[Federal Register Volume 59, Number 157 (Tuesday, August 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20138]
[[Page Unknown]]
[Federal Register: August 16, 1994]
_______________________________________________________________________
Part IV
Department of Education
_______________________________________________________________________
34 CFR Part 668
Student Assistance General Provisions; Proposed Rule
DEPARTMENT OF EDUCATION
34 CFR Part 668
RIN 1840-AB84
Student Assistance General Provisions
AGENCY: Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the Student Assistance General
Provisions regulations by revising Subpart A and adding a new Subpart
J. The proposed regulations govern the approval and administration of
tests that may be used to determine a student's eligibility for
assistance under the student financial assistance programs authorized
under Title IV of the Higher Education Act of 1965, as amended (Title
IV, HEA programs), if that student does not have a high school diploma
or its recognized equivalent. The regulations also propose a passing
score for each approved test. The proposed regulations implement
changes made to section 484(d) of the Higher Education Act of 1965, as
amended (HEA) by the Higher Education Amendments of 1992.
DATES: Comments must be received on or before October 17, 1994.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Lorraine Kennedy or Adara Walton, 400 Maryland Avenue SW.
(Regional Office Building 3, Room 4318), Washington, DC 20202-5343.
A copy of any comments that concern information collection
requirements should also be sent to the Office of Management and Budget
at the address listed in the Paperwork Reduction Act section of this
preamble.
FOR FURTHER INFORMATION CONTACT: Lorraine Kennedy or Adara Walton,
Telephone: (202) 708-7888. Individuals that use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern
time, Monday through Friday.
SUPPLEMENTARY INFORMATION: These proposed regulations implement amended
section 484(d) of the HEA, Public Law 102-325. As amended, section
484(d) provides that a student who does not have a high school diploma
or its recognized equivalent is eligible for Title IV, HEA program
funds only if--
The student takes an independently administered
examination and achieves a score specified by the Secretary,
demonstrating that the student has the ability to benefit from the
education or training being offered; or
The student is determined to have the ability to benefit
from the education or training being offered in accordance with a
``process'' prescribed by the State in which the institution the
student is attending is located and that has been approved by the
Secretary.
These proposed regulations were subject to a regulatory negotiation
process set forth in section 492 of the HEA. Under that process, the
Secretary convened four regional meetings to obtain public involvement
in the development of these proposed regulations. These meetings were
held in San Francisco, Atlanta, New York, and Kansas City. At these
meetings, the Secretary provided attendees with a list of issues that
needed to be addressed in these proposed regulations. A summary of the
responses of the attendees is contained in Appendix A to these proposed
regulations.
Groups that attended the regional meetings nominated individuals to
participate in regulatory negotiations. The Secretary selected
regulation negotiators from the names nominated and chose negotiators
to reflect all the groups that participate in the Title IV, HEA
programs, such as students, student financial aid administrators, and
various types of eligible institutions.
In accordance with section 492(b) of the HEA, the Secretary
prepared draft proposed regulations and negotiated provisions of the
draft with the negotiators. Two negotiating sessions were held: one in
April 1993 and one in June 1993. Generally, consensus was not reached
on any issues in these regulations, consensus being defined as
unanimity among all negotiators.
The provision of postsecondary education and training programs to
students who have neither a high school diploma nor its recognized
equivalent has broader dimensions than those covered under section
484(d) of the HEA and this proposed regulation. Within the systemic
education reforms of the Goals 2000 initiative and current efforts to
build an effective school-to-work transition system, the Secretary is
investigating long-term strategies to address problems of opportunity
and quality education for this population, and invites public comment
and suggestions concerning those strategies.
The Secretary also invites comment on an alternative approach to
implementing the changes in section 484(d) of the HEA under the 1992
Amendments (PL 102-325) that would link the ability-to-benefit (ATB)
testing system to State education practice and policy under the ``Goals
2000: Educate America Act'' (PL 103-227). If adopted by the Secretary,
under this alternative, the Secretary would publish in the final rule a
procedure with the following components:
--By a date to be specified, each State would be asked to inform the
Secretary of the test (or tests) which the State has determined best
reflect the education goals and standards for high school graduates in
its public education system. By the same specified date, each State
would also set the passing score or scores on those tests, and provide
the Secretary with a justification for the passing score in light of
the goals and standards for its public high school graduates. These
tests and passing scores would then become the only allowable ATB tests
and passing scores for all postsecondary institutions located and
licensed in the State.
--The Secretary could not disapprove the State's determination except
in circumstances in which the selection of tests and determination of
passing scores was documented as inappropriate. The State could replace
a disapproved test or reset a passing score under the same terms as
above.
--By the same specified date, each State would also submit to the
Secretary a plan to ensure independent, fair and secure administration
of the selected tests within its borders, including any provisions the
State may deem appropriate for testing students with disabilities and
students of limited English proficiency.
--The State would inform all institutions licensed by the State and
certified and made eligible for Title IV funds by the Secretary of the
approved tests, passing scores, administrative procedures, and special
provisions, and indicate how it intends to enforce its decisions.
--Any State that, by the date specified, chooses not to select tests,
determine passing scores, and submit plans for the other aspects of
ensuring independent, fair and secure administration of its ability to
benefit testing program, must notify the Secretary of that choice. By
not participating, the State would thereby be determining that students
applying for Title IV (HEA) financial aid to attend a school within the
State (1) would have to pass a test determined by the Secretary,
according to the procedures specified in this NPRM, or (2) participate
in an approved ``State process'' as specified in PL 102-325 and as
described in this NPRM.
The Secretary recognizes that students from many States may apply
to attend a single school within one State, and that standards (hence,
selection of tests and determination of passing scores) in the States
in which the students live may be different from standards in the State
in which the school is located. However, the State in which the school
is located is responsible for licensing that school, and thus should be
able to determine under what educational standards an individual
without a high school diploma or GED should be permitted to use Federal
funds at that school.
The following discussion reflects proposed significant changes to
the Student Assistance General Provisions regulations. Proposed changes
are discussed in the order in which they appear in the proposed
regulations text. If a provision applies to more than one section or is
included in more than one section, it is discussed the first time it
appears with an appropriate reference to its other appearances.
This NPRM proposes to make changes in the following areas:
Student Assistance General Provisions
Subpart A--General
Section 668.7 Eligible student. The Secretary has revised
Sec. 668.7(a)(3) to implement amended section 484(d) of the HEA. Under
current regulations, a student does not have to document that he or she
has a high school diploma or its recognized equivalent. It is currently
sufficient for a student to certify that he or she has such a
credential. The Secretary proposes in Sec. 668.7(a)(3)(i) to require a
student to document that he or she has such a credential.
The Secretary has proposed special provisions for a student who--
(1) Attended high school in the United States and is unable to
obtain a copy of his or her high school diploma or transcript because
the high school from which the student graduated closed and the records
are not available through any state or local education agency; or
(2) Attended high school or its equivalent in a foreign country and
is unable to obtain a copy of his or her high school diploma or
transcript.
The special procedures for students in the latter category were
suggested by one of the negotiators and are an adaptation of procedures
that are currently being used in New York State. The Secretary is
requesting public comment on the procedures for students in the latter
category.
