)
• Combined English Language Skills Assessment (CELSA)
• Descriptive Tests of Language Skills (DTLS) and Descriptive Tests of Mathematical Skills (DTMS)
• Wonderlic Basic Skills Test
• WorkKeys Program

 

The Department estimates that approximately 22 SUNY campuses and community colleges; 15 independent colleges and universities and at least 17 proprietary colleges utilize one of the seven identified tests in either their admission process, in student aid decisions or for placement of students.   

 

Prior to the 2007-2008 academic year, any student applying for TAP or other State student financial aid who did not have a high school diploma or its equivalent from the United States was required to achieve a passing score as set by the Secretary of Education, on one of these seven ability-to-benefit tests.  Chapter 57 of the Laws of 2007 (Article VII) modifies this requirement. 

 

 

 

 

 

New requirement in Chapter 57 of the Laws of 2007 (Article VII)

 

Effective July 1, 2007, for students first receiving aid pursuant to Section 661 of the Education Law (e.g., Tuition Assistance Program [TAP] awards) in the 2007-2008 academic year and each academic year thereafter, students shall have a high school diploma or its equivalent from the United States, or receive a passing score on a federally approved ability-to-benefit test identified by the Board of Regents as satisfying the eligibility requirements and the test must be independently administered and evaluated, as defined by the Commissioner. 

 

Section 661(4)(e) of the Education Law, as added, and the proposed regulation do not affect the admission of students to institutions, their placement into particular courses, or their eligibility for federal Title IV student aid, or the continued eligibility for students receiving State financial aid prior to the 2007-2008 academic year.  The proposed amendment only applies to eligibility for TAP and other State student aid programs for students first applying in the 2007-2008 academic year or thereafter.

 

2. Development of Proposed Policy and Regulation.  To assist in developing the regulations to implement the requirements of Chapter 57 of the Laws of 2007 (Article VII), the Department convened a work group that was comprised of persons knowledgeable about student financial aid and academic affairs from all four sectors of higher education.  The work group met on April 11, 2007 and was composed of the following members:

 

The City University of New York, Central Administration:

• University Dean for the Central Office and Enrollment Management
• Acting Associate University Dean for Enrollment Management
• University Dean for Institutional Research and Assessment

 

StateUniversity of New York, System Administration:

• Vice Chancellor for Community Colleges
• Assistant Vice Chancellor for Community Colleges
• Assistant Vice Chancellor for Financial Aid

 

IndependentCollegesand Universities:

• Vice President, Academic Affairs, The College of New Rochelle
• Vice President, Undergraduate Education, Touro College
• Provost, Clarkson University
• Vice President, Research and State and Local Relations, Commission on Independent Colleges and Universities

 

Proprietary Colleges:

• Assistant Vice President for Governmental Affairs, Monroe College
• Provost, Plaza College
• President, Association of Proprietary Colleges

 

New York State Higher Education Services Corporation:

• Assistant Vice President, Financial Aid Services – G&S Administration

 

Appendix A is a summary of the written advice from the working group and others.

 

3. Provisions of the Proposed Regulation.  The proposed regulation is intended to provide institutions with sufficient flexibility to align their college admission requirements (including the pass point on the ATB test) with the level of the academic program and the level of academic support the institution will provide to students without a high school credential. Instead of creating arbitrary pass points, the regulation seeks to retain college admissions as an academic endeavor for college administrators and faculty.  The proposed regulation establishes a procedure by which the Department will notify institutions of the federally approved ability-to-benefit tests identified by the Board of Regents as acceptable for purposes of eligibility for awards and loans. 

 

The proposed amendment requires eligible institutions to submit, for approval by the Board of Regents, the passing score it proposes to utilize for each approved ability-to-benefit test administered by such institution with an explanation of its reasons for selecting such passing score and any other information the Board of Regents may require.  In addition, the proposed amendment establishes the criteria that must be met by an institution in order for the administration of ability-to-benefit tests to be considered “independently administered and evaluated.” 

 

a. Identification of Tests: For the fall semester of the academic year 2007-2008, all seven federally approved ability-to-benefit tests may be used.  For academic terms subsequent to the fall semester of academic year 2007-2008, the Department will publish a list of all federally approved ability-to-benefit tests that the Board of Regents approves as acceptable to determine eligibility for State financial aid for students without a U.S. high school diploma or the recognized equivalent.  Once identified, such tests shall be approved without term unless the department determines that a test is no longer satisfactory in determining eligibility for awards and loans under Section 661 of the Education Law.

