Office of Vocational and Adult Education; Notice of proposed rulemaking; 34 CFR Part 462; Measuring Educational Gain in the National Reporting System for Adult Education [OVAE]

FR Doc 06-8709
[Federal Register: October 18, 2006 (Volume 71, Number 201)]
[Proposed Rules]
[Page 61579-61593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18oc06-27]

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Part III

Department of Education

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34 CFR Part 462

Measuring Educational Gain in the National Reporting System for Adult
Education; Proposed Rule

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DEPARTMENT OF EDUCATION

34 CFR Part 462

Measuring Educational Gain in the National Reporting System for
Adult Education

AGENCY: Office of Vocational and Adult Education, Department of
Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to establish procedures for determining
the suitability of tests for use in the National Reporting System for
Adult Education (NRS). These proposed regulations also include
procedures that States and local eligible providers would follow when
using suitable tests for NRS reporting.

DATES: We must receive your comments on or before November 17, 2006.

ADDRESSES: Address all comments about these proposed regulations to
Sharon A. Jones, U.S. Department of Education, 400 Maryland Avenue,
SW., room 11108, Potomac Center Plaza, Washington, DC 20202-7120. If
you prefer to send your comments through the Internet, you may address
them to us at the U.S. Government Web site: http://www.regulations.gov.

Or you may send your Internet comments to us at the following
address: NRSregulations@ed.gov.
You must include the term ``Part 462'' in the subject line of your
electronic message.
If you want to comment on the information collection requirements,
you must send your comments to the Office of Management and Budget at
the address listed in the Paperwork Reduction Act section of this
preamble. You may also send a copy of these comments to the Department
representative named in this section.

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), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 11108, 550 12th
Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m.,
Eastern time, Monday through Friday of each week except Federal
holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record

On request, we will supply an appropriate aid to an individual with
a disability who needs assistance to review the comments or other
documents in the public rulemaking record for these proposed
regulations. If you want to schedule an appointment for this type of
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.

Background

These proposed 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.
Under the Act, the Department provides Federal funds to States,
which then award grants to local eligible providers of adult education
and literacy services. These providers may include local educational
agencies, community-based organizations, volunteer literacy
organizations, and institutions of higher education.
Accountability for results is a central focus of the Act. The Act
sets out performance accountability requirements for States and local
programs that measure program effectiveness on the basis of student
academic achievement and other outcomes. The Act establishes three core
indicators that must be used to assess State performance:
Demonstrated improvements in literacy skill levels in
reading, writing, and speaking the English language, numeracy, problem
solving, English language acquisition, and other literacy skills as
defined by the Secretary (educational gain).
Placement in, retention in, or completion of postsecondary
education, training, unsubsidized employment, or career advancement.
Receipt of a secondary school diploma or a recognized
equivalent.

The Department and each State reach agreement on annual levels of
performance for each of the core indicators, and States annually report
their actual performance in the NRS.
In order to help States validly demonstrate and accurately report
their annual improvements in literacy skill levels and other core
indicators of performance, and after extensive consultation with State
directors of adult education, representatives from volunteer provider
agencies, directors of local adult education programs, and experts on
accountability systems, the Department established the NRS. The NRS
standardizes the measurement of the core indicators across States and
establishes procedures for collecting and reporting student outcome
data to enhance the data's validity and reliability.
To further assist States, the Department also issued Implementation
Guidelines: Measures and Methods for the National Reporting System for
Adult Education (Guidelines), which established reporting requirements,
data collection policies, and common definitions for each of the core
outcome measures or indicators. (The Guidelines are on the Internet at
http://www.nrsweb.org). As set forth in the Guidelines, the NRS

measures educational gain by defining, using standardized tests, a set
of educational functioning levels at which students are initially
placed based on their abilities to perform literacy-related tasks in
specific skill areas. After a specific time period or number of
instructional hours established by the State, students are again
assessed to determine their skill levels. If a student's skills have
improved sufficiently to be placed one or more levels higher, the
student is considered to have made an educational gain.
The Guidelines identify a number of standardized tests (along with
the tests'