The Secretary has also proposed that, if a student transfers from
one institution to another, a statement from the first institution on
an academic or financial aid transcript that it has a copy of the
transfer student's diploma or equivalent certificate would satisfy the
documentation requirement for the second institution.
It is the Secretary's view that the thrust of the amended section
484(d) of the HEA would be thwarted by continuing the current practice
of allowing institutions to accept a student's word that he or she has
a high school diploma. Moreover, the Secretary believes that this basic
element of student eligibility should be documented.
During the regulation negotiation sessions, the majority of the
negotiators agreed to this proposed requirement. The Secretary is
requesting public comment on the burden associated with obtaining a
copy of a student's high school diploma for all students receiving
Title IV aid. The Secretary also requests comment on the burden of the
proposed requirement that foreign students who cannot obtain a copy of
their diploma submit a written statement, indicating why their diploma
cannot be provided, in both English and their native language.
Subpart J--Approval of Independently Administered Tests; Specification
of Passing Score; Approval of State Process
In this subpart, the Secretary is proposing procedures and
standards that govern the Secretary's approval of tests, the passing
score of each test, the independent administration of those tests, and
the approval of State ``processes.'' These proposed procedures differ
significantly from current procedures governing test approval, passing
scores, and test administration because the Secretary believes that the
current procedures do not adequately evaluate whether students without
a high school diploma or its equivalent should be eligible to receive
Title IV, HEA program funds. The Secretary intends that these new
procedures will significantly strengthen that evaluation.
Procedures and Standards That Govern the Approval of Tests
Section 668.142 Special definitions. The Secretary has proposed to
define special terms that are used throughout Subpart J. The proposed
definitions are based on definitions commonly used in other Federal
regulations or that are commonly used in the psychometric field.
Section 668.143 Application for test approval. A test publisher
that wishes the Secretary to approve its test for use under section
484(d) of the HEA must provide sufficient information to enable the
Secretary to determine that the test instrument satisfies standards
used by the education testing industry, and that the test results are
scientifically valid. In this section, the Secretary proposes
requirements to meet those twin goals. Standards used by the testing
industry include but are not limited to documentation of test
development, evidence of reliability, unambiguous scales, and
provisions for test security.
Section 668.144 Test approval procedures. The Secretary has
proposed procedures for approving tests. Under these procedures, the
Secretary will use experts in the field of educational testing and
assessment to initially evaluate tests and advise the Secretary as to
whether the test meets all the requirements for test approval set forth
in Subpart J. If the test submitted for approval is in a foreign
language, to the extent possible, the Secretary will select at least
one expert who is also fluent in the language in which the test is
written.
If the test does not meet the requirements for test approval, the
Secretary will notify the test publisher and provide to that test
publisher the reasons why the test was not approved. The test publisher
may request the Secretary to re-evaluate that test. The test publisher
may accompany that re-evaluation request with documents that address
the reasons for the non-approval of the test, or an analysis of why the
test met test approval requirements, notwithstanding the Secretary's
decision. The Secretary is requesting public comment on the
resubmission process used to evaluate test for approval, and on what
information could be updated to reflect changes rather than resubmitted
in full.
If the Secretary approves a test, the Secretary proposes that the
approval period generally would be five years. If the test publisher
wishes to have that test re-approved after five years without
interruption, the Secretary proposes that the test publisher submit the
test for re-approval at least six months before its initial approval is
scheduled to lapse.
These procedures are designed to ensure that the tests are reviewed
objectively and that the test publishers would have a fair opportunity
to appeal the Secretary's decision if necessary.
Section 668.145 Criteria for approving tests. To be approved, the
Secretary proposes that a test must meet all the conditions for test
construction provided in the 1985 edition of the Standards for
Educational and Psychological Testing prepared by the joint committee
of the American Educational Research Association, the American
Psychological Association, and the National Council on Measurement in
Education. With the exception of tests designed for students in English
as a Second Language (ESL) programs, the Secretary proposes that an
approved test assess secondary school level basic verbal and
quantitative skills, knowledge, and/or general learned verbal and
quantitative abilities. Therefore, the content of a test must be able
to assess those skills, knowledge, and abilities. The test must sample
the major content ``domains'' of secondary school level verbal and
quantitative skills with a sufficient number of questions to fully
represent each domain. The test questions must also permit meaningful
analysis of the performance of students who are representative of the
contemporary population who are beyond the age of compulsory school
attendance and either have or do not have a high school diploma or its
equivalent. The proposed standards are generally accepted in the
psychometric community.
In establishing the level of education to be assessed, the
Secretary considered whether to establish that level at a particular
grade of secondary schools, such as a tenth grade, eleventh grade, or
twelfth grade level. However, because of the tremendous differences in
the United States in the grade level at which subjects are taught in
secondary schools, the Secretary determined that it would not be
possible to establish such a grade level. Thus, as a general guideline,
test questions have to be understood and should be answerable by
students in the ninth grade through twelfth grade. An approved test
would use test items (questions) that are drawn from the general
content of secondary school level basic verbal and quantitative skills,
and would adequately sample that content.
The Secretary does not consider a test to be adequate if it
assesses only an individual's personality, general level of
intelligence, interest related to vocational preferences, or a single
special-aptitude, such as manual dexterity. The Secretary believes that
there is a significant difference between ability to benefit from
instruction in an education or training program and the demonstrable
skills necessary to enter an occupation. The Secretary believes that
the ability to process verbal, symbolic, and numerical information is
necessary to benefit from instruction from any education or training
program.
Section 668.146 Passing score. The Secretary proposes to require
test publishers to determine a passing score for each test submitted
for approval. The Secretary proposes that the passing score for each
test will be one standard deviation below the mean for students with
high school diplomas who have taken the test within three years before
the date on which the test is submitted to the Secretary for approval.
The Secretary has proposed this passing score to establish a sense
of comparability among the three categories of students who are
eligible to receive Title IV, HEA program funds. These categories
include students who have a high school diploma, students who have the
equivalent of that diploma, in most cases a GED, and students who have
neither but can pass a test approved by the Secretary.
The Secretary believes that earning a high school diploma or GED
certificate should be the primary basis for qualifying to receive Title
IV, HEA program assistance. The Secretary further believes that
students who do not have those credentials and qualify to receive such
assistance by taking a test should demonstrate through that test a
level of verbal and quantitative skills at least comparable to the
typical range of performance of students in those other two categories.
To demonstrate this comparability, the Secretary proposes to
establish as the passing score for each approved test one standard
deviation below the mean (average) score achieved by students with high
school diplomas who have taken the test within three years before the
date on which the test was submitted to the Secretary for approval. (In
very broad terms, the standard deviation describes the typical range of
performance around the mean scores on a test.)
The Secretary acknowledges that during negotiated rulemaking, the
Secretary had proposed that the passing score would be the mean score
of high school graduates who have taken the test within three years of
the test being submitted for approval. Many of the regulatory
negotiators had indicated that this passing score was too high for
comparability purposes. Accordingly, in view of these comments, for the
purpose of this proposed rule, the Secretary has proposed a lower
passing score. The Secretary welcomes specific comments on the
appropriate passing score that should be included in this regulation.
