FR Doc 08-69
[Federal Register: January 14, 2008 (Volume 73, Number 9)]
[Rules and Regulations]
[Page 2305-2324]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja08-13]
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Part II
Department of Education
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34 CFR Part 462
Measuring Educational Gain in the National Reporting System for Adult
Education; Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 462
RIN 1830-ZA06
Measuring Educational Gain in the National Reporting System for
Adult Education
AGENCY: Office of Vocational and Adult Education, Department of
Education.
ACTION: Final regulations.
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SUMMARY: The Secretary establishes procedures for determining the
suitability of tests for use in the National Reporting System for Adult
Education (NRS). These final regulations also include procedures that
States and local eligible providers must follow when using suitable
tests for NRS reporting.
DATES: These regulations are effective February 13, 2008.
The incorporation by reference of certain publications listed in
the rule is approved by the Director of the Federal Register as of
February 13, 2008. However, affected parties do not have to comply with
the information collection requirements in Sec. Sec. 462.10, 462.11,
462.12, 462.13, and 462.14 until the Department of Education publishes
in the Federal Register the control number assigned by the Office of
Management and Budget (OMB) to these information collection
requirements. Publication of the control number notifies the public
that OMB has approved these information collection requirements under
the Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: Mike Dean, U.S. Department of
Education, 400 Maryland Avenue, SW., Room 11152, Potomac Center Plaza,
Washington, DC 20202-7240. Telephone: (202) 245-7828 or via Internet:
Mike.Dean@ed.gov.
If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION: These final regulations further the
Department's implementation of section 212 of the Adult Education and
Family Literacy Act (Act), 20 U.S.C. 9201 et seq., which establishes a
system to assess the effectiveness of eligible agencies in achieving
continuous improvement of adult education and literacy activities.
On October 18, 2006, the Secretary published a notice of proposed
rulemaking (NPRM) for 34 CFR part 462 in the Federal Register (71 FR
61580). In the preamble to the NPRM, the Secretary discussed on pages
61581 and 61582 the significant proposed regulations. As a result of
public comment, these final regulations contain several significant
changes from the NPRM. While we fully explain these changes in the
Analysis of Comments and Changes section elsewhere in these
regulations, they are summarized as follows:
Rather than immediately establishing, in Sec. 462.4, a
deadline for State and local eligible providers to stop using tests
that are currently listed in the Implementation Guidelines: Measures
and Methods for the National Reporting System for Adult Education
(Guidelines), the Secretary will announce a deadline in a notice
published in the Federal Register after reviewing the first group of
tests submitted under these regulations.
On April 14, 2008, the Secretary will provide test
publishers the first opportunity to submit tests for review under these
final regulations. In subsequent years, in accordance with Sec.
462.10(b), test publishers must submit applications to the Secretary by
October 1 of each year.
We have revised several sections of the regulations to
distinguish between (1) traditional tests, which use items that have
been generated before the test is administered, and (2) computerized
tests, which use an algorithm to select test items while the test is
being administered. The changes affect Sec. Sec. 462.3(b) regarding
the definition of test, 462.11 regarding the information that must be
included in a test publisher's application, 462.12 and 462.13 regarding
the Secretary's review of tests, and 462.41 regarding the
administration of tests.
Section 462.12(e) has been revised to clarify that test
publishers can request that the Secretary reconsider a decision to
revoke a determination that a test is suitable before the Secretary
makes a final determination about the test's suitability for measuring
educational gain for the NRS.
Through these final regulations, we formalize the process for the
review and approval of tests for use in the NRS. We believe that the
uniform process in these regulations will facilitate test publishers'
submissions of tests to the Department for review and will help
strengthen the integrity of the NRS as a critical tool for measuring
State performance on accountability measures. This process also will
provide a means for examining tests that are currently approved for use
in the NRS, but that have not been updated recently and, therefore,
need to be reassessed for their continuing validity.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 13 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM follows.
We group and discuss issues under the sections of the regulations
to which they pertain, with the appropriate sections of the regulations
referenced in parentheses. Generally, we do not address technical and
minor changes--and suggested changes the law does not authorize the
Secretary to make.
General Comment
Comments: A commenter stated that, because each State uses its own
curriculum frameworks, the validity of a particular test may vary to
the extent that the test aligns with a State's curricula. The
commenter, therefore, stated that the Department could not approve a
test for use in all States without evaluating its validity for each
State that uses it.
Discussion: We agree that not all States can use any single test.
States are expected to select a suitable test or tests that best align
with their particular curricula. If a State's curriculum is not aligned
with an existing test, the State will need to develop its own test
aligned with the State curriculum and submit the test to the Department
for review under these final regulations.
Changes: None.
Definitions
Adult Education (Sec. 462.3)
Comments: A commenter stated that the proposed regulations
incorrectly defined adult education. The commenter noted that the
regulations refer to students ``who are not enrolled in secondary
school'' while the Act refers to students ``who are not enrolled or
required to be enrolled in secondary school under State law.'' The
commenter recommended using the definition in the Act.
Discussion: Section 462.3(a) indicates that certain terms used in
the regulations, including adult education, are defined in section 203
of the Act. The language the commenter quotes is from the definition of
adult education population in Sec. 462.3(b), which is not defined in
the Act. Nevertheless, we agree that the two definitions should be
consistent.
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Changes: We have modified the definition of adult education
population to include individuals who are not required to be enrolled
in secondary school under State law in order to make it consistent with
the definition of adult education in the Act.
Content domains and skill areas (Sec. 462.3)
Comments: One commenter stated that the term skill areas should be
used consistently throughout the regulations, instead of the
regulations using this term interchangeably with the terms content
domain and content specifications.
Discussion: In drafting the proposed regulations, we used the terms
content domain and content specifications in the sections of the
regulations applicable to test publishers because those are terms of
art in the test publishing industry. Likewise, the term NRS skill areas
is used in the sections of the regulations that are applicable to
States and local eligible recipients because this is a term of art in
the adult education program. Although we used the term content
specifications in the proposed regulations, we did not include it as a
defined term. We think it is appropriate to do so in the final
regulations because the term has the same meaning as the terms content
domains and NRS skill areas.
Changes: We have modified the defined term, content domains or NRS
skill areas, in proposed Sec. 462.3 to also include the term content
specifications.
Test publisher (Sec. 462.3)
Comments: A few commenters expressed concern that the definition of
test publisher might be too restrictive and could prevent the review of
some tests. Commenters recommended expanding the definition to include
universities; adult education programs; other entities that possess
sufficient expertise and capacity to develop, document, and defend
assessments; entities in the process of copyrighting a test; and
entities holding an unregistered copyright to a test. One commenter
agreed that the Secretary should review only tests from test publishers
owning a registered copyright.
Discussion: The proposed regulations did not prohibit universities,
adult education programs, or other legitimate test developers from
submitting a test for review. We explained in the preamble to the NPRM
that entities submitting tests for the Secretary's review must be
knowledgeable about the test, be able to respond to technical questions
the Secretary raises during the review process, and have the legal
right to submit the test for review. With regard to the recommendation
to have the Secretary approve other entities who can submit a test for
review, it would be inappropriate and counter-productive for the
Secretary to determine the suitability of a test submitted for review
without the permission of the rightful owner of a registered copyright
of the test or the entity licensed by the copyright holder to sell or
distribute the test.
Changes: None.
June 30, 2008, deadline for transitioning to suitable tests (Sec.
462.4)
Comments: Several commenters expressed concern that States might
not have adequate time by the June 30, 2008, deadline to change
assessment instruments, particularly if the Secretary determines that a
test is no longer suitable for use in the NRS. The commenters stated
that States need time to rewrite assessment policies, select
replacement tests, retrain personnel, purchase materials, modify
complex data systems, and, possibly, hire special contractors to assist
with modifying those data systems. A different commenter stated that it
might take two years to implement a change in State assessment
instruments. Commenters recommended that the regulations permit a State
to negotiate a practical transition timeline with the Secretary.
Commenters also recommended that, because transitioning from
unsuitable tests places a burden on States' financial resources and
professional development capabilities, the regulations should be
deferred until the amount of funds available for State leadership
becomes 15 percent of the Federal allocation. One commenter indicated
that local programs often pay the significant cost of purchasing
assessment instruments and that replacing an entire assessment system
in a single budget year could devastate a local budget.
Discussion: Proposed Sec. 462.4 would have permitted States and
local eligible providers to continue to measure educational gain using
a test that was identified in the Guidelines until June 30, 2008.
However, we specifically asked for comments on whether this deadline
would provide sufficient time for States and local eligible recipients
to make the transition to suitable tests because we recognized that
changing tests significantly affects a State's accountability system.
Our intention in proposing the June 30, 2008, deadline was to ensure
that States stop using unsuitable tests on a date certain but still
provide enough time for (1) the Secretary to complete one review of
tests and (2) States and local eligible recipients to transition from
unsuitable tests to suitable tests. We also intended to impose a
deadline that would result in the efficient removal of unsuitable tests
from use in the NRS. Once the Secretary determines that a test is
unsuitable for use in the NRS, permitting States to continue using it
for long periods of time would be inconsistent with the Secretary's
intent to improve data quality.
While we understand the desire to defer implementation of the
regulations because of cost factors and timing constraints, improving
the quality of State accountability systems and the data reported by
the NRS is of immediate importance and should not be unduly delayed.
Adult Education and Family Literacy Programs, like other Federal
programs, must report on progress made, achievements, and overall
program effectiveness using valid and reliable measures of performance.
The regulations are designed to improve the reliability and validity of
data used to report the educational gains of students, and thereby
improve the reliability and validity of data on overall program
effectiveness.
In light of the commenters' concerns, and to accommodate States'
needs to make system revisions, provide training, and acquire tests, we
will not specify a date in these regulations by which States and local
eligible providers must cease using unsuitable tests; instead, we have
provided for the Secretary to announce this deadline in a notice
published in the Federal Register.