 

b. Passing Scores: For the fall semester of the 2007-2008 academic year, eligible institutions may utilize any score that is at least as high as the federally approved passing score for that particular ability-to-benefit test.  For academic terms subsequent to the fall semester of 2007, each eligible institution shall submit the score or scores it proposes to utilize for each approved ability-to-benefit test the institution offers.  In determining whether to approve such score, the Board of Regents will take into consideration the following factors:

 

• the level of curricula the institution offers, as provided for in the standards for program registration, which can be found in Section 52.2(c) of the Regulations of the Commissioner of Education;

 

• 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 the Regulations of the Commissioner of Education;

 

• 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;

 

• the adequacy of the academic support services the institution provides, as required by Section 52.2(f)(2) of the Regulations of the Commissioner of Education; and

 

• 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 utilizes such evaluation to improve those services and to modify its admission criteria and procedures. 

 

Once approved, an institution’s passing score(s) will remain approved unless the institution proposes to change such scores or the Board of Regents determines that such passing score is no longer satisfactory in determining eligibility for awards and loans under Section 661 of the Education Law.

 

              c. Independent Administration of ATB Tests: For the fall semester of the 2007-2008 academic year, an ability-to-benefit test will be deemed independently administered if the administration of such test meets the criteria for independent administration set forth in federal regulations.  For academic terms subsequent to the fall semester of the 2007-2008 academic year, the department will consider an ability-to-benefit test to be independently administered if the test is administered by an assessment center 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.  An ATB test may also be considered to be independently administered at an eligible institution if it meets certain requirements set forth in the regulation and the institution’s Chief Executive Officer annually submits to the Department an attestation certifying such standards.  The proposed amendment also provides that 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.  Emergency Action:  The recommended action is proposed as an emergency measure because it is necessary for the preservation of the general welfare in order to establish necessary regulatory standards to implement on a timely basis the requirements of Section 661(4)(d) and (e) of the Education Law, as added by Chapter 57 of the Laws of 2007.

 

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 July 1, 2007, as an emergency action upon a finding by the Board of Regents that such action is necessary to preserve the general welfare to establish regulatory standards and procedures in order to implement the requirements of Section 661(4)(d)(e) of the Education Law, as added by Chapter 57 of the Laws of 2007, establishing procedures for the identification by the Board of Regents of acceptable federally approved ability-to-benefit tests and the passing scores for such tests, and the criteria that the Department will utilize to determine if a test has been independently administered. 

 

Timetable for Implementation

 

The emergency adoption will take effect on July 1, 2007, which is the effective date of Section 661(4)(d)(e), as added by Chapter 57 of the Laws of 2007.

 

Attachment

Public Sector	SUNY	CUNY
145-2.15 (b) Recognition of federally approved ability-to-benefit tests	Colleges should be allowed to continue to operate under existing academic policy as established by the faculty and as it governs the admission and placement of students.	[OHE] should review the tests currently approved for ATB purposes under federal regulation and narrow the list for TAP purposes to those that have been designed specifically to assess college readiness in reading, writing and mathematics.
145-2.15 (b) Satisfactory passing score	The state should not establish a pass point requirement for eligibility for state financial aid as a quality control. However, if eligibility for TAP is to be contingent on performance on the ATB… the federal pass points should be adopted as well for eligibility for state financial aid to ensure consistency, fairness and continued ACCESS.	In the near term, SED should continue to use the federal ATB standards set by the publishers of those assessments… Over time, however, the Department should re-evaluate these cut points using data reflecting the experience of students entering institutions of higher education in New York State.
145-2.15 (c) Independent administration and evaluation of ability-to-benefit tests	The existing practices of the community colleges … should be allowed to satisfy the requirements for independent administration of the ATB, where the unit that administers the test is … independent of the admissions, financial aid and registration functions …	The Department should establish guidelines for the independence of test administration that do not require students or prospective students to test off campus… The independence of on-campus testing centers can be achieved with guidelines from the Department.