Section 668.147 Additional criteria for the approval of
performance based tests, tests for non-native speakers of English,
modified tests for persons with disabilities, and computer-based tests;
Section 668.148 Special provisions for the approval of assessment
procedures for special populations for whom no tests are reasonably
available; and Section 668.153 Administration of tests for students
whose native language is not English or for persons with disabilities.
The Secretary believes that special provisions should be made for both
persons with documented disabilities and students whose native
languages are not English. Therefore, the Secretary is proposing that,
under certain circumstances, special testing procedures or instruments
can be used for testing persons with disabilities and for testing
students whose native languages are not English. These tests, of
course, would have to be independently administered.
Independent Administration of Tests
In general, the Secretary has proposed a scheme under which
approved tests are administered independent of the institutions that
use the tests and test results to establish the eligibility of their
students for Title IV, HEA program assistance. The Secretary has
proposed an interlocking network of agreements between test publishers,
test administrators, and institutions to achieve this result. The
Secretary proposes that the test publishers will have primary
responsibility for ensuring that their tests are independently
administered.
Under the proposed scheme, a test publisher will give its test
directly or offer it through test administrators that it certifies. The
test publisher will certify a test administrator when it determines the
test administrator has the necessary training, knowledge, and skills to
give its test and the ability and capacity to keep the test secure from
release or disclosure. The test publisher will not provide its test to
institutions or allow test administrators to provide its test to
institutions. The test administrator may give a test only to a student
who is attending, or is scheduled to attend, an institution that is
independent of the test administrator.
The test publisher will score the test and provide the student and
the student's institution with a notice indicating whether the student
has passed the test and the student's test score. The institution will
be able to use the notice from the test publisher to determine whether
the student qualifies as an eligible student for Title IV, HEA program
assistance.
Section 668.149 Agreement between the Secretary and a test
publisher. The Secretary is proposing that if a publisher's test is
approved, the test publisher would be required to enter into an
agreement with the Secretary before an institution would be able to use
the test to determine the eligibility of a student for Title IV, HEA
program funds. The agreement between the Secretary and the test
publisher would articulate the responsibilities of the test publisher
with respect to ensuring the integrity and proper administration of the
test.
The agreement would provide that the test approved by the Secretary
could be given to students only by those test administrators who are
certified by the test publisher. Under the agreement, the test
publisher would directly administer its test or would enter into
agreements for test administration with test administrators who it
determines are properly trained and possess the knowledge and skills
necessary to test students in accordance with the test publisher's
procedures and instructions. The test publisher would agree to score
the test and maintain and make available for the Secretary's review the
records of tests given by the test administrators it certifies. In
addition, the test publisher would agree to provide the Secretary with
an analysis of the test scores of tests given by test administrators
for the purpose of determining whether the test scores produced any
irregular pattern indicating that the test may not have been properly
administered.
If the test publisher finds, through an analysis of the test scores
or by other means, that a test administrator did not properly give the
test to students or failed to secure the test, the test publisher would
be required to decertify the test administrator. Similarly, the
Secretary would terminate the agreement with the test publisher if the
test publisher failed to carry out the terms of the agreement.
Section 668.150 Agreement between a test publisher and a test
administrator. Except in the case of test administrators at a testing
assessment center, the Secretary is proposing that a test publisher
must enter into an agreement with each test administrator it certifies
to give its test. Initial and continuing approval by the Secretary of a
publisher's test is subject to this requirement. The agreement would
require the test administrator to be independent from the institution
that a student taking the test is attending or is planning to attend.
In addition, the agreement would require the test administrator to give
the test in accordance with the test publisher's instructions, to
secure the test properly against disclosure or release, and to submit
the original test answer sheet promptly to the test publisher for
grading. The test publisher would have to terminate the agreement with
a test administrator if the test publisher finds that the test
administrator violated the provisions of the agreement.
Section 668.151 Agreement between the institution and a certified
test administrator. The Secretary proposes that if an institution
wishes to award Title IV, HEA program funds to a student without a high
school diploma or its recognized equivalent, the institution must enter
into a written agreement with a test administrator who has been
certified by a test publisher. The Secretary does not consider that a
test administrator has an ownership interest in an institution if that
ownership interest is derived from ownership of a mutual fund whose
portfolio included the stock of the institution or the corporation that
owns the institution. In the agreement, the institution would agree not
to interfere with or compromise the independence of the test
administrator.
The Secretary is requesting public comment on the use of the three
separate agreements described in Secs. 668.149, 668.150 and 668.151. In
commenting on this matter, the Secretary is interested in alternative
procedures that would accomplish the same purpose, independence of test
administration, but would require only one or two agreements.
Section 668.152 Administration of tests. This section summarizes
the rules regarding the administration of tests under this subpart. In
addition, the Secretary proposes that if a student fails a test, the
student may not retake the same form of that test for the period
specified by the test publisher in the publisher's application that was
approved by the Secretary.
Section 668.154 Institutional accountability. Under the
Secretary's proposed scheme, institutions will not be part of the
process of determining whether students pass approved tests. Therefore,
if an institution receives a notice from an approved test publisher
that one of its students received a passing score on an approved test,
the institution will not be liable to repay any student financial
assistance funds the student receives if the student, in actuality, did
not pass that test. An institution will be liable only if it used a
test administrator that was not independent of the institution, it
violated its agreement with a test administrator, it compromised in any
way the testing process, or it was unable to document that the student
received a passing score on an approved test. These rules are intended
to ensure that an institution will not compromise the administration of
a test.
Approval of State ``processes.''
Section 668.155 Approved State process. Under section 484(d) of
the HEA, a student without a high school diploma or its recognized
equivalent may be eligible to receive Title IV, HEA program funds
without passing an independent examination approved by the Secretary if
the student is determined to have the ability to benefit from education
or training under a State ``process'' approved by the Secretary for
that purpose. The State process provision was included in the Higher
Education Amendments of 1992 as a result of the action taken by the
House of Representatives. The activities the Secretary has proposed for
the State process were based upon the description of the State process
that was contained in the House Committee Report of the Committee on
Education and Labor which accompanied the House version of what was to
become the Higher Education Amendments of 1992. The Secretary proposes
to approve a State process based upon (1) activities that are included
in the process and (2) student outcomes. The proposed rules are
designed to ensure that a State process is approved only if the process
is effective in enabling students to benefit from the instruction
offered by institutions using the process.
In calculating the passing score on approved tests, the Secretary
has proposed to base that passing score on one standard deviation below
the mean for students with high school diplomas who have taken the test
within three years before the date on which the test is submitted to
the Secretary for approval. In this way, the Secretary has proposed
that recipients of Title IV, HEA program funds without high school
diplomas have a rough comparability with recipients with high school
diplomas. To maintain that comparability under the State process
method, the Secretary proposes to approve state processes if the
success rates of students it admits under the State process are within
95 percent of the success rates of high school graduates who are
enrolled in the same educational programs at the institutions that
participate in the State process. A ``success rate'' is a simple
measure of the rate at which students complete their programs or are
making progress toward that completion. For this purpose, the Secretary
considers that students are making progress toward the completion of
their programs if they are still enrolled in an institution at the end
of an award year.