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benchmarks for the NRS educational functioning levels) that are
currently acceptable for States to use in measuring educational gain.
However, the Guidelines do not require States to use only the
standardized tests listed. If a State wishes to allow local eligible
providers to use some other standardized test for this purpose, the
State must take into account the factors identified in the Guidelines
and must demonstrate to the Department that the particular alternate
test proposed to be used satisfactorily addresses those factors.
Currently, the Department uses experts in the field of educational
testing and assessment to assist us in reviewing tests for their
suitability for use in the NRS. These psychometricians, using the same
criteria for assessing tests that are contained in the Guidelines and
these proposed regulations, review tests and make recommendations to
the Secretary regarding the appropriateness of the tests. The Secretary
determines, taking into account the experts' recommendations, whether a
test is suitable for use in the NRS.
Until these regulations become effective, the Secretary will
continue to use (1) the guidance provided in the Guidelines and (2) the
Department's current process for providing States and test publishers
an opportunity to demonstrate that alternate tests are suitable for NRS
purposes.
Through these proposed regulations, we intend to formalize the
process for the review and approval of tests for use in the NRS. We
believe that the uniform process we are proposing will facilitate test
publishers' submission of tests to the Department for review and help
to strengthen the integrity of the NRS as a critical tool for measuring
State performance. The proposed process also will provide an
established means for examining tests that are currently approved for
use in the NRS but have not been updated recently and, therefore, need
to be reassessed for their continuing validity.

Significant Proposed Regulations

We discuss substantive issues under the sections of the proposed
regulations to which they pertain.
Proposed Sec. 462.3 provides the meanings of terms, including some
from the Act, used in these regulations. We define these terms so that
there is a common understanding of how the terms are used in the
regulations, and because the terms will affect the validity of data
collected and reported in the NRS. In that regard, the terms adult
basic education (ABE), adult secondary education (ASE), English-as-a-
second language (ESL), adult education population, content domains or
NRS skill areas, educational functioning levels, Guidelines, local
eligible provider, and State connect the regulations to the terms used
in the NRS. The definitions of the terms test, test administrator, and
test publisher provide standardization, which is particularly needed
given the different meanings and synonyms currently used for these
terms. For example, in describing the tests used to determine
educational functioning levels and to measure educational gain, States
and local eligible providers inconsistently use the terms test,
assessment, and instrument. By clearly defining terminology, the
regulations would eliminate confusion, identify a particular term to be
used when describing or referencing a specific circumstance, and
provide a shared understanding of how the term is used in the
regulations.
Proposed Sec. 462.4 provides the deadline, June 30, 2008, by which
States and local eligible providers would stop using tests, including
those currently listed in the Guidelines, that the Secretary determines
are not suitable for use in the NRS. After June 30, 2008, States and
local eligible providers would use only tests that the Secretary has
reviewed and considered suitable for use in the NRS under these
regulations. We believe a June 30, 2008, deadline provides adequate
time for the Secretary to complete at least one review of tests and
determine their suitability, and then, if necessary, for States and
local eligible providers to transition their accountability systems
from use of unsuitable tests to suitable tests. We are particularly
interested in your comments on whether June 30, 2008 provides enough
time for States and local eligible providers to make the transition to
suitable tests.
Proposed Sec. 462.10(a) would provide that the Secretary reviews
tests only from test publishers, i.e., 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. In
this way, only an entity that has a vested interest in and a great deal
of knowledge about a test could request the Secretary's review of a
test. These entities have an in-depth knowledge of a test's
development, maintenance, content validity, match of scores to the NRS
educational functioning levels, reliability, and construct validity,
and, as a result, would be able to respond to questions the Secretary
may raise during the review process. As importantly, test publishers
would also be able to readily make tests available to States and local
eligible providers for use in the NRS.
Proposed Sec. 462.10(b) would offer test publishers an annual
opportunity, by October 1 of each year, to submit tests for the
Secretary's review. However, because we anticipate that these
regulations will be published as final regulations after October 1,
2006, the Secretary plans to announce in the Federal Register the date
for the first opportunity for test publishers to submit tests for
review. The date of the first opportunity for test publishers to submit
tests will be no earlier than the effective date of the final
regulations. On that date, test publishers could begin to request that
the Secretary determine the suitability of their tests using the
standards and procedures established in the final regulations. States
and local eligible providers could immediately use tests once they have
been determined suitable by the Secretary under these regulations. The
annual review proposed in Sec. 462.10(b) would provide the Department
with adequate time to review tests; review any additional information
provided by test publishers; and notify test publishers, States, and
local eligible providers that additional tests are eligible for use in
the NRS. By receiving tests beginning in October, the Secretary would
be able to synchronize the review of tests with the operations of the
adult education programs, especially the data collection process.
Proposed Sec. 462.11 would delineate the information that a test
publisher must include in an application so that the Secretary may
determine the suitability of a test, whether the test is being
submitted for the first time or resubmitted because, for example, it
has been substantively revised. These proposed regulations would
continue the Department's practice of having test publishers submit
information that supports the reliability and validity of their tests.
This is the information that experts in the field of educational
testing and assessment will need in order to advise the Secretary on
the extent to which a particular test meets the criteria and
requirements in Sec. 462.13 for determining the suitability of tests.
Section 462.11(j) describes the additional information test publishers
would include in an application requesting the review of a previous
test, for example, a test that was used to measure educational gain in
the NRS before the effective date of these regulations or was first
published five years or more before the date it is submitted to the
Secretary for review. The Secretary reviews this information