Changes: We have revised Sec. 462.4 to provide that the Secretary
will announce, through a notice in the Federal Register, a deadline by
which States and local eligible providers must stop using tests that
are currently listed in the Guidelines and that the Secretary has
determined not to be suitable for use in the NRS under these final
regulations.
Deadline for submitting tests for review by the Secretary (Sec.
462.10(b))
Comments: One commenter agreed that the regulations should provide
an annual deadline for test publishers to submit tests to the Secretary
for review. Other commenters requested clarification on when the review
cycle begins and ends. Another commenter asked if the first opportunity
to submit tests would be in 2007 or in 2008. Yet another commenter
suggested that the date for submission of tests be no sooner than two
months and no later than four months after the effective date of the
final regulations.
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Discussion: We are establishing April 14, 2008 as the first date by
which test publishers must submit tests for review under these
regulations. In subsequent years, test publishers must submit
applications to the Secretary by October 1 of each year. However,
because we cannot predict the number of tests that will be submitted
for review nor the amount of time it will take to review the tests, it
is not possible to predict how long the process will take from year to
year. We, therefore, do not think it is appropriate to establish a date
on which we will announce the results of the Secretary's review. We
will publish the list of suitable tests well before the program year in
which they might be used.
Changes: None.
Content of an application--General (Sec. 462.11)
Comments: A commenter responded positively to the regulations'
specific delineation of what an application for test review must
include. Another commenter asked whether test publishers must use a
form in addition to submitting the information outlined in proposed
Sec. 462.11(b) through (j). Another commenter stated that it may be
too constraining to require test publishers to arrange application
information in the order established by proposed Sec. 462.11(b)
through (j).
Discussion: To facilitate the review process, the regulations in
Sec. 462.11 describe the specific requirements for the contents of an
application. A test publisher is not required to submit any form or
information except as required in Sec. 462.11. We believe that
organizing the information in the application in the order presented in
Sec. 462.11(b) through (j) will help to ensure that information about
a test is easily available to and reviewable by the educational testing
and assessment experts who will review the tests; however, to provide
test publishers with some flexibility in organizing their applications,
we will permit them to include in their applications a table of
contents that identifies the location of the information requested in
Sec. 462.11(b) through (j).
Changes: We have revised Sec. 462.11(a)(3)(ii) to permit test
publishers to include a table of contents in their applications as an
alternative to presenting information in the application in the order
described in Sec. 462.11(b) through (j).
Content of an application--Involvement of the adult education
population (Sec. 462.11)
Comments: A commenter stated that proposed Sec. 462.11 would
generally require a test publisher to demonstrate that adult educators
have been involved in a test's development and maintenance, and that
some publishers would not meet that requirement easily. The commenter
also stated that compliance with the regulations would require
customized tests developed specifically for use in adult education,
which would increase the cost and exclude some quality assessments.
Discussion: The regulations do not require a test publisher to
demonstrate that adult educators have been involved in a test's
development and maintenance. We realize that tests developed for other
populations might not be suitable for use in the NRS because they were
not developed with the adult education population in mind and do not
readily measure the educational functioning levels used in the NRS. The
regulations are clear that the Secretary reviews tests to determine
their suitability for use in the NRS. For instance, Sec. 462.13(a)
indicates that, in order for the Secretary to consider a test suitable
for use in the NRS, the test must measure the NRS educational
functioning levels of members of the adult education population.
Accordingly, Sec. 462.11(c)(1)(ii) requires information that
demonstrates the extent to which the adult education population was
used to develop and evaluate a test, which is appropriate because the
tests will be used with that population.
Changes: None.
Content of an application--Motivation of examinees (Sec.
462.11(c)(1)(iii))
Comments: Two commenters were concerned that test publishers would
have to include information in the application on the motivation of
examinees used in the development of a test. One commenter indicated
that ``there is no generally accepted method for identifying and
classifying the degree and level of motivation of examinees.'' The
commenter stated that a test publisher could make some assumptions
about motivation, but indicated that the assumptions would be
subjective and not scientifically valid. The second commenter requested
clarification of the expectation that examinees would be motivated.
Discussion: The regulations only require test publishers to provide
in their applications information on the steps, if any, taken to ensure
that examinees were motivated while responding to the test. The
regulations do not require test publishers to take steps to ensure that
examinees were motivated while responding to the test. Further, if a
test publisher were to take such steps, the test publisher would not be
required to use any particular methodology for doing so.
Changes: None.
Content of an application--Item development (Sec. 462.11(c))
Comments: A commenter noted that the proposed regulations did not
require test publishers to include in their applications information on
item selection or form development for the test under review.
Discussion: The commenter's observation is correct and calls
attention to the need for the regulations to require test publishers to
include this information in their applications and for the regulations
to clarify the distinction between traditional tests, which use items
that have been generated before the test is administered, and those
that use a computerized algorithm to select test items while the test
is being administered.
Changes: We added a new paragraph (3) to Sec. 462.11(c) to require
test publishers to describe in their applications the procedures used
to assign items (1) to forms, for tests that are constructed prior to
being administered to examinees, or (2) to examinees, for adaptive
tests in which items are selected in real time.
Content of an application--Maintenance: history of test use (Sec.
462.11(d)(4))
Comments: A few commenters recommended that the regulations require
test publishers to include in their applications additional information
on the history of the test's use.
Discussion: The regulations require test publishers to provide
documentation of how a test is maintained, including a history of the
test's use. We are particularly interested in information on how many
times the test forms have been administered. This information is useful
in gauging how much the test forms have been exposed and the likelihood
of test items being compromised.
Changes: We have revised Sec. 462.11(d)(4) to clarify that
information submitted in the application regarding the history of a
test's use must include information on the number of times the test has
been administered.
Content of an application--Maintenance (Sec. 462.11(d)(5))
Comments: A commenter recommended that the regulations require test
publishers to include in their applications the procedures used for
computerized adaptive tests to select
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subsets of items for administration, determine the starting point and
termination conditions, score the tests, and control item exposure.
Discussion: We agree that requiring test publishers to provide the
recommended information will help experts to better assess the
suitability of computerized adaptive tests for use in the NRS.
Changes: We added a new paragraph (5) to Sec. 462.11(d) to require
test publishers to include in their applications for computerized
adaptive tests the information recommended by the commenter.
Content of an application--Match of content to the NRS educational
functioning levels (content validity) (Sec. 462.11(e)(2) and (4))
Comments: A few commenters asked if proposed Sec. 462.11(e)(2) and
(4) were requesting the same information, and sought clarification
regarding the difference between the paragraphs.
Discussion: The paragraphs are requesting the same information.
Changes: We have removed Sec. 462.11(e)(4) to eliminate the
duplicate information requirement and renumbered the remaining
paragraphs.
Content of an application--Procedures for matching scores to NRS
educational functioning levels (Sec. 462.11(f)(2))
Comments: A commenter stated that requiring the judgments of
subject-matter experts to translate an examinee's performance to the
examinee's standing with respect to the NRS educational functioning
levels might not prove fruitful and would substantially increase the
cost of test development. The commenter stated that determination of
score ranges and their fit to the existing NRS levels can be made based
on an analysis of skills being assessed and an intimate knowledge of
the assessment tools being used.
Discussion: Section 462.11(f) does not require the use of subject
matter experts. It requires test publishers to document the procedure
they use to translate the performance of an examinee to the examinee's
standing with respect to the NRS educational functioning levels. A test
publisher can choose the procedure it thinks is best. However, if a
test publisher chooses to use judgment-based procedures to translate
performance, the regulations require the publisher to provide
information on that procedure, including information concerning the
subject matter experts the test publisher used. Requiring this
information is consistent with accepted professional test development
and standard-setting procedures in the 1999 edition of the Standards
for Educational and Psychological Testing and will help test publishers
demonstrate the suitability of their tests for measuring educational
gain for the NRS.
Test scores are only useful in this context if they can accurately
classify individuals according to NRS levels. Therefore, it is
necessary for test publishers to demonstrate how the range of test
scores map onto the NRS levels and do so in a reliable and valid
fashion. In the test development process, developers need to show that
the range of test scores produced on their tests covers the range of
skills depicted in the NRS levels, and more importantly, shows which
range of scores corresponds to a specific NRS level.
Changes: None.
Content of an application--Reliability (Sec. 462.11(g))
Comments: A commenter noted that in discussing reliability the
proposed regulations used the phrase ``the correlation between raw or
number correct scores.'' The commenter noted that this phraseology is
not applicable to tests that use an adaptive structure or a multi-
parameter item response theory model. The commenter stated that, in
such situations, the particular items answered correctly, not the
number of items answered correctly, determine the score.
Discussion: We agree with the commenter that the phrase in the
regulations is not applicable to computerized adaptive tests.
Changes: We revised Sec. 462.11(g)(1) to require that, in the case
of computerized adaptive tests, test publishers document in their
applications the correlation between raw (or scale) scores across
alternate administrations of the test.
Comments: With regard to proposed Sec. 462.11(g)(2), a commenter
suggested that information about the number of individuals classified
into NRS levels would only provide useful data if the information were
submitted after the Department approved a test's scores-to-NRS-levels
crosswalk. The commenter stated that requiring this information prior
to test approval could produce information that is not meaningful.
Another commenter responded positively to the requirement for
``inclusion of information about decision/classification consistency.''
Discussion: We do not agree that the Department should approve the
rules a test publisher uses to transform the scores of a test into
estimates of examinees' NRS educational functioning levels prior to the
test publisher providing evidence that the transformation rules result
in reliable, i.e., consistent, educational functioning level
classifications. We believe that, when an application is submitted, a
test publisher should be able to provide documentation of the degree of
consistency in performance across different forms of the test,
particularly regarding which examinees are classified into the same NRS
educational functioning levels across different forms of the test. By
demonstrating that a test can consistently classify individuals into
the same NRS educational functioning levels across different forms of
the test, the test publisher assures the Department that assessments of
educational gain are the result of instruction and other interventions
to improve literacy, not measurement error. Without this demonstration
of classification consistency, reports of educational gain are
uninterpretable. This information is very important to determinations
about the suitability of a test and whether the test measures the NRS
educational functioning levels as required in Sec. 462.13(a).