Executive Order 12866
These proposed regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those determined by the
Secretary to be necessary for administering this program effectively
and efficiently. Burdens specifically associated with information
collection requirements, if any, are identified and explained elsewhere
in this preamble under the heading Paperwork Reduction Act of 1980.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has
determined that the benefits of the proposed regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
To assist the Department in complying with the specific
requirements of Executive Order 12866, the Secretary invites comment on
whether there may be further opportunities to reduce any potential
costs or increase potential benefits resulting from these proposed
regulations without impeding the effective and efficient administration
of the program.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities. The small entities that would be affected by these proposed
regulations are small institutions of postsecondary education and test
publishers. These regulations would safeguard Federal funds and reduce
potential abuse in the Title IV, HEA programs. These changes will not
significantly increase institutions' workloads or costs associated with
administering the Title IV, HEA programs. In the case of test
publishers, these businesses are compensated for any services they
provide. Therefore, these regulations will not have a significant
economic impact on a substantial number of small entities.
Paperwork Reduction Act of 1980
Sections 668.143, 668.144, 668.145, 668.147, 668.148, 668.149,
668.151, 668.152, 668.153, and 668.155 contain information collection
requirements. As required by the Paperwork Reduction Act of 1980, the
Department of Education will submit a copy of these sections to the
Office of Management and Budget (OMB) for its review. (44 U.S.C.
3504(h)).
This NPRM contains records that would affect test publishers,
postsecondary institutions, and students that do not have high school
diplomas or recognized equivalents and that wish to apply for Title IV,
HEA programs. The information used by test publishers for annual
reporting and recordkeeping is readily available in publishers records.
An estimate of the total annual reporting and recordkeeping burden that
will result from the collection of the information is 98,375 hours for
196,750 responses.
The collection activity associated with the State process is
incorporated in various sections through the regulations. All other
burden associated with the maintenance of records of the student's
ability-to-benefit is already cleared under the individual programs of
Federal financial assistance for which these students may be applying
under regulations governing institutions administering these programs.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 3002, New Executive
Office Building, Washington, D.C. 20503; Attention: Daniel J. Chenok.
Invitation To Comment
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in Room 4318, Regional Office Building 3, 7th and D Streets,
S.W., Washington, D.C., between the hours of 8:30 a.m. and 4 p.m.,
Monday through Friday of each week except Federal holidays.
Assessment of Educational Impact
The Secretary particularly requests comments on whether the
proposed regulations in this document would require transmission of
information that is being gathered by or is available from any other
agency or authority of the United States.
List of Subjects
34 CFR Part 600
Administrative practice and procedure, Colleges and universities,
Education, Reporting and recordkeeping requirements.
34 CFR Part 668
Administrative practice and procedure, Colleges and universities,
Consumer protection, Education, Grant programs-education, Loan
programs-education, Reporting and recordkeeping requirements, Student
aid.
Dated: August 9, 1994.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number: 84.007 Federal
Supplemental Educational Opportunity Grant Program; 84.032 Federal
Family Educational Loan Program; 84.032 Federal PLUS Program; 84.032
Federal Supplemental Loans for Students Program; 84.033 Federal
Work-Study Program; 84.038 Federal Perkins Loan Program; 84.063
Federal Pell Grant Program; 84.069 Federal State Student Incentive
Grant Program.)
The Secretary proposes to amend Part 668 of Title 34 of the Code of
Federal Regulations as follows:
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
1. The authority citation for Part 668 continues to read as
follows:
Authority: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, and 1141,
unless otherwise noted.
2. Section 668.7 is amended by removing paragraph (b);
redesignating paragraphs (c) through (k) as paragraphs (b) through (j);
and revising paragraph (a)(3) to read as follows:
Sec. 668.7 Eligible student.
(a) * * *
(3)(i) Has a high school diploma or its recognized equivalent, as
demonstrated by the institution's receipt of--
(A) A copy of the student's high school diploma;
(B) A copy of the student's high school transcript that indicates
that the student completed a high school program;
(C) A copy of the student's GED;
(D) A copy of the student's State certificate that the State
recognizes as the equivalent of a high school diploma;
(E) For a student who attended high school in the United States and
who is unable to obtain a copy of his or her high school diploma or
transcript because the high school from which the student graduated
closed and the records are not available through any state or local
education agency, a written statement from the student indicating that
the student graduated from high school, was unable to secure a copy of
his or her high school diploma or transcript, and the reason for that
inability;
(F) For a student who attended high school or its equivalent in a
foreign country and who is unable to obtain a copy of his or her high
school diploma or transcript, a written statement by the student in
English and in the student's native language that indicates that the
student was unable to obtain his or her diploma or transcript, and the
reasons for that inability; or
(G) In the case of a student who transferred from one eligible
institution to another, a statement on the academic or financial aid
transcript the institution from which the student transferred from that
indicates that it has documentation for the student described in
paragraphs (a)(3)(i)(A)-(a)(3)(i)(F) of this section; or
(ii) (A) Has obtained within 12 months before the date the student
initially receives Title IV HEA program funds, a passing score
specified by the Secretary on an approved, independently administered
test, in accordance with the provisions contained in Subpart J of this
part; or
(B) Is enrolled in an eligible institution that participates in a
State process approved by the Secretary under Subpart J of this part.
* * * * *
3. Subpart J is added to Part 668 to read as follows:
Subpart J--Approval of Independently Administered Tests; Specification
of Passing Score; Approval of State Process
Sec.
668.141 Scope.
668.142 Special definitions.
668.143 Application for test approval.
668.144 Test approval procedures.
668.145 Criteria for approving tests.
668.146 Passing score.
668.147 Additional criteria for the approval of performance--based
tests, tests for non-native speakers of English, modified tests for
persons with disabilities, and computer-based tests and test for ESL
programs.
668.148 Special provisions for the approval of assessment
procedures for special populations for whom no tests are reasonably
available.
668.149 Agreement between the Secretary and a test publisher.
668.150 Agreement between a test publisher and a test
administrator.
668.151 Agreement between the institution and a certified test
administrator.
668.152 Administration of tests.
668.153 Administration of tests for students whose native language
is not English or for persons with disabilities.
668.154 Institutional accountability.
668.155 Approved State process.
Subpart J--Approval of Independently Administered Tests;
Specification of Passing Score; Approval of State Process
Sec. 668.141 Scope.
(a) This subpart sets forth the provisions under which a student
who has neither a high school diploma nor its recognized equivalent may
become eligible to receive Title IV, HEA program funds, except for FSLS
Program funds, by--
(1) Achieving a passing score, specified by the Secretary, on an
independently administered test approved by the Secretary under this
subpart; or
(2) Being enrolled in an eligible institution that participates in
a State process approved by the Secretary under this subpart.
(b) Under this subpart, the Secretary sets forth--
(1) The procedures and criteria the Secretary uses to approve
tests;
(2) The basis on which the Secretary specifies a passing score on
each approved test;
(3) The procedures and conditions under which the Secretary
determines that an approved test is independently administered; and
(4) The procedures and conditions under which the Secretary
determines that a State process demonstrates that students in the
process have the ability to benefit from the education and training
being offered to them.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.142 Special definitions.