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to determine whether a test continues to reflect NRS educational
functioning levels.
Proposed Sec. 462.12 would describe the Secretary's process for
reviewing and determining the suitability of tests for determining
educational functioning levels and measuring educational gain.
Annually, at the conclusion of the review process, the Secretary would
publish a list of suitable tests in the Federal Register and post the
list on the Internet at http://www.nrsweb.org. Copies of the list would

also be available from the Department. Proposed Sec. 462.12 would
establish the procedure the Secretary would use to make a determination
about the suitability of tests, to notify test publishers of the
Secretary's decision, to provide an opportunity for test publishers to
request that the Secretary reconsider a decision that a test is
unsuitable, to conclude the review process upon any reconsideration, to
revoke the Secretary's determination that a test is suitable, and to
notify affected parties of the revocation. Further, proposed Sec.
462.12(a)(2) identifies the circumstances when the Secretary would
determine the suitability of a test. Proposed Sec. 462.12 clearly
delineates the formal, reasoned, and uniform process the Secretary
would use to determine the suitability of tests and provides an
opportunity for test publishers and others to suggest improvements to
that process.
Proposed Sec. 462.13 provides that in order to be determined
suitable, tests would determine the NRS educational functioning levels
of members of the adult education population; sample one or more of the
major content domains of the NRS educational functioning levels of
Adult Basic Education, Adult Secondary Education, English-as-a-second
Language, or all three; meet the applicable and feasible standards for
test construction provided in the 1999 edition of the Standards for
Educational and Psychological Testing; contain the test publisher's
guidelines for retesting; and have two or more secure, parallel,
equated forms. Proposed Sec. 462.13 would also establish that the size
of the item pool and the method of item selection for computerized
adaptive tests must ensure negligible overlap in items across pre- and
post-test. Finally, proposed Sec. 462.13 would establish the
requirements for tests that have been modified for an individual with a
disability. Proposed Sec. 462.13 is necessary because it would notify
test publishers of the criteria and requirements the Secretary would
use to determine the suitability of tests. Since the information
provided in a test publisher's application must ultimately demonstrate
that a test meets the criteria and requirements in Sec. 462.13, this
section would be beneficial to test publishers because it contains, in
one place, information a test publisher can use to decide whether to
submit an application. After reviewing Sec. 462.13, a test publisher
could decide to save its resources rather than prepare an application
for a test that does not meet the criteria and requirements in the
regulations and, as a result, would be determined unsuitable.
Proposed Sec. 462.14 would establish a seven-year period during
which a test determined as suitable would remain eligible for use in
the NRS, unless the test publisher substantially revises the test--for
example, by changing its structure, number of items, content
specifications, item types, or sub-tests. The Secretary believes that
having a test remain suitable for seven years helps to ensure greater
consistency for State and local accountability systems, improves the
reliability for data collected and reported in the NRS, and reduces the
amount of disruption to State and local programs if suitable tests are
later found to be unsuitable and, therefore, can no longer be used in
the NRS. The regulations also would establish that the Secretary may
determine that a test is suitable for use in the NRS for fewer than
seven years. Proposed Sec. 462.14 would clarify for test publishers
how often and under which circumstances a test must be reviewed by the
Secretary.
Proposed Sec. Sec. 462.40 through 462.44 would codify a number of
existing NRS practices regarding activities such as determining
educational functioning levels, administering tests, student placement,
measuring educational gain, and State assessment policy. Proposed
Sec. Sec. 462.40 through 462.44 are necessary because they would
establish what the Department deems is an efficient and effective means
of obtaining accurate, reliable, and valid data for reporting in the
NRS.

Executive