Changes: None.
Content of an application--Construct validity (Sec. 462.11(h))
Comments: A commenter expressed concern that proposed Sec.
462.11(h) would have required the results of several studies on the
adult education population in connection with other tests designed to
assess educational gain, which can be useful and meaningful, but also
time-consuming and expensive. The commenter indicated that imposing
this requirement after, not before, test approval would permit test
publishers to collaborate and conduct the studies in a more cost-
effective manner. Further, the commenter stated that the requirement
could exclude some qualified assessments. The commenter recommended
that the regulations be rewritten so that (1) these studies would only
be required of tests that have been approved and (2) a five-year period
could be provided for conducting the studies.
Discussion: We do not agree that a test should be approved for use
in the NRS prior to the test publisher providing documentation of the
appropriateness of a test for measuring educational gain for the NRS,
i.e., documentation that the test measures what it is intended to
measure. Section 462.11(h) is consistent with the 1999 edition of the
Standards for Educational and Psychological Testing, which stresses the
importance of gathering evidence of the test's
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construct validity. The Secretary cannot determine whether a test is
suitable for use in the NRS without having evidence of the test's
construct validity.
Changes: None.
Content of an application--Construct validity (Sec. 462.11(h)(1))
Comments: A commenter expressed concern that proposed Sec.
462.11(h)(1) would have required test publishers to document the
appropriateness of a given test for measuring educational gain in the
NRS, including the correlation between the NRS test results and the
results of other tests that assess educational gain in the same adult
education population. The commenter stated that this comparison could
lead to faulty conclusions if the other test is not an accurate measure
of the construct.
Discussion: We believe that it is appropriate to look at test
correlations as one criterion for evaluating construct validity.
Generally, a test should correlate with other tests known to measure
the same construct, and it should not correlate (or have a very low
correlation) with tests known to measure different constructs. This
latter relationship depends upon the nature of the comparison
constructs. To the extent that the two constructs are theoretically
related, a correlation that approximates their theoretical relationship
is expected.
Changes: None.
Content of an application--Construct validity (Sec. 462.11(h)(2))
Comments: Two commenters stated that proposed Sec. 462.11(h)(2)
should be reconsidered because ``hours of instruction'' is not a
variable that correlates highly with test scores.
Discussion: Proposed Sec. 462.11(h)(2) would have required test
publishers to document that a test measures what it is intended to
measure, including the extent to which the raw or scale scores are
related to other relevant variables, such as hours of instruction or
other important process or outcome variables. While we are aware of
data establishing the relationship between Adult Basic Education (ABE)
test scores and hours of instruction, the reference to ``hours of
instruction'' in Sec. 462.11(h)(2) was only intended to provide an
example of a possibly relevant variable.
Changes: We have revised Sec. 462.11(h)(2) to clarify that ``hours
of instruction'' is an example of possibly relevant variables.
Content of an application--Other information (Sec. 462.11(i)(1))
Comments: A commenter requested clarification of the phrase ``an
analysis of the effects of time on performance'' used in proposed Sec.
462.11(i)(1). The commenter thought the phrase meant ``the effects of
the time it takes to administer the test or for a student to complete
it.''
Discussion: The commenter is correct. Section 462.11(i)(1) requires
an application to include a description of the manner in which test
administration time was determined and an analysis of the speededness
of the test. The term ``speededness'' as used in Sec. 462.11(i)(1)
refers to the effects on test performance that result from the time it
takes to administer or to complete the test.
Changes: We have revised Sec. 462.11(i)(1) to clarify that we
require both information on the manner in which test administration
time was determined and an analysis of the speededness of the test.
Content of an application--Other information (Sec. 462.11(i)(5))
Comments: A commenter requested clarification of the term
``retesting procedures'' used in proposed Sec. 462.11(i)(5). The
commenter asked if the term referred to ``pre- and post-testing.''
Discussion: The term ``retesting'' as used in Sec. 462.11(i)(5)
refers to the re-administration of a test that might be necessary
because of problems in the original administration (e.g., the test
taker becomes ill during the test and cannot finish, there are external
interruptions during testing, or there are administration errors).
Changes: We have revised Sec. 462.11(i)(5) to clarify that
``retesting'' refers to the re-administration of a test that might be
necessary because of problems in the original administration such as,
the test taker becomes ill during the test and cannot finish, there are
external interruptions during testing, or there are administration
errors.
Content of an application--Other information (Sec. 462.11(i)(6))
Comments: A commenter noted that proposed Sec. 462.11(i)(6) would
require test publishers to provide such other evidence as the Secretary
determines is necessary to establish the test's compliance with the
criteria and requirements in proposed Sec. 462.13. The commenter
requested clarification regarding what that evidence would be.
Discussion: While Sec. 462.11 includes the information we
anticipate the Secretary will need to determine whether a test is
suitable for use in the NRS, we recognize that the Secretary can
require a test publisher to provide additional information to establish
a test's compliance with the criteria and requirements in Sec. 462.13.
Section 462.11(i)(6) merely alerts test publishers to this possibility.
Changes: None.
Content of an application--Previous tests (Sec. 462.11(j))
Comments: A commenter asked if a test publisher submitting an
application for a test that is currently approved for use in the NRS
would have to provide the information in proposed Sec. 462.11(b)
through (i) or would have to provide only documentation of periodic
review of the content and specifications of the test as specified in
proposed Sec. 462.11(j)(1).
Discussion: As indicated in Sec. 462.11(a)(1), a test publisher
must include with its application information listed in paragraphs (b)
through (i) as well as the applicable information in paragraph (j). All
applications must, therefore, include the information in Sec.
462.11(b) through (i).
Changes: None.
Comments: A commenter requested clarification of the term
``periodic review'' used in proposed Sec. 462.11(j)(1) and (2) with
regard to the documentation that must be submitted for a previous test
to ensure that it continues to reflect NRS educational functioning
levels. The commenter asked if annual or bi-annual reviews constitute a
``periodic review,'' and suggested that the regulations use the term
``current review'' and specify the intervals for the reviews.
The commenter also suggested that the regulations address the
possibility that the NRS educational functioning levels might change.
The commenter stated that realigning tests to revised NRS educational
functioning levels would cause a burden for test publishers, and that
test publishers need at least one year advance notice of any proposed
changes in the NRS educational functioning levels.
Discussion: Section 462.11(j) requires test publishers to provide
specific information about currently used tests to ensure that the
tests continue to reflect NRS educational functioning levels. The
shorter the period of time between reviews of a test, the more relevant
the results would be in determining the test's content validity with
regard to NRS educational functioning levels. However, we are reluctant
to specify a time-frame for reviews because we do not want to create an
additional burden for test
[[Page 2311]]
publishers by requiring reviews more frequently than a test publisher
typically would perform.
With regard to providing advance notice to test publishers about
changes in the NRS educational functioning levels, in the past we have
customarily provided notice to all concerned parties, including test
publishers, well in advance of any changes to the NRS educational
functioning levels by posting notices on the Internet at http://www.nrsweb.org.
We intend to continue that practice and, because the
educational functioning levels are included in Sec. 462.44 of these
final regulations, will publish a notice of proposed rulemaking in the
Federal Register requesting comment on any proposed changes to Sec.
462.44.
Changes: None.
Comments: A commenter asked if the phrase ``previous tests used in
the NRS'' in proposed Sec. 462.11(j)(1) referred only to those tests
previously listed in the NRS Implementation Guidelines.
Discussion: The ``previous tests'' discussed in Sec. 462.11(j)(1)
are tests that were listed in the Guidelines and used to measure
educational gain in the NRS before the effective date of these final
regulations.
Changes: None.
Comments: A commenter requested clarification of the requirement in
proposed Sec. 462.11(j)(3) for test publishers to submit ``new data''
for tests that have not changed in the seven years since the Secretary
determined the tests were suitable for use in the NRS.
Discussion: The intent of Sec. 462.11(j) is to ensure that a test
publisher provides specific information about a test that has been in
use for years, but that has not changed in the seven years since the
Secretary determined the test was suitable for use in the NRS. In this
circumstance, the regulations require test publishers to provide new,
i.e., updated, data that support the validity of the test.
Changes: We have revised Sec. 462.11(j)(3) to clarify that test
publishers must provide updated data to support test validity.
Computerized tests (Sec. Sec. 462.3, 462.11(c)(3), 462.12(a)(2)(iii),
462.13(e), and 462.41(c)(3))
Comments: A commenter acknowledged that the proposed regulations
attempted to distinguish between traditional paper-based tests and
computerized tests. However, the commenter recommended that the
regulations be modified to clarify that the term ``parallel forms''
refers to ``paper-based tests or computerized tests that do not involve
an item selection algorithm, such as computerized adaptive tests,
multistage adaptive tests, or linear on-the-fly tests.'' The commenter
suggested specifically changing the proposed regulatory language from
``and have two or more secure, parallel, equated forms'' to ``and have
two or more secure, parallel forms if the test is produced before it is
administered to a learner (e.g., paper-based tests). If the test uses a
computerized algorithm for administering items in real time, the size
of the item pool and the method of item selection must ensure
negligible overlap in items across pre- and post-test.'' Another
commenter also emphasized the importance of recognizing computerized
tests.
Discussion: As we have discussed elsewhere in this notice, we agree
that the regulations should clarify the distinction between (1)
traditional tests, which use items that are generated before the test
is administered, and (2) computerized tests, which use an algorithm to
select test items while the test is being administered.
Changes: We have revised Sec. Sec. 462.3 (the definition of test),
462.11(c)(3), 462.12(a)(2)(iii), 462.13(e), and 462.41(c)(3) to provide
the clarification recommended by the commenters.
Tests that measure some, but not all, educational functioning levels
(Sec. Sec. 462.12(a)(2)(iv) and 462.13(b))
Comments: A commenter requested clarification on whether the
Secretary will review tests that currently measure only some, but not
all, educational functioning levels.