The following definitions apply to this subpart:
Assessment center: A center--
(1) Is located at an eligible institution that--
(i) Offers two-year or four-year degrees; or
(ii) Qualifies as an eligible public vocational institution;
(2) Is responsible for gathering and evaluating information about
individual students for multiple purposes, including appropriate course
placement;
(3) Does not have as its primary purpose the administration of
ability-to-benefit tests;
(4) Is independent of the admissions process at the institution at
which it is located; and
(5) Is staffed by professionally trained personnel.
Computer-based test: A test administered and scored by a computer.
Disabled student: A student who--
(1) Has a physical or mental impairment which substantially limits
one or more major life activities;
(2) Has a record of such an impairment; or
(3) Is regarded as having such an impairment.
General learned abilities: Cognitive operations, such as deductive
reasoning, reading comprehension, or translation from graphic to
numerical representation, that may be learned in both school and non-
school environments.
Non-native speaker of English: A person whose first language is not
English and who is not fluent in English.
Secondary school level: As applied to ``content,'' ``curricula,''
or ``basic verbal and quantitative skills,'' refers to basic knowledge
or skills generally learned in the 9th through 12th grades in United
States secondary schools.
Test administrator: An individual who may give tests under this
subpart.
Test item: A question on a test.
Test publisher: An individual, organization, or agency that owns a
registered copyright of a test, or is licensed by the copyright holder
to sell or distribute a test.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.143 Application for test approval.
(a) The Secretary only reviews tests under this subpart that are
submitted by the publisher of that test.
(b) A test publisher that wishes to have its test approved by the
Secretary under this subpart must submit an application to the
Secretary, at such time and in such manner, as the Secretary may
prescribe. The application shall contain all the information necessary
for the Secretary to approve the test under this subpart, including but
not limited to, the information contained in this section.
(c) A test publisher shall include with its application--
(1) A summary of the precise editions, forms, levels, and (if
applicable) sub-tests and abbreviated tests for which approval is being
sought;
(2) The name, address, and telephone number of a contact person to
whom the Secretary may address inquiries;
(3) Each edition and form of the test for which the publisher
requests approval;
(4) The proposed passing score for each test;
(5) Documentation of the development of the test, including a
history of the test's use;
(6) Norming data and other evidence used in determining the passing
score;
(7) Material that defines the content domains addressed by the
test;
(8) For tests first published five years or more before the date
submitted to the Secretary for review and approval, documentation of
periodic reviews of the content and specifications of the test to
ensure that the test continues to reflect secondary school level
curricula;
(9) If a test has been revised from its most recent edition, an
analysis of the revisions, including the reasons for the revisions, the
implications of the revisions for the comparability of scores on the
current test to scores on the previous test, and data from validity
studies of the test undertaken subsequent to the revisions;
(10) A description of the manner in which test-taking time was
determined in relation to the content representativeness requirements
in Sec. 668.145(b)(2), and an analysis of the effects of time on
performance;
(11) A technical manual that includes--
(i) An explanation of the methodology and procedures for measuring
the reliability of the test;
(ii) Evidence that different forms of the test, including, if
applicable, short forms, are comparable in reliability;
(iii) Other evidence demonstrating that the test permits consistent
assessment of individual skill, ability, or knowledge;
(iv) Evidence that the test was validated using--
(A) Groups that were of sufficient size to produce defensible
standard errors of the mean and that were not disproportionately
composed of any race or gender; and
(B) A contemporary population representative of persons who are
beyond the usual age of compulsory school attendance in the United
States;
(v) Documentation of the level of difficulty of the test;
(vi) Unambiguous scales and scale values so that standard errors of
measurement can be used to determine statistically significant
differences in performance; and
(vii) Additional guidance on the interpretation of scores resulting
from any modifications of the tests for persons with documented
disabilities;
(12) The manual provided to test administrators containing
procedures and instructions for the security and administration of the
test and the forwarding of the test scoring data;
(13) An analysis of the item-content of each edition, form, level,
and (if applicable) sub-test to demonstrate compliance with the
required secondary school level criterion specified in Sec. 668.145(b);
(14) Recommended passing scores for each edition, form, level, and
(if applicable) sub-test or partial battery for which approval is being
sought, in accordance with Sec. 668.146;
(15) For performance-based tests or tests containing performance-
based sections, a description of the training or certification required
of test administrators and scorers by the test publisher;
(16) A description of retesting procedures; and
(17) Other evidence establishing the test's compliance with the
criteria for approval of tests as provided in Sec. 668.145.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.144 Test approval procedures.
(a)(1) When the Secretary receives a complete application from a
test publisher, the Secretary selects experts in the field of
educational testing and assessment to determine whether the test meets
the requirements for test approval contained in Secs. 668.145, 668.146,
668.147, or 668.148, as appropriate, and to advise the Secretary of
their determinations.
(2) If the test involves a language other than English, the
Secretary selects at least one individual described in paragraph (a)(1)
of this section who is fluent in the language in which the test is
written to advise the Secretary on whether the test meets the
additional criteria, provisions, and conditions for test approval
contained in Secs. 668.147 and 668.148.
(b) The Secretary determines whether the test publisher's test
meets the criteria and requirements for approval after taking the
advice of the experts into account.
(c)(1) If the Secretary determines that a test does not satisfy the
criteria and requirements for test approval, the Secretary notifies the
test publisher of the Secretary's decision, and the reasons why the
test did not meet those criteria and requirements.
(2) The test publisher may request that the Secretary reevaluate
the Secretary's decision. Such a request must be accompanied by--
(i) Documentation and information that addresses the reasons for
the non-approval of the test; and
(ii) An analysis of why the information and documentation submitted
meets the criteria and requirements for test approval notwithstanding
the Secretary's decision to the contrary.
(d) The Secretary approves a test for a period not to exceed five
years from the date of the Secretary's written notice to the test
publisher. At least six months before the date on which the test
approval is scheduled to lapse, the test publisher may re-submit the
test for review and approval according to the procedures set forth in
Sec. 668.143.
(e) The approval of a test may be withdrawn if the Secretary
determines that the publisher violated any terms of the agreement
described in Sec. 668.149, or that the information the publisher
submitted as a basis for approval of the test was inaccurate.
(f) If the Secretary revokes approval of a previously approved
test, the revocation is effective 120 days from the date the notice of
revocation is published in the Federal Register.
(g) For test batteries that contain multiple subtests measuring
content domains other than verbal and quantitative domains, the
Secretary reviews only those subtests covering verbal and quantitative
domains.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.145 Criteria for approving tests.
(a) Except as provided in Sec. 668.148, the Secretary approves a
test under this subpart if the test meets the criteria set forth in
paragraph (b) of this section and the test publisher satisfies the
requirements set forth in paragraph (c) of this section.