 

 

Independent Sector	Clarkson University	College of New Rochelle	Touro College
145-2.15 (b) Recognition of federally approved ability-to-benefit tests	We don’t have a particular test/provider preference … and would be amenable to another(s) if deemed appropriate by NYSED. [currently use ASSET]	In the short term… support proposal that we proceed status quo for the Fall of 2007 and … use the time to proceed thoughtfully.	In choosing ATB tests from among those recognized as meeting the Federal standard, SED should recognize that the purpose of an ATB option is primarily to provide access for those motivated students who were previously failures of the K-12 system, but now … seek the opportunity for higher education… We would advocate the inclusion on the State list of at least one paper-and-pencil exam as an alternative to computer-based exams… Some ESL-sensitive ATB test must be included in the SED’s recommendations to the Regents.
145-2.15 (b) Satisfactory passing score	[…] scores greater than those [federally approved] pass points are not rigorously diagnostic of success in higher education.	In the longer range … it may make sense to have institutions provide more information about test usage and support provided to those who test in which ranges.	We have experimented with the ASSET test, and presently use the CPAt exam with a higher cut-off score.
145-2.15 (c) Independent administration and evaluation of ability-to-benefit tests		If there needs to be a certification on the part of institutions about independence of testing administrators then that would certainly be acceptable…

 

 

Proprietary Sector (con’t)	EVCI Career Colleges Holding Corp.	Mildred Elley
145-2.15 (b) Recognition of federally approved ability-to-benefit tests	Colleges which want to serve [the ATB] population, and have the students qualify for NYS financial aid, should be required to file a plan which must be approved by NYSED showing how they will satisfy […] general standards…   Providing the colleges with flexibility in determining the appropriate holistic approach is preferable to the requirement of one standard or set of criteria statewide.	We are successfully using the COMPASS test for entrance of ATB students and placement of the general population…The fear we had of students taking the test by computer seems unfounded.
145-2.15 (b) Satisfactory passing score
145-2.15 (c) Independent administration and evaluation of ability-to-benefit tests		[With the COMPASS test] there is less chance of grading discrepancies because the test is scored via computer at the ACT testing center. The student and the school receive immediate feedback.

 

 

 

 

 

 

 

 

 

 

Proprietary Sector (con’t)	Monroe College	Plaza College
145-2.15 (b) Recognition of federally approved ability-to-benefit tests	ATB tests should be at the Collegiate-Level and should only be a part of the Admissions Process. We support the decision to use for ATB admission and TAP eligibility tests designed for higher education (that also meet the requirements of the U.S. Department of Education).
145-2.15 (b) Satisfactory passing score	Given the vast differences between scores used by various institutions and some states, it seems increasingly difficult to try to develop scores that meet the needs of all institutions. A better approach would be to emphasize outcomes.
145-2.15 (c) Independent administration and evaluation of ability-to-benefit tests	Campus Assessment Centers should be continued except when rule violations are identified. ..institutions must also have in place careful record-keeping and monitoring processes… However, any institution determined by SED to be in violation of the rules regarding administration of tests or other assessment center procedures should be required to transfer testing to a certified off-site center.	Statement of assurance – require the president and/or chief academic officer to ensure academic integrity of both admissions and independent testing process.

 

 

 

 

 

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 July 1, 2007, as follows:

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

(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, academic performance awards or student loans 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.  Such requirements shall be applicable to students who first receive aid pursuant to section 661 of the Education Law in academic year 2007-2008.

(b)  Definitions.  For purposes of this section:

(1)  Assessment center means a center that:

(i) is not located 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 and loans 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 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 and loans 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 and loans 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 and loans 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 or loans under section 661 of the Education Law, the institution shall independently administer ability-to-benefit tests approved by the Board of Regents in accordance with the requirements of this section. 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 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) 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;

(vi) 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; 

(vii) all tests, test results, and test databases, if any, are kept in locked and secure containers;

(viii) 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;

(ix) the test administrator is not a current or former employee of, or consultant to, the institution, its affiliates, or its parent corporation;

(x) 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;

(xi) the test administrator is not a current or former student of the institution; 

(xii) the test administrator is not scoring the test; and

(xiii) 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 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. 

(4)  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 test taken by such student, the date of the test and the student’s scores on such tests. 

(5)  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. 

(6)  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.