Discussion: The regulations provide for the Secretary to review
tests that measure some, but not all, educational functioning levels.
Sections 462.12(a)(2)(iv) and 462.13(b) indicate that the Secretary
reviews and determines the suitability of a test if an application
includes a test that samples one or more of the major content domains
of the NRS educational functioning levels of Adult Basic Education
(ABE), Adult Secondary Education (ASE), or English-As-A-Second Language
(ESL) with sufficient numbers of questions to represent adequately the
domain or domains. Further, Sec. 462.12(b)(2) provides flexibility for
the Secretary to determine that a test or a sub-test is suitable for
use in the NRS if it measures the content domain of some, but not all,
of the NRS educational functioning levels.
Changes: None.
Procedures the Secretary uses to review the suitability of tests (Sec.
462.12(b))
Comments: A commenter asked if the results of the Secretary's
review of a test would be posted for public review. Another commenter
suggested that the regulations should provide that test publishers be
notified at least 30 days before the Secretary notifies States and
local eligible providers that a test is unsuitable for use in the NRS.
With regard to tests that the Secretary determines are unsuitable, a
different commenter recommended that the regulations provide a time-
frame by which the Secretary would review any additional information
submitted by the test publisher and make a final determination.
Discussion: In accordance with Sec. 462.12(c)(2), the Secretary
will annually notify the public through a notice published in the
Federal Register and posted on the Internet at http://www.nrsweb.org of
tests that are suitable for use in the NRS. Under Sec. 462.12(e)(5),
the Secretary will follow the same procedure to notify the public when
a test that was previously determined suitable is determined to be
unsuitable. However, the Secretary will not post for public review the
Secretary's determination regarding a test that has not been previously
reviewed and that the Secretary determines to be unsuitable. We do not
believe this is necessary because the Secretary's determination
regarding these tests will not have an impact on the public, States, or
local eligible providers.
Proposed Sec. 462.12(d) provided that a test publisher would have
30 days to request that the Secretary reconsider the decision that a
test is unsuitable. Therefore, it will be after this 30-day period that
the Secretary will notify the public of a decision regarding a test.
Because it is impossible to anticipate the complexities that might
be involved in decisions regarding a test that was initially determined
to be unsuitable, we do not believe it would be appropriate to limit
the time the Secretary takes to review additional information provided
by a test publisher and make a final determination regarding the
suitability of a test. However, we intend to conduct the review as
expeditiously as possible.
Changes: None.
Publishing the list of suitable tests (Sec. 462.12(c))
Comments: A commenter suggested that if tests must be submitted for
review by October 1 of each year, the test publisher and adult
education programs should be informed of which
[[Page 2312]]
tests are approved no later than February 1 of the following year.
Discussion: Within a reasonable time-frame, the Secretary will
review tests, notify test publishers of the results of the review, and
provide States and local eligible providers with a list of suitable
tests. However, because we cannot predict the number of tests that will
be submitted for review nor the amount of time it will take to review
the tests, it is not possible to predict how long the process will take
from year to year. We, therefore, do not think it is appropriate to
establish a date by which we will announce the results of the
Secretary's review. We will publish the list of suitable tests well
before the program year in which they can be used.
Changes: None.
Revocation of determination that a test is suitable (Sec. 462.12(e))
Comments: A commenter suggested that test publishers be notified of
the Secretary's decision to revoke a determination that a test is
suitable before the Secretary notifies the general public. The
commenter stated that test publishers should be given sufficient time
to address the Secretary's concerns before the Secretary revokes the
determination that the test is suitable. This would provide a process
comparable to the process proposed for a test that the Secretary
determines is unsuitable.
Discussion: We agree that test publishers should have an
opportunity to address the Secretary's decision to revoke a
determination that a test is suitable before that determination becomes
a final decision.
Changes: We have revised Sec. 462.12(e) to give test publishers an
opportunity to request that the Secretary reconsider a decision to
revoke a determination that a test is unsuitable.
Comments: A commenter stated that proposed Sec. 462.14(b) was
unclear concerning the reasons a test's seven-year approval status
might be revoked.
Discussion: Section 462.12(e), not Sec. 462.14(b), establishes the
reasons for which the Secretary can revoke the determination regarding
the suitability of a test. In the proposed regulation, we stated that
the Secretary can revoke the determination if the Secretary determines
that the information submitted as a basis for the Secretary's review of
the test was inaccurate. In proposed Sec. 462.14(b), however, we
implied that the Secretary also could revoke a determination regarding
the suitability of a test if the test is substantially revised--for
example, by changing its structure, number of items, content
specifications, item types or sub-tests.
The proposed regulations were, therefore, unclear as to whether the
Secretary could revoke a determination about the suitability of a test
if the test had been substantially revised. We intended that revision
of a test would be a valid reason for revoking a determination about
test suitability.
Changes: We have revised Sec. 462.12(e) to clarify that
substantial changes to a test is one of the reasons the Secretary can
revoke a determination regarding the suitability of a test.
Criteria and requirements for determining test suitability (Sec.
462.13(c)(1), (d), and (f)(3) (proposed (g)(3))
Comments: A commenter noted that The Standards for Educational and
Psychological Testing referenced in Sec. 462.13(c) provides specific
guidelines for the technical documentation, including evidence of
validity that should be made available to interested parties. The
commenter recommended clarifying that publishers should provide the
Secretary with information regarding test development and validity.
Discussion: In proposed Sec. 462.13(c)(1), we indicated that, in
order for a test to be determined suitable for use in the NRS, the test
would have to meet all applicable and feasible standards for test
construction provided in The Standards for Educational and
Psychological Testing. We did not intend this language to imply that
the Secretary would review only information that is related to test
development. We agree with the commenter that validity is an important
factor in test evaluation and make it clear in Sec. 462.11(e) through
(g), that test publishers must include in their applications
information on content validity, reliability, and construct validity.
However, we think adding the reference to ``validity'' in Sec.
462.13(c)(1) will reinforce the importance of test publishers providing
information on validity.
Changes: We have revised Sec. 462.13(c)(1) to require a test to
meet all applicable and feasible standards for test construction and
validity that are provided in the Standards for Educational and
Psychological Testing.
Comments: A commenter noted that many factors influence the
appropriate time between testing and retesting, including intensity of
instruction, frequency and length of class meetings, and class size.
The commenter wanted to ``decrease the emphasis on a single protocol
for post-testing'' and suggested that, when discussing the time between
test-taking, the regulations use the term ``publisher's
recommendations'' instead of the term ``publisher's guidelines'' that
was used in proposed Sec. Sec. 462.13(d) and 462.40(c)(3)(ii).
Discussion: We do not agree that the term ``publisher's
guidelines'' emphasizes the use of a single protocol when determining
when to administer a post-test. State and local eligible providers,
like the commenter, are aware that many factors influence the
appropriate time between pre-testing and post-testing. These factors
are taken into consideration by test administrators at the local level.
However, because tests differ, test administrators rely on the
guidelines, developed during test construction and validation and
provided by test publishers, to help ensure that a sufficient amount of
time has passed before a post-test is given in order to optimize the
measurement of educational gains.
Changes: None.
Comments: A commenter requested clarification of Sec. 462.13(f)(3)
(proposed Sec. 462.13(g)(3)), which requires the publisher of a test
modified for an individual with a disability to recommend educational
functioning levels based on the previous performance of test-takers who
are members of the adult education population of interest to the NRS in
order for the Secretary to consider a test suitable for use.
Discussion: In order for the Secretary to consider a test that has
been modified for individuals with disabilities suitable for use in the
NRS, test publishers must (1) demonstrate that adult education students
with disabilities were included in the pilot or field test referred to
in Sec. 462.11(c)(1); (2) match scores to the NRS educational
functioning levels based on the information obtained from adult
education students with the disability who participated in the pilot or
field test and for whom the test has been adapted; and (3) provide in
the application, as required in Sec. 462.11(f), documentation of the
adequacy of the procedure used to translate the performance of adult
education students with the disability for whom the test has been
modified to an estimate of the examinees' standing with respect to the
NRS educational functional levels.
Changes: In response to the comment, we changed Sec. 462.13(f)(3)
to clarify that the Secretary considers a test modified for individuals
with disabilities suitable for use in the NRS if test publishers (1)
recommend educational functioning levels based on the information
obtained from adult education students who participated in the pilot or
field test and who have the disability for
[[Page 2313]]
which the test has been adapted and (2) provide documentation of the
adequacy of the procedure used to translate the performance of adult
education students with the disability for whom the test has been
modified to an estimate of the examinees' standing with respect to the
NRS educational functional levels.
Subpart D--General (Sec. Sec. 462.40-462.44)
Comments: Several commenters noted that the Department currently
provides non-regulatory guidance to States on the NRS. The commenters
asked why the Department is issuing regulations when most States comply
with and are successfully implementing the non-regulatory guidance and
the guidance provides each State with needed flexibility. The
commenters stated that ``as long as States are complying with
guidelines and meeting performance standards, we understand that the
Federal role is to limit regulations and allow the States to
continually increase their capabilities to improve program services.''
The commenters, therefore, recommended that subpart D be removed from
the final regulations and that the Secretary provide technical
assistance and resources to the few States that are having difficulty
creating effective assessment and data procedures. Additionally, one of
these commenters stated that while guidance is valued, regulations
sometimes seem arbitrary, intrusive, and unnecessary.
Discussion: It is the Department's policy to regulate only when
essential to promote quality, and then in the most flexible, most
equitable, and least burdensome way possible. We believe these
regulations comply with that policy. While the regulations in subpart D
are legally binding, they largely codify the guidance provided in the
Guidelines and the ``State Assessment Policy Guidance.'' Although
States have made significant progress, there remains variability in the
quality of State processes and procedures in the collection and
reporting of data on student assessment and performance. These
regulations, like the Guidelines, technical assistance activities, and
other efforts the Department has supported to improve data quality,
provide a significant tool to create a standard level of quality among
all States and thereby strengthen the integrity of the NRS as a
critical tool for measuring State performance and the impact of adult
education.