(b) To be approved under this subpart, a test shall--
(1) Assess secondary school level basic verbal and quantitative
skills and knowledge, and general learned abilities;
(2) Sample the major content domains of secondary school level
verbal and quantitative skills with sufficient numbers of questions
to--
(i) Adequately represent each domain; and
(ii) Permit meaningful analyses of item-level performance by
students who are representative of the contemporary population beyond
the age of compulsory school attendance and have earned a high school
diploma;
(3) Require appropriate test-taking time to permit adequate
sampling of the major content domains described in paragraph (a)(2) of
this section;
(4) Have all forms (including short forms) comparable in
reliability;
(5) If the test is revised, have new scales, scale values, and
scores that are demonstrably comparable to the old scales, scale values
and scores; and
(6) Meet all primary, secondary, and applicable conditional
standards for test construction provided in the 1985 edition of the
Standards for Educational and Psychological Testing prepared by a joint
committee of the American Educational Research Association, the
American Psychological Association, and the National Council on
Measurement in Education. (A copy of these standards may be obtained
from the American Psychological Association, Inc., 1200 17th Street,
N.W., Washington, D.C. 20036.)
(c) In order for a test to be approved under this subpart, a test
publisher shall--
(1) Include in the test booklet or package--
(i) Clear, specific, and complete instructions for test
administration, including information for test takers on the purpose,
timing, and scoring of the test; and
(ii) Sample questions representative of the content and average
difficulty of the test;
(2) Have two or more secure, equated, alternate forms of the test;
(3) Except as provided in Sec. 668.146, establish a passing score
that is the mean score for high school graduates who have taken the
test within three years before the date on which the test is submitted
to the Secretary for approval;
(4) Validate the test with--
(i) Groups that were of sufficient size to produce defensible
standard errors of the mean and were not disproportionately composed of
any race or gender; and
(ii) A contemporary population representative of persons who are
beyond the usual age of compulsory school attendance in the United
States; and
(5) If test batteries include sub-tests assessing different verbal
and/or quantitative skills, have only one composite passing score for
verbal skills, and only one composite passing score for quantitative
skills.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.146 Passing score.
Except as provided in Secs. 668.147 and 668.148, to demonstrate
that a test taker has the ability to benefit from the training offered,
the Secretary specifies that the passing score on each approved test is
one standard deviation below the mean for students with high school
diplomas who have taken the test within three years before the date on
which the test is submitted to the Secretary for approval.
(Authority; 20 U.S.C. 1091(d))
Sec. 668.147 Additional criteria for the approval of performance-based
tests, tests for non-native speakers of English, modified tests for
persons with disabilities, and computer-based tests and tests for ESL
programs.
(a) In addition to satisfying the criteria in Sec. 668.145, to be
approved by the Secretary, a test or a test publisher must meet the
following criteria, if applicable:
(1) In the case of a test that is performance-based, or includes
performance-based sections, for measuring writing, speaking, listening,
or quantitative problem-solving skills, the test publisher must
provide--
(i) A minimum of four parallel forms of the test; and
(ii) A description of the training provided to test administrators,
and the criteria under which trained individuals are certified to
administer and score the test.
(2) In the case of a test developed for a non-native speaker of
English who is enrolled in a program that is taught in his or her
native language, the test must be--
(i) Linguistically accurate and culturally sensitive to the
population for which the test is designed, regardless of the language
in which the test is written;
(ii) Supported by documentation detailing the development of
normative data;
(iii) If translated from an English version, supported by
documentation of procedures to determine its reliability and validity
with reference to the population for which the translated test was
designed;
(iv) Developed in accordance with guidelines provided in the
``Testing Linguistic Minorities'' section of the Standards for
Educational and Psychological Testing; and
(v)(A) If the test is in Spanish, accompanied by a recommendation
for a passing score based on one standard deviation below the mean for
Spanish-speaking students with high school diplomas who have taken the
test within three years before the date on which the test is submitted
to the Secretary for approval; and
(B) If the test is in a language other than Spanish, accompanied by
a recommendation for a provisional passing score based upon performance
of a sample of test takers representative of the intended population
and large enough to produce stable norms.
(3) In the case of a test that is modified for use for persons with
disabilities, the test publisher must--
(i) Follow guidelines provided in the ``Testing People Who Have
Handicapping Conditions'' section of the Standards for Educational and
Psychological Testing;
(ii) Provide documentation of the appropriateness and feasibility
of the modifications relevant to test performance; and
(iii) Recommend passing score(s) based on the performance of test-
takers.
(4) In the case of a computer-based test, the test publisher must--
(i) Provide documentation to the Secretary that the test complies
with the basic principles of test construction and standards of
reliability and validity as promulgated in the Standards for
Educational and Psychological Testing, as well as specific guidelines
set forth in the American Psychological Association's Guidelines for
Computer-based Tests and Interpretations (1986) (Copies of these
standards and guidelines may be obtained from the American
Psychological Association, Inc., 1200 17th Street, N.W., Washington,
D.C. 20036);
(ii) Provide test administrators with instructions for
familiarizing test-takers with computer hardware prior to test-taking;
and
(iii) Provide two or more parallel, equated forms of the test, or,
if parallel forms are generated from an item pool, provide
documentation of the methods of item selection for alternate forms.
(b) If a test is designed solely to measure the English language
competence of non-native speakers of English--
(1) The test must meet the criteria set forth in
Sec. 668.145(b)(6), and Sec. 668.145(c)(1), (c)(2), and (c)(4); and
(2) The test publisher must recommend a passing score based on the
mean score of those test takers beyond the age of compulsory school
attendance who entered U.S. high school equivalency programs over the
previous five years.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.148 Special provisions for the approval of assessment
procedures for special populations for whom no tests are reasonably
available.
If no test is reasonably available for persons with disabilities or
students whose native language is not English and who are not fluent in
English, so that no test can be approved under Secs. 668.145, 668.146,
and 668.147 for these students, the following procedures apply:
(a) Persons with disabilities. (1) The Secretary considers a
modified test or testing procedure, or instrument that has been
scientifically developed specifically for the purpose of evaluating the
ability to benefit from postsecondary training or education of disabled
student to be an approved test for purposes of this subpart provided
that the testing procedure or instrument measures both basic verbal and
quantitative skills at the secondary school level.
(2) The Secretary considers the passing scores for these testing
procedures or instruments to be those recommended by the test developer
provided that the test administrator, using such procedures or
instruments, maintains appropriate documentation, including a
description of the procedures or instruments, their content domains and
technical properties, scoring procedures, and recommended passing
scores.
(b) Students whose native language is not English. The Secretary
considers a test in a student's native language for a student whose
native language is not English to be an approved test under this
subpart if--
(1) The Secretary has not approved any test in that native
language;
(2) The test was not previously rejected for approval by the
Secretary;
(3) The test measures both basic verbal and quantitative skills at
the secondary school level; and
(4) The passing scores and the methods for determining the passing
scores are fully documented.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.149 Agreement between the Secretary and a test publisher.
(a) If the Secretary approves a test under this subpart, the test
publisher must enter into an agreement with the Secretary containing
the provisions in paragraph (b) of this section before an institution
may use the test to determine the eligibility of a student for Title
IV, HEA program funds.