Changes: None.
Meaning of the term ``placement'' (Sec. Sec. 462.40(c)(4), (c)(6) and
(c)(10), 462.41(c)(3) (proposed), 462.42(a), (b)(2), and (c)(1),
(d)(1), and (d)(2), and 462.43(a)(2) and (b))
Comments: A few commenters stated that using the term ``placement''
in the regulations to mean the ``assignment of a student to the
appropriate NRS educational functioning level'' is confusing because
the traditional meaning of placement is ``placing a student in a
particular class or other instructional offering.'' Commenters noted
that tests designed for placement are different from those used to
measure educational gain.
Discussion: The regulations, like the Guidelines currently used by
States, use the terms ``place'' and ``placement'' as terms of art to
refer to the placement of students in NRS educational functioning
levels in order to measure and then report on educational gain in the
NRS. It is only within this context that the terms are used, and no
other meaning should be inferred.
Changes: None.
Placing students (Sec. 462.42(d)(1) and (2))
Comments: A commenter stated that placing a student in an NRS
educational functioning level using the lowest test score could result
in programs providing instruction in skill areas that are not most
relevant to the student. Further, the commenter stated that programs
(1) should not place students based on one test and (2) should be
allowed to use multiple placement tools and other pertinent
information, such as student goals, to determine placement. Another
commenter stated that all scores have some measurement error and that
instituting a policy of using the lowest test score might introduce
systematic, rather than random, measurement errors. This commenter also
indicated that the policy of using the lowest test score could
encourage programs to teach students only in an area where gain is to
be expected. The commenter stated that a better policy would be either
to focus on the learner's primary subject area at pre-test, or evaluate
gain based on a composite score across areas.
Discussion: With regard to placing a student using the lowest test
score when the student is tested in multiple skill areas, Sec.
462.42(d)(1) and (2) are consistent with the policy in the Guidelines,
which indicates: ``States should provide to local programs the criteria
for placing students at each educational functioning level, using test
scores from the initial assessment. Not all of the skill areas
described in the [functioning] level descriptors need to be used to
place students, but the skill used should be the areas most relevant to
the students' needs and the program's curriculum. If multiple skill
areas are assessed and the student has differing abilities in each
area, however, NRS policy requires that the program place the student
according to the lowest skill area.'' The Department's policy ensures
that States use a standardized approach when reporting educational
gain, which ensures comparability of data. These regulations use the
term ``placement'' as a term of art to refer to the placement of
students in NRS educational functioning levels in order to measure and
then report on educational gain in the NRS. Placement of a student in
an educational functioning level for NRS purposes does not affect
placement in an instructional program. States can use a variety of
tools when devising an instructional program for students. States and
local eligible providers know that using the lowest test score is a
convention used for reporting purposes and it is not intended to
encourage programs to teach students only in skill areas in which
students scored the lowest on tests or only in skill areas in which
gain is expected. The policy also is not intended to restrict the
number or type of assessments used to identify a student's needs and to
customize an instructional program to meet those needs. In fact,
programs are expected to teach students in multiple areas depending on
the students' needs and the programs' curricula.
We do not agree with the commenter that using the lowest test score
might introduce systematic, rather than random, measurement error.
Using the lowest test score in order to operationalize educational gain
in a consistent manner across States for reporting purposes is error
free. If tests have met the standards established in these regulations,
they should be able to assess skills at any level with minimum error.
Changes: None.
Measuring educational gain (Sec. 462.43)
Comments: A commenter suggested the Department measure significant
gain as determined by test developers. The commenter thought this
approach would be the most accurate measure of gain. The commenter
opposed the approach in proposed Sec. 462.43, stating that it would
only capture learning gain when a learner completes an educational
functioning level by crossing artificial cut points regardless of the
starting level. Another commenter stated that the approach for
measuring gain in Sec. 462.43 is ``too coarse, is likely
[[Page 2314]]
to capture only extreme gain, and will miss very significant
educational gains that occur within an EFL [educational functioning
level].'' The commenter suggested that the Department consider using
other options for demonstrating educational gain such as ``achieving a
gain score that is beyond chance expectations (using a scale score,
which is more reliable than a proficiency classification).'' Another
commenter stated that ``awarding only one educational gain to students
completing more than one educational functioning level to a high degree
misrepresents and under reports the effectiveness and accomplishment of
both adult teacher and learner.'' This commenter also stated that the
current NRS policy of reporting an educational gain for obtaining a
General Educational Development (GED) diploma by learners in ASE II,
but not to those in ABE or ASE I, misrepresents and under-reports
accomplishments. A different commenter suggested that attainment of a
GED diploma should be recognized as an educational gain.
Discussion: The approach for measuring educational gain in Sec.
462.43 is well established and accepted by the field. Over a two-year
period, the Department consulted with States and convened a statutorily
mandated panel in order to develop a performance accountability system
for the adult education program. During that time, consensus was
reached on defining the performance measures, including how to measure
educational gain. States and other participating entities agreed that
the approach in Sec. 462.43 is the most effective means of obtaining
accurate, reliable, and valid information on student performance.
Changes: None.
High Advanced ESL (Sec. 462.44)
Comments: Some commenters opposed proposed Sec. 462.44 because it,
like the Guidelines, eliminated the ``High Advanced ESL'' literacy
level from the Functioning Level Table. The commenters noted that the
change means that State and local agencies will no longer be able to
report educational gain for adult English language learners above the
``Advanced ESL'' literacy level or Student Performance Level (SPL) 6.
The commenters stated that, based on communications with the
Department's Office of Vocational and Adult Education (OVAE), the
change also means that programs can no longer provide ``High Advanced
ESL'' instruction in adult education programs. The commenters indicated
that OVAE has suggested that students who would have received ``High
Advanced ESL'' instruction should now complete their preparation by
moving from ESL classes to either adult basic education or adult
secondary education classes. The commenters expressed their belief that
OVAE's suggestion is pedagogically problematic and, more importantly,
would prevent programs from adequately addressing the learning needs of
ESL learners. Further, the commenters opposed stopping ESL instruction
at the ``Advanced ESL'' literacy level or SPL 6 because they believe
students at that level do not have language and literacy skills that
are sufficient to transition successfully to postsecondary education or
to meet the demands of the workplace--two of the purposes for adult
education that are cited in the Act. Commenters noted that the
regulations do not place this same restriction on native English
speakers and recommended that the ``High Advanced ESL'' literacy level
be restored to the Functioning Level Table. Finally, the commenters
recommended that the regulations provide States with flexibility and
not limit program services.
Discussion: Commenters are correct in that proposed Sec. 462.44
would codify a change in the Guidelines by eliminating the ``High
Advanced ESL'' literacy level from the Functioning Level Table. The
change was made in 2006 as part of the information collection request
for the Guidelines. However, before the change was made, (1) OVAE
consulted with Adult Education State Directors and (2) the Office of
Management and Budget (OMB) provided interested Federal agencies and
the public, including States and local eligible providers, an
opportunity to comment on the information collection request, which
included the removal of the ``High Advanced ESL'' literacy level from
the Functioning Level Table. We received no negative comments regarding
our intent to eliminate the ``High Advanced ESL'' literacy level, and
therefore, changed the Functioning Level Table in the Guidelines and in
the proposed regulations.
The change in the Functioning Level Table does not mean that adult
education programs can no longer provide services to ``High Advanced
ESL'' students. These regulations are consistent with the Act, which
authorizes services below the postsecondary level, and do not change
who can be served by adult education programs. The educational
functioning levels largely serve to classify students for reporting
purposes and should not be viewed as the standard for establishing the
type of instruction that can be provided. Placement of a student in an
educational functioning level for NRS purposes does not affect
placement in an instructional program. A student who scores above an
SPL 6 might still be served in adult education programs if he or she
has an educational need below the postsecondary level. States have the
flexibility to determine how programs are structured, how students are
placed in programs, and how instruction is delivered.
Changes: None.
Student Performance Levels (SPL) (Sec. 462.44)
Comments: A commenter requested clarification of the relationship
between the NRS literacy levels and SPLs in the Functioning Level
Table. The commenter indicated that no exact definition of SPL levels
is provided and, therefore, their relationship to the NRS levels is
unclear.
Discussion: The SPLs were developed by the Center for Applied
Linguistics to provide a standard description of adult refugees'
abilities at a range of levels and a common standard for ESL level
descriptions for use by programs nationwide. They are nationally
recognized in the adult ESL education community and represent a
standard metric for identifying skill levels of adult ESL students in
general language ability, listening comprehension, and oral
communication. The Functioning Level Table provides educational
functioning level descriptors for students at literacy levels in ABE,
ASE, and ESL. The literacy levels are divided into equivalent grade
levels for ABE and ASE and into SPLs for ESL. The descriptors
illustrate the types of skills students functioning at a given level
are likely to have. The descriptors do not provide a complete or
comprehensive delineation of all the skills at a particular level, but
instead, provide examples to guide assessment and instruction.
Changes: None.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those we have determined to
be necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations,
[[Page 2315]]
we have determined that the benefits of the regulations justify the
costs.
We have also determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
We discussed the potential costs and benefits of these final
regulations in the preamble to the NPRM under the headings Significant
Proposed Regulations (pages 61581 and 61582), Regulatory Flexibility
Act Certification (pages 61582 and 61583), and Paperwork Reduction Act
of 1995 (page 61583).
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. With the exception of Sec. Sec. 462.10 through 462.14, we
display the valid OMB control number assigned to the collection of
information in these final regulations at the end of the affected
sections of the regulations.
Intergovernmental Review
These regulations are subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism by relying on processes developed by State and local
governments for coordination and review of proposed Federal financial
assistance.
In accordance with the order, we intend this document to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Electronic Access to This Document
You can view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
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To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
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Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
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(Catalog of Federal Domestic Assistance Number does not apply.)
List of Subjects in 34 CFR Part 462
Administrative practice, Adult education, Grants program--
education, Incorporation by reference, and Reporting and recordkeeping
requirements.
Dated: January 7, 2008.
Margaret Spellings,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends title
34 of the Code of Federal Regulations by adding a new part 462 to read
as follows:
PART 462--MEASURING EDUCATIONAL GAIN IN THE NATIONAL REPORTING
SYSTEM FOR ADULT EDUCATION
Subpart A--General
Sec.
462.1 What is the scope of this part?
462.2 What regulations apply?
462.3 What definitions apply?
462.4 What are the transition rules for using tests to measure
educational gain for the National Reporting System for Adult
Education (NRS)?
Subpart B--What Process Does the Secretary Use To Review the
Suitability of Tests for Use in the NRS?
462.10 How does the Secretary review tests?
462.11 What must an application contain?
462.12 What procedures does the Secretary use to review the
suitability of tests?
462.13 What criteria and requirements does the Secretary use for
determining the suitability of tests?
462.14 How often and under what circumstances must a test be
reviewed by the Secretary?
Subpart C--[Reserved]
Subpart D--What Requirements Must States and Local Eligible Providers
Follow When Measuring Educational Gain?
462.40 Must a State have an assessment policy?
462.41 How must tests be administered in order to accurately measure
educational gain?
462.42 How are tests used to place students at an NRS educational
functioning level?
462.43 How is educational gain measured?
462.44 Which educational functioning levels must States and local
eligible providers use to measure and report educational gain in the
NRS?
Authority: 20 U.S.C. 9212, unless otherwise noted.
Subpart A--General
Sec. 462.1 What is the scope of this part?
The regulations in this part establish the--
(a) Procedures the Secretary uses to determine the suitability of
standardized tests for use in the National Reporting System for Adult
Education (NRS) to measure educational gain of participants in an adult
education program required to report under the NRS; and
(b) Procedures States and local eligible providers must follow when
measuring educational gain for use in the NRS.
(Authority: 20 U.S.C. 9212)
Sec. 462.2 What regulations apply?
The following regulations apply to this part:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 74 (Administration of Grants and Agreements with
Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations).
(2) 34 CFR part 76 (State-Administered Programs).
(3) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(4) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(5) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments).
(6) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(7) 34 CFR part 82 (New Restrictions on Lobbying).
(8) 34 CFR part 84 (Governmentwide Requirements for Drug-Free
Workplace (Financial Assistance)).
(9) 34 CFR part 85 (Governmentwide Debarment and Suspension
(Nonprocurement)).
(10) 34 CFR part 86 (Drug and Alcohol Abuse Prevention).
(11) 34 CFR part 97 (Protection of Human Subjects).
(12) 34 CFR part 98 (Student Rights in Research, Experimental
Programs, and Testing).
(13) 34 CFR part 99 (Family Educational Rights and Privacy).
[[Page 2316]]
(b) The regulations in this part 462.
(Authority: 20 U.S.C. 9212)
Sec. 462.3 What definitions apply?
(a) Definitions in the Adult Education and Family Literacy Act
(Act). The following terms used in these regulations are defined in
section 203 of the Adult Education and Family Literacy Act, 20 U.S.C.
9202 (Act):
Adult education,
Eligible provider,
Individual of limited English proficiency,
Individual with a disability,
Literacy.
(b) Other definitions. The following definitions also apply to this
part:
Adult basic education (ABE) means instruction designed for an adult
whose educational functioning level is equivalent to a particular ABE
literacy level listed in the NRS educational functioning level table in
Sec. 462.44.
Adult education population means individuals--
(1) Who are 16 years of age or older;
(2) Who are not enrolled or required to be enrolled in secondary
school under State law; and
(3) Who--
(i) Lack sufficient mastery of basic educational skills to enable
the individuals to function effectively in society;
(ii) Do not have a secondary school diploma or its recognized
equivalent, and have not achieved an equivalent level of education; or
(iii) Are unable to speak, read, or write the English language.
Adult secondary education (ASE) means instruction designed for an
adult whose educational functioning level is equivalent to a particular
ASE literacy level listed in the NRS educational functioning level
table in Sec. 462.44.
Content domains, content specifications, or NRS skill areas mean,
for the purpose of the NRS, reading, writing, and speaking the English
language, numeracy, problem solving, English language acquisition, and
other literacy skills as defined by the Secretary.
Educational functioning levels mean the ABE, ASE, and ESL literacy
levels, as provided in Sec. 462.44, that describe a set of skills and
competencies that students demonstrate in the NRS skill areas.
English-as-a-second language (ESL) means instruction designed for
an adult whose educational functioning level is equivalent to a
particular ESL literacy level listed in the NRS educational functioning
level table in Sec. 462.44.
Guidelines means the Implementation Guidelines: Measures and
Methods for the National Reporting System for Adult Education (also
known as NRS Implementation Guidelines) posted on the Internet at:
http://www.nrsweb.org. A copy of the Guidelines is also available from
the U.S. Department of Education, Division of Adult Education and
Literacy, 400 Maryland Avenue, SW., room 11159, Potomac Center Plaza,
Washington, DC 20202-7240.
Local eligible provider means an ``eligible provider'' as defined
in the Act that operates an adult education program that is required to
report under the NRS.
State means ``State'' and ``Outlying area'' as defined in the Act.
Test means a standardized test, assessment, or instrument that has
a formal protocol on how it is to be administered. These protocols
include, for example, the use of parallel, equated forms, testing
conditions, time allowed for the test, standardized scoring, and the
amount of instructional time a student needs before post-testing.
Violation of these protocols often invalidates the test scores. Tests
are not limited to traditional paper and pencil (or computer-
administered) instruments for which forms are constructed prior to
administration to examinees. Tests may also include adaptive tests that
use computerized algorithms for selecting and administering items in
real time; however, for such instruments, the size of the item pool and
the method of item selection must ensure negligible overlap in items
across pre- and post-testing.
Test administrator means an individual who is trained to administer
tests the Secretary determines to be suitable under this part.
Test publisher means an entity, 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. 9202, 9212)
Sec. 462.4 What are the transition rules for using tests to measure
educational gain for the National Reporting System for Adult Education
(NRS)?
A State or a local eligible provider may continue to measure
educational gain for the NRS using a test that was identified in the
Guidelines until the Secretary announces through a notice published in
the Federal Register a deadline by which States and local eligible
providers must use only tests that the Secretary has reviewed and
determined to be suitable for use in the NRS under this part.
(Approved by the Office of Management and Budget under control
number 1830-0027)
(Authority: 20 U.S.C. 9212)
Subpart B--What Process Does the Secretary Use To Review the
Suitability of Tests for Use in the NRS?
Sec. 462.10 How does the Secretary review tests?
(a) The Secretary only reviews tests under this part that are
submitted by a test publisher.
(b) A test publisher that wishes to have the suitability of its
test determined by the Secretary under this part must submit an
application to the Secretary, in the manner the Secretary may
prescribe, by April 14, 2008, and, thereafter, by October 1 of each
year.
(Authority: 20 U.S.C. 9212)
Sec. 462.11 What must an application contain?
(a) Application content and format. In order for the Secretary to
determine whether a standardized test is suitable for measuring the
gains of participants in an adult education program required to report
under the NRS, a test publisher must--
(1) Include with its application information listed in paragraphs
(b) through (i) of this section, and, if applicable, the information
listed in paragraph (j) of this section;
(2) Provide evidence that it holds a registered copyright of a test
or is licensed by the copyright holder to sell or distribute a test.
(3)(i) Arrange the information in its application in the order it
is presented in paragraphs (b) through (j) of this section; or
(ii) Include a table of contents in its application that identifies
the location of the information required in paragraphs (b) through (j)
of this section.
(4) Submit to the Secretary three copies of its application.
(b) General information. (1) A statement, in the technical manual
for the test, of the intended purpose of the test and how the test will
allow examinees to demonstrate the skills that are associated with the
NRS educational functioning levels in Sec. 462.44.
(2) The name, address, e-mail address, and telephone and fax
numbers of a contact person to whom the Secretary may address
inquiries.
(3) A summary of the precise editions, forms, levels, and, if
applicable, sub-tests and abbreviated tests that the test publisher is
requesting that the Secretary review and determine to be suitable for
use in the NRS.
(c) Development. Documentation of how the test was developed,
including a description of--
(1) The nature of samples of examinees administered the test during
pilot or field testing, such as--
[[Page 2317]]
(i) The number of examinees administered each item;
(ii) How similar the sample or samples of examinees used to develop
and evaluate the test were to the adult education population of
interest to the NRS; and
(iii) The steps, if any, taken to ensure that the examinees were
motivated while responding to the test; and
(2) The steps taken to ensure the quality of test items or tasks,
such as--
(i) The extent to which items or tasks on the test were reviewed
for fairness and sensitivity; and
(ii) The extent to which items or tasks on the test were screened
for the adequacy of their psychometric properties.
(3) The procedures used to assign items to--
(i) Forms, for tests that are constructed prior to being
administered to examinees; or
(ii) Examinees, for adaptive tests in which items are selected in
real time.
(d) Maintenance. Documentation of how the test is maintained,
including a description of--
(1) How frequently, if ever, new forms of the test are developed;
(2) The steps taken to ensure the comparability of scores across
forms of the test;
(3) The steps taken to maintain the security of the test;
(4) A history of the test's use, including the number of times the
test has been administered; and
(5) For a computerized adaptive test, the procedures used to--
(i) Select subsets of items for administration;
(ii) Determine the starting point and termination conditions;
(iii) Score the test; and
(iv) Control for item exposure.