(b) The agreement between a test publisher and the Secretary shall
provide that the test publisher shall--
(1) Allow only test administrators that it certifies to give its
test;
(2) Certify test administrators who have--
(i) The necessary training, knowledge, and skill to test students
in accordance with the test publisher's testing requirements; and
(ii) The ability and facilities to keep its test secure against
disclosure or release;
(3) Enter into an agreement with each test administrator that it
certifies;
(4) Decertify a test administrator if it finds that the test
administrator--
(i) Has repeatedly failed to give its test in accordance with the
publisher's instructions;
(ii) Has not kept the test secure; or
(iii) Has otherwise violated the provisions of the agreement
entered into under Sec. 668.150;
(5) Score the test answer sheet that it receives from a test
administrator;
(6) If a computer-based test, provide the test administrator with
software that will:
(i) Immediately generate a score report for each test taker;
(ii) Allow the test administrator to send to the test publisher a
secure write-protected diskette copy of the test taker's performance on
each test item and the test taker's test scores; and
(iii) Prohibit any changes in test taker responses or test scores;
(7) Promptly send to the student and the institution the student
indicated he or she is attending or scheduled to attend a notice
stating the student's score for the test and whether or not the student
passed the test;
(8) Keep, for a period of at least five years, each test answer
sheet or electronic record forwarded for scoring and all other
documents forwarded by the test administrator with regard to the test;
(9) Every two years after the date the Secretary approves the test,
analyze the test scores of students to determine whether the test
scores produce any irregular pattern that raises an inference that the
tests were not being properly administered, and provide the Secretary
with a copy of this analysis; and
(10) Upon request, give the Secretary, guaranty agency, accrediting
agency, and State Postsecondary Review Entity (SPRE) access to test
records or other documents related to an audit, investigation, or
program review of the institution, test publisher, or test
administrator.
(c)(1) The Secretary may terminate an agreement with a test
publisher if the test publisher fails to carry out the terms of the
agreement described in paragraph (b) of this section.
(2) Before terminating the agreement, the Secretary will give the
test publisher the opportunity to show that it has not failed to carry
out the terms of its agreement.
(3) If the Secretary terminates an agreement with a test publisher
under this section, the Secretary notifies institutions through
publication in the Federal Register when they may no longer use the
publisher's test for purposes of determining a student's eligibility
for Title IV, HEA program funds.
(Authority: 20 U.S.C. 1091(d))
Sec. 668.150 Agreement between a test publisher and a test
administrator.
(a) Except in the case of a test administrator at a testing
assessment center, a test publisher whose test was approved by the
Secretary under this subpart must enter into an agreement with each
test administrator that it certifies to give its test to determine a
student's eligibility for Title IV, HEA program assistance.
(b) The agreement between a test publisher and a test administrator
shall provide that the test administrator will--
(1) Give a test to a student only if the test administrator is
independent of the institution the student is attending or scheduled to
attend;
(2) Give the test in accordance with the test publisher's
instructions;
(3) Make the test available only to a test taker, and then only
during a regularly scheduled test, and will collect the test from the
test taker after the test is given;
(4) Secure the test against disclosure or release; and
(5) Submit to the test publisher within two business days after
test administration, a copy of the test takers' performance and test
scores by either mailing a write-protected diskette copy of the scores
or electronically transmitting the scores through a memo.
(c) The test publisher shall terminate its agreement with a test
administrator immediately if the test publisher finds that the test
administrator--
(1) Has violated any of the provisions in paragraphs (b)(1) through
(b)(4) of this section; or
(2) Has consistently violated the provisions of paragraphs (b)(5)
of this section.
(Authority: U.S.C. 1091(d))
Sec. 668.151 Agreement between the institution and a certified test
administrator.
(a) To establish a student's eligibility for Title IV, HEA program
assistance under this subpart, an institution must use an approved test
and must enter into a written agreement with a test administrator who
has been certified by the test publisher of that test to give that test
and is independent of the institution.
(b) Under the agreement--
(1) The institution shall agree not to--
(i) Compromise test security or testing procedures;
(ii) Pay test administrators bonuses or commissions or any other
incentives based upon test scores or pass rates; and
(iii) Interfere with the test administrator's independence or test
administration; and
(2) The test administrator shall agree to--
(i) Administer the test in accordance with instructions provided by
the test publisher;
(ii) Administer the tests in a manner that ensures his or her
independence and the integrity and security of the test; and
(iii) Upon request, give the Secretary, guaranty agency, licensing
agency, SPRE, accrediting agency, and law enforcement agencies access
to test records or other documents related to an audit, investigation,
or program review of the institution, or test publisher.
(c) Except as provided in paragraph (d) of this section, the
Secretary considers a test administrator to be independent of an
institution if the test administrator--
(1) Has no current or prior financial 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) Has no current or prior ownership interest in the institution,
its affiliates, or its parent corporation;
(3) Is not a current or former employee of or consultant to the
institution, its affiliates, or its parent corporation or is not a
person in control of another institution, or a member of the family of
any of these individuals;
(4) 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
(5) Is not a current or former student of the institution.
(d)(1) The Secretary considers that a test administrator at an
assessment center is independent of an institution.
(2) For purposes of this section, an approved test administered at
a testing or assessment center at a degree-granting public institution
or a public vocational institution is considered to be independently
administered.
(e) The institution shall terminate its relationship with a test
administrator immediately if the institution learns that the test
administrator violated any provisions of this subpart.
(Authority: U.S.C. 1091(d))
Sec. 668.152 Administration of tests.
(a) In order for test results of an approved test to be considered
in determining a student's eligibility under the Title IV, HEA
programs, the test must have been properly administered.
(b) The Secretary considers an approved test to be properly
administered with regard to a student if it is
--(1) Given by a certified test administrator who--
(i) Has an agreement with the test publisher and the institution
the student is attending or planning to attend who satisfies the
requirements of this subpart; and
(ii) Is independent of the institution that student is attending or
planning to attend;
(2) Administered in accordance with the test publisher's
requirements and the requirements of this subpart; and
(3) Scored by the test publisher except that a test administrator
at an assessment center may score a test.
(c) Students must receive passing scores on both verbal and
quantitative tests or sub-tests as approved by the Secretary.
(d) A student who fails to pass an independently administered test
approved by the Secretary may not retake that same form of the test for
the period prescribed by the test publisher of that test.
(e) The institution will maintain a record for each affected
student, indicating the test taken by the student, the date of the
test, and the student's scores as reported by the test publisher.
(Authority: U.S.C. 1091(d))
Sec. 668.153 Administration of tests for students whose native
language is not English or for persons with disabilities.
(a) Students whose native language is not English. For a student
whose native language is not English and who is not fluent in English,
the institution shall use the following tests, as applicable:
(1) If the student is enrolled program conducted entirely in his or
her native language, the student must take a test approved under
Secs. 668.145 and 668.147(a)(2), or 668.148(b).
(2) If the student is enrolled in a program that is taught in
English with an ESL component, and the student is enrolled in that
program and the ESL component, the student must take either an ESL test
approved under Sec. 668.147(b), or a test in the student's native
language approved under Sec. 668.145, 668.147 or 668.148.
(3) If the student is enrolled in a program that is taught in
English without an ESL component, or the student does not enroll in the
ESL component if the institution offers such a component, the student
must take a test in English approved under Sec. 668.145.