(e) Match of content to the NRS educational functioning levels
(content validity). Documentation of the extent to which the items or
tasks on the test cover the skills in the NRS educational functioning
levels in Sec. 462.44, including--
(1) Whether the items or tasks on the test require the types and
levels of skills used to describe the NRS educational functioning
levels;
(2) Whether the items or tasks measure skills that are not
associated with the NRS educational functioning levels;
(3) Whether aspects of a particular NRS educational functioning
level are not covered by any of the items or tasks;
(4) The procedures used to establish the content validity of the
test;
(5) The number of subject-matter experts who provided judgments
linking the items or tasks to the NRS educational functioning levels
and their qualifications for doing so, particularly their familiarity
with adult education and the NRS educational functioning levels; and
(6) The extent to which the judgments of the subject matter experts
agree.
(f) Match of scores to NRS educational functioning levels.
Documentation of the adequacy of the procedure used to translate the
performance of an examinee on a particular test to an estimate of the
examinee's standing with respect to the NRS educational functioning
levels in Sec. 462.44, including--
(1) The standard-setting procedures used to establish cut scores
for transforming raw or scale scores on the test into estimates of an
examinee's NRS educational functioning level;
(2) If judgment-based procedures were used--
(i) The number of subject-matter experts who provided judgments,
and their qualifications; and
(ii) Evidence of the extent to which the judgments of subject-
matter experts agree;
(3) The standard error of each cut score, and how it was
established; and
(4) The extent to which the cut scores might be expected to differ
if they had been established by a different (though similar) panel of
experts.
(g) Reliability. Documentation of the degree of consistency in
performance across different forms of the test in the absence of any
external interventions, including--
(1) The correlation between raw (or scale) scores across alternate
forms of the test or, in the case of computerized adaptive tests,
across alternate administrations of the test;
(2) The consistency with which examinees are classified into the
same NRS educational functioning levels across forms of the test.
Information regarding classification consistency should be reported for
each NRS educational functioning level that the test is being
considered for use in measuring;
(3) The adequacy of the research design leading to the estimates of
the reliability of the test, including--
(i) The size of the sample(s);
(ii) The similarity between the sample(s) used in the data
collection and the adult education population; and
(iii) The steps taken to ensure the motivation of the examinees;
and
(4) Any other information explaining the methodology and procedures
used to measure the reliability of the test.
(h) Construct validity. Documentation of the appropriateness of a
given test for measuring educational gain for the NRS, i.e.,
documentation that the test measures what it is intended to measure,
including--
(1) The extent to which the raw or scale scores and the educational
functioning classifications associated with the test correlate (or
agree) with scores or classifications associated with other tests
designed or intended to assess educational gain in the same adult
education population as the NRS;
(2) The extent to which the raw or scale scores are related to
other relevant variables, such as teacher evaluation, hours of
instruction, or other measures that may be related to test performance;
(3) The adequacy of the research designs associated with these
sources of evidence (see paragraph (g)(3) of this section); and
(4) Other evidence demonstrating that the test measures gains in
educational functioning resulting from adult education and not from
other construct-irrelevant variables, such as practice effects.
(i) Other information. (1) A description of the manner in which
test administration time was determined, and an analysis of the
speededness of the test.
(2) Additional guidance on the interpretation of scores resulting
from any modifications of the tests for an individual with a
disability.
(3) The manual provided to test administrators containing
procedures and instructions for test security and administration.
(4) A description of the training or certification required of test
administrators and scorers by the test publisher.
(5) A description of retesting (e.g., re-administration of a test
because of problems in the original administration such as the test
taker becomes ill during the test and cannot finish, there are external
interruptions during testing, or there are administration errors)
procedures and the analysis upon which the criteria for retesting are
based.
(6) Such other evidence as the Secretary may determine is necessary
to establish the test's compliance with the criteria and requirements
the Secretary uses to determine the suitability of tests as provided in
Sec. 462.13.
(j) Previous tests. (1) For a test used to measure educational gain
in the NRS before the effective date of these regulations that is
submitted to the Secretary for review under this part, the test
publisher must provide documentation of periodic review of the content
and specifications of the test to ensure that the test continues to
reflect NRS educational functioning levels.
[[Page 2318]]
(2) For a test first published five years or more before the date
it is submitted to the Secretary for review under this part, the test
publisher must provide documentation of periodic review of the content
and specifications of the test to ensure that the test continues to
reflect NRS educational functioning levels.
(3) For a test that has not changed in the seven years since the
Secretary determined, under Sec. 462.13, that it was suitable for use
in the NRS that is again being submitted to the Secretary for review
under this part, the test publisher must provide updated data
supporting the validity of the test for use in classifying adult
learners with respect to the NRS educational functioning levels and the
measurement of educational gain as defined in Sec. 462.43 of this
part.
(4) If a test has been substantially revised--for example by
changing its structure, number of items, content specifications, item
types, or sub-tests--from the most recent edition reviewed by the
Secretary under this part, the test publisher must provide 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 results from validity,
reliability, and equating or standard-setting studies undertaken
subsequent to the revisions.
(Authority: 20 U.S.C. 9212)
Sec. 462.12 What procedures does the Secretary use to review the
suitability of tests?
(a) Review. (1) When the Secretary receives a complete application
from a test publisher, the Secretary selects experts in the field of
educational testing and assessment who possess appropriate advanced
degrees and experience in test development or psychometric research, or
both, to advise the Secretary on the extent to which a test meets the
criteria and requirements in Sec. 462.13.
(2) The Secretary reviews and determines the suitability of a test
only if an application--
(i) Is submitted by a test publisher;
(ii) Meets the deadline established by the Secretary;
(iii) Includes a test that--
(A) Has two or more secure, parallel, equated forms of the same
test--either traditional paper and pencil or computer-administered
instruments--for which forms are constructed prior to administration to
examinees; or
(B) Is an adaptive test that uses computerized algorithms for
selecting and administering items in real time; however, for such an
instrument, the size of the item pool and the method of item selection
must ensure negligible overlap in items across pre- and post-testing;
(iv) Includes a test that samples one or more of the major content
domains of the NRS educational functioning levels of ABE, ESL, or ASE
with sufficient numbers of questions to represent adequately the domain
or domains; and
(v) Includes the information prescribed by the Secretary, including
the information in Sec. 462.11 of this part.
(b) Secretary's determination. (1) The Secretary determines whether
a test meets the criteria and requirements in Sec. 462.13 after taking
into account the advice of the experts described in paragraph (a)(1) of
this section.
(2) For tests that contain multiple sub-tests measuring content
domains other than those of the NRS educational functioning levels, the
Secretary determines the suitability of only those sub-tests covering
the domains of the NRS educational functioning levels.
(c) Suitable tests. If the Secretary determines that a test
satisfies the criteria and requirements in Sec. 462.13 and, therefore,
is suitable for use in the NRS, the Secretary--
(1) Notifies the test publisher of the Secretary's decision; and
(2) Annually publishes in the Federal Register and posts on the
Internet at http://www.nrsweb.org a list of the names of tests and the
educational functioning levels the tests are suitable to measure in the
NRS. A copy of the list is also available from the U.S. Department of
Education, Office of Vocational and Adult Education, Division of Adult
Education and Literacy, 400 Maryland Avenue, SW., room 11159, Potomac
Center Plaza, Washington, DC 20202-7240.
(d) Unsuitable tests. (1) If the Secretary determines that a test
does not satisfy the criteria and requirements in Sec. 462.13 and,
therefore, is not suitable for use in the NRS, the Secretary notifies
the test publisher of the Secretary's decision and of the reasons why
the test does not meet those criteria and requirements.
(2) Within 30 days after the Secretary notifies a test publisher
that its test is not suitable for use in the NRS, the test publisher
may request that the Secretary reconsider the Secretary's decision.
This request must be accompanied by--
(i) An analysis of why the information and documentation submitted
meet the criteria and requirements in Sec. 462.13, notwithstanding the
Secretary's earlier decision to the contrary; and
(ii) Any additional documentation and information that address the
Secretary's reasons for determining that the test was unsuitable.
(3) The Secretary reviews the additional information submitted by
the test publisher and makes a final determination regarding the
suitability of the test for use in the NRS.
(i) If the Secretary's decision is unchanged and the test remains
unsuitable for use in the NRS, the Secretary notifies the test
publisher, and this action concludes the review process.
(ii) If the Secretary's decision changes and the test is determined
to be suitable for use in the NRS, the Secretary follows the procedures
in paragraph (c) of this section.
(e) Revocation. (1) The Secretary's determination regarding the
suitability of a test may be revoked if the Secretary determines that--
(i) The information the publisher submitted as a basis for the
Secretary's review of the test was inaccurate; or
(ii) A test has been substantially revised--for example, by
changing its structure, number of items, content specifications, item
types, or sub-tests.
(2) The Secretary notifies the test publisher of the--
(i) Secretary's decision to revoke the determination that the test
is suitable for use in the NRS; and
(ii) Reasons for the Secretary's revocation.
(3) Within 30 days after the Secretary notifies a test publisher of
the decision to revoke a determination that a test is suitable for use
in the NRS, the test publisher may request that the Secretary
reconsider the decision. This request must be accompanied by
documentation and information that address the Secretary's reasons for
revoking the determination that the test is suitable for use in the
NRS.
(4) The Secretary reviews the information submitted by the test
publisher and makes a final determination regarding the suitability of
the test for use in the NRS.
(5) If the Secretary revokes the determination regarding the
suitability of a test, the Secretary publishes in the Federal Register
and posts on the Internet at http://www.nrsweb.org a notice of that
revocation along with the date by which States and local eligible
providers must stop using the revoked test. A copy of the notice of
revocation is also available from the U.S. Department of Education,
Office of Vocational and Adult Education, Division of Adult Education
and Literacy, 400 Maryland Avenue, SW., room 11159, Potomac Center
Plaza, Washington, DC 20202-7240.
(Authority: 20 U.S.C. 9212)
[[Page 2319]]
Sec. 462.13 What criteria and requirements does the Secretary use for
determining the suitability of tests?
In order for the Secretary to consider a test suitable for use in
the NRS, the test or the test publisher, if applicable, must meet the
following criteria and requirements:
(a) The test must measure the NRS educational functioning levels of
members of the adult education population.
(b) The test must sample one or more of the major content domains
of the NRS educational functioning levels of ABE, ESL, or ASE with
sufficient numbers of questions to adequately represent the domain or
domains.
(c)(1) The test must meet all applicable and feasible standards for
test construction and validity provided in the 1999 edition of the
Standards for Educational and Psychological Testing, prepared by the
Joint Committee on Standards for Educational and Psychological Testing
of the American Educational Research Association, the American
Psychological Association, and the National Council on Measurement in
Education incorporated by reference in this section. The Director of
the Federal Register approves this incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a
copy from the American Psychological Association, Inc., 750 First
Street, NE., Washington, DC 20002. You may inspect a copy at the
Department of Education, room 11159, 550 12th Street, SW., Washington,
DC 20202 or at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call
(202) 741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(2) If requested by the Secretary, a test publisher must explain
why it believes that certain standards in the 1999 edition of the
Standards for Educational and Psychological Testing were not applicable
or were not feasible to meet.
(d) The test must contain the publisher's guidelines for retesting,
including time between test-taking, which are accompanied by
appropriate justification.
(e) The test must--
(1) Have two or more secure, parallel, equated forms of the same
test--either traditional paper and pencil or computer administered
instruments--for which forms are constructed prior to administration to
examinees; or
(2) Be an adaptive test that uses computerized algorithms for
selecting and administering items in real time; however, for such an
instrument, the size of the item pool and the method of item selection
must ensure negligible overlap in items across pre- and post-testing.
Scores associated with these alternate administrations must be
equivalent in meaning.
(f) For a test that has been modified for individuals with
disabilities, the test publisher must--
(1) Provide documentation that it followed the guidelines provided
in the Testing Individuals With Disabilities section of the 1999
edition of the Standards for Educational and Psychological Testing;
(2) Provide documentation of the appropriateness and feasibility of
the modifications relevant to test performance; and
(3)(i) Recommend educational functioning levels based on the
information obtained from adult education students who participated in
the pilot or field test and who have the disability for which the test
has been modified; and
(ii) Provide documentation of the adequacy of the procedures used
to translate the performance of adult education students with the
disability for whom the test has been modified to an estimate of the
examinees' standing with respect to the NRS educational functioning
levels.
(Authority: 20 U.S.C. 9212)
Sec. 462.14 How often and under what circumstances must a test be
reviewed by the Secretary?
(a) The Secretary's determination that a test is suitable for use
in the NRS is in effect for a period of seven years from the date of
the Secretary's written notification to the test publisher, unless
otherwise indicated by the Secretary. After that time, if the test
publisher wants the test to be used in the NRS, the test must be
reviewed again by the Secretary so that the Secretary can determine
whether the test continues to be suitable for use in the NRS.
(b) If a test that the Secretary has determined is suitable for use
in the NRS is substantially revised--for example, by changing its
structure, number of items, content specifications, item types, or sub-
tests--and the test publisher wants the test to continue to be used in
the NRS, the test publisher must submit, as provided in Sec.
462.11(j)(4), the substantially revised test or version of the test to
the Secretary for review so that the Secretary can determine whether
the test continues to be suitable for use in the NRS.
(Authority: 20 U.S.C. 9212)
Subpart C--[Reserved]
Subpart D--What Requirements Must States and Local Eligible
Providers Follow When Measuring Educational Gain?
Sec. 462.40 Must a State have an assessment policy?
(a) A State must have a written assessment policy that its local
eligible providers must follow in measuring educational gain and
reporting data in the NRS.
(b) A State must submit its assessment policy to the Secretary for
review and approval at the time it submits its annual statistical
report for the NRS.
(c) The State's assessment policy must--
(1) Include a statement requiring that local eligible providers
measure the educational gain of all students who receive 12 hours or
more of instruction in the State's adult education program with a test
that the Secretary has determined is suitable for use in the NRS;
(2) Identify the pre- and post-tests that the State requires local
eligible providers to use to measure the educational gain of ABE, ESL,
and ASE students;
(3)(i) Indicate when, in calendar days or instructional hours,
local eligible providers must administer pre- and post-tests to
students; and
(ii) Ensure that the time for administering the post-test is long
enough after the pre-test to allow the test to measure educational
gains according to the test publisher's guidelines;
(4) Specify the score ranges tied to educational functioning levels
for placement and for reporting gains for accountability;
(5) Identify the skill areas the State intends to require local
eligible providers to assess in order to measure educational gain;
(6) Include the guidance the State provides to local eligible
providers on testing and placement of an individual with a disability
or an individual who is unable to be tested because of a disability;
(7) Describe the training requirements that staff must meet in
order to be qualified to administer and score each test selected by the
State to measure the educational gains of students;
(8) Identify the alternate form or forms of each test that local
eligible providers must use for post-testing;
(9) Indicate whether local eligible providers must use a locator
test for guidance on identifying the appropriate pre-test;
[[Page 2320]]
(10) Describe the State's policy for the initial placement of a
student at each NRS educational functioning level using test scores;
(11) Describe the State's policy for using the post-test for
measuring educational gain and for advancing students across
educational functioning levels;
(12) Describe the pre-service and in-service staff training that
the State or local eligible providers will provide, including
training--
(i) For staff who either administer or score each of the tests used
to measure educational gain;
(ii) For teachers and other local staff involved in gathering,
analyzing, compiling, and reporting data for the NRS; and
(iii) That includes the following topics:
(A) NRS policy, accountability policies, and the data collection
process.
(B) Definitions of measures.
(C) Conducting assessments; and
(13) Identify the State or local agency responsible for providing
pre- and in-service training.
(Approved by the Office of Management and Budget under control
number 1830-0027)
(Authority: 20 U.S.C. 9212)
Sec. 462.41 How must tests be administered in order to accurately
measure educational gain?
(a) General. A local eligible provider must measure the educational
gains of students using only tests that the Secretary has determined
are suitable for use in the NRS and that the State has identified in
its assessment policy.
(b) Pre-test. A local eligible provider must--
(1) Administer a pre-test to measure a student's educational
functioning level at intake, or as soon as possible thereafter;
(2) Administer the pre-test to students at a uniform time,
according to its State's assessment policy; and
(3) Administer pre-tests to students in the skill areas identified
in its State's assessment policy.
(c) Post-test. A local eligible provider must--
(1) Administer a post-test to measure a student's educational
functioning level after a set time period or number of instructional
hours;
(2) Administer the post-test to students at a uniform time,
according to its State's assessment policy;
(3)(i) Administer post-tests with a secure, parallel, equated form
of the same test--either traditional paper and pencil or computer-
administered instruments--for which forms are constructed prior to
administration to examinees to pre-test and determine the initial
placement of students; or
(ii) Administer post-tests with an adaptive test that uses
computerized algorithms for selecting and administering items in real
time; however, for such an instrument, the size of the item pool and
the method of item selection must ensure negligible overlap in items
across pre- and post-testing; and
(4) Administer post-tests to students in the same skill areas as
the pre-test.
(d) Other requirements. (1) A local eligible provider must
administer a test using only staff who have been trained to administer
the test.
(2) A local eligible provider may use the results of a test in the
NRS only if the test was administered in a manner that is consistent
with the State's assessment policy and the test publisher's guidelines.
(Approved by the Office of Management and Budget under control
number 1830-0027)
(Authority: 20 U.S.C. 9212)
Sec. 462.42 How are tests used to place students at an NRS
educational functioning level?
(a) A local eligible provider must use the results of the pre-test
described in Sec. 462.41(b) to initially place students at the
appropriate NRS educational functioning level.
(b) A local eligible provider must use the results of the post-test
described in Sec. 462.41(c)--
(1) To determine whether students have completed one or more
educational functioning levels or are progressing within the same
level; and
(2) To place students at the appropriate NRS educational
functioning level.
(c)(1) States and local eligible providers are not required to use
all of the skill areas described in the NRS educational functioning
levels to place students.
(2) States and local eligible providers must test and report on the
skill areas most relevant to the students' needs and to the programs'
curriculum.
(d)(1) If a State's assessment policy requires a local eligible
provider to test a student in multiple skill areas and the student will
receive instruction in all of the skill areas, the local eligible
provider must place the student in an educational functioning level
that is equivalent to the student's lowest test score for any of the
skill areas tested under Sec. 462.41(b) and (c).
(2) If a State's assessment policy requires a local eligible
provider to test a student in multiple skill areas, but the student
will receive instruction in fewer than all of the skill areas, the
local eligible provider must place the student in an educational
functioning level that is equivalent to the student's lowest test score
for any of the skill areas--
(i) Tested under Sec. 462.41(b) and (c); and
(ii) In which the student will receive instruction.
(Approved by the Office of Management and Budget under control
number 1830-0027)
(Authority: 20 U.S.C. 9212)
Sec. 462.43 How is educational gain measured?
(a)(1) Educational gain is measured by comparing the student's
initial educational functioning level, as measured by the pre-test
described in Sec. 462.41(b), with the student's educational
functioning level as measured by the post-test described in Sec.
462.41(c).
Example: A State's assessment policy requires its local eligible
providers to test students in reading and numeracy. The student
scores lower in reading than in numeracy. As described in Sec.
462.42(d)(1), the local eligible provider would use the student's
reading score to place the student in an educational functioning
level. To measure educational gain, the local eligible provider
would compare the reading score on the pre-test with the reading
score on the post-test.
(2) A student is considered to have made an educational gain when
the student's post-test indicates that the student has completed one or
more educational functioning levels above the level in which the
student was placed by the pre-test.
(b) If a student is not post-tested, then no educational gain can
be measured for that student and the local eligible provider must
report the student in the same educational functioning level as
initially placed for NRS reporting purposes.
(Approved by the Office of Management and Budget under control
number 1830-0027)
(Authority: 20 U.S.C. 9212)
Sec. 462.44 Which educational functioning levels must States and
local eligible providers use to measure and report educational gain in
the NRS?
States and local eligible providers must use the NRS educational
functioning levels in the following functioning level table:
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[FR Doc. 08-69 Filed 1-11-08; 8:45 am]
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