(4) If the student enrolls in an ESL program, the student must take
an ESL test approved under Sec. 668.147(b).
(b) Persons with disabilities. (1) An institution shall use a test
described in Secs. 668.147(a)(3) or 668.148(a) for a student with a
documented impairment who has neither a high school diploma nor its
equivalent and who is applying for Title IV, HEA program funds.
(2) The test must reflect the student's skills, knowledge, and
general learned abilities rather than reflect the student's impairment.
(3) The institution shall document that a student is disabled and
unable to be evaluated by the use of a conventional test from the list
of tests approved by the Secretary.
(4) Documentation of a student's impairment may be satisfied by--
(i) A written determination including a diagnosis and recommended
testing accommodations by a licensed psychologist or medical physician;
or
(ii) A record of such a determination by an elementary or secondary
school or a vocational rehabilitation agency including a diagnosis and
recommended testing accommodations.
(Authority: U.S.C. 1091(d))
Sec. 668.154 Institutional accountability.
An institution shall be liable for the Title IV, HEA program funds
disbursed to a student whose eligibility is determined under this
subpart if the institution--
(a) Used a test administrator who is not independent of the
institution;
(b) Violates its agreement with a test administrator;
(c) In any way compromises the testing process; or
(d) Is unable to document that the student received a passing score
on an approved test as specified under Sec. 668.149(b)(7).
(Authority: U.S.C. 1091(d))
Sec. 668.155 Approved State process.
(a)(1) A State that wishes the Secretary to consider its State
process as an alternative to achieving a passing score on an approved,
independently administered test for the purpose of determining a
student's eligibility for Title IV, HEA program funds must apply to the
Secretary for approval of that process.
(2) To be an approved State process, the State process does not
have to include all the institutions located in that State.
(b) The Secretary approves a State's process if--
(1) The State administering the process can demonstrate that the
students it admits under that process without a high school diploma or
its equivalent, who enroll in participating institutions have a success
rate as determined under paragraph (h) of this section, that is within
95 percent of the success rate of students with high school diplomas;
and
(2) The State's process satisfies the requirements contained in
paragraphs (c) and (d) of this section.
(c) A State process must require institutions participating in the
process to provide each student they admit without a high school
diploma or its recognized equivalent with the following services--
(1) Orientation regarding the institution's academic standards and
requirements, and student rights;
(2) Assessment of each student's existing capabilities through
means other than a single standardized test;
(3) Tutoring in basic verbal and quantitative skills, if
appropriate;
(4) Assistance in developing educational goals;
(5) Counseling, including counseling regarding the appropriate
class level for that student given the student's individual's
capabilities; and
(6) Follow-up by teachers and counselors regarding the student's
classroom performance and satisfactory progress toward program
completion.
(d) A State process must--
(1) Monitor on an annual basis each participating institution's
compliance with the requirements and standards contained in the State's
process;
(2) Require corrective action if an institution is found to be in
noncompliance with the State process requirements; and
(3) Terminate an institution from the State process if the
institution refuses or fails to comply with the State process
requirements.
(e)(1) The Secretary responds to a State's request for approval of
its State's process within six months after the Secretary's receipt of
that request. If the Secretary does not respond by the end of six
months, the State's process becomes effective.
(2) An approved State process shall become an effective alternative
to determine a student's eligibility for Title IV, HEA program funds
under this subpart six months after the date on which the State submits
the process to the Secretary for approval, if the Secretary approves
the process.
(f) The Secretary approves a State process for a period not to
exceed five years.
(g)(1) The Secretary withdraws approval of a State process if the
Secretary determines that the State process violated any terms of this
section or that the information that the State submitted as a basis for
approval of the State process was inaccurate.
(2) The Secretary provides a State with the opportunity to contest
a finding that the State process violated any terms of this section or
that the information that the State submitted as a basis for approval
of the State process was inaccurate.
(h) The State shall calculate the success rates as referenced in
paragraph (b) of this section by--
(1) Determining the number of students with high school diplomas
who, during the applicable award year described in paragraph (i) of
this section, enrolled in participating institutions and--
(i) Successfully completed education or training programs; or
(ii) Remained enrolled in education or training programs at the end
of that award year;
(2) Determining the number of students with high school diplomas
who enrolled in education or training programs in participating
institutions during that award year;
(3) Determining the number of students calculated in paragraph
(h)(2) of this section who remained enrolled after subtracting the
number of students who subsequently withdrew or were expelled from
participating institutions and received a 100 percent refund of their
tuition under the institutions' refund policies;
(4) Dividing the number of students determined in paragraph (h)(1)
of this section by the number of students determined in paragraph
(h)(3) of this section;
(5) Making the calculations described in paragraphs (h)(1) through
(h)(4) of this section for students without a high school diploma or
its recognized equivalent who enrolled in participating institutions.
(i) For purposes of paragraph (h) of this section, the applicable
award year is the latest complete award year for which information is
available that immediately precedes the date on which the State
requests the Secretary to approve its State process, except that the
award year selected must be one of the latest two completed award years
preceding that application date.
(Authority: 20 U.S.C. 1091(d))
Note: This appendix will not appear in the Code of Federal
Regulations.
Appendix A to Preamble
Ability-to-Benefit (ATB)--Summary of Discussions at Regional
Meetings
1. (a) How should the Secretary specify a passing score?
At three of the regional meetings, it was recommended that tests
be normed by different populations for students in different
educational programs. At two of the regional meetings, it was
recommended that test scores be those recommended by test
publishers. At one of the regional meetings, it was recommended that
test scores should be based on persistence data.
(b) How should ATB test validity for schools with testing
centers located on campus be addressed?
This issue was not addressed at any of the regional meetings.
(c) What criteria should be adopted to determine whether an ATB
test is independently administered?
This provision was only addressed at one of the regional
meetings where the consensus was that the current provisions as
outlined in the December 12, 1989 Federal Register notice are
sufficient.
2. (a) How should the Secretary determine whether a test is
independently administered?
The consensus at all four of the regional meetings was that the
Secretary should (1) continue to require the test examiner to
certify that the test was independently administered, and (2)
continue to permit testing centers at a school to administer tests
provided that the testing center is separate from the admissions and
financial aid process.
(b) What standards should be established for the development,
administration, and scoring of examinations?
This issue was only addressed at two of the regional meetings.
The consensus at one of the regional meetings was that a test should
determine both a student's quantitative and verbal skill levels. The
consensus at the other regional meeting was that tests should be
reviewed for test biases, such as ethnicity, native language, and
disability.
3. How often must a state submit ATB plans?
At three of the regional meetings, the consensus was that a
state should only have to submit a plan once and then be required to
resubmit it if the process changed. The consensus at the other
regional meeting was that a state should have to submit its plan
every 5 years at a minimum.
4. What factors should the Secretary use to evaluate the
effectiveness of a state plan?
The consensus in all of the regional meetings was that the
Secretary should consider such factors as retention, graduation and
placement rates, and other relevant measures in evaluating the
effectiveness of a state plan.
[FR Doc. 94-20138 Filed 8-15-94; 8:45 am]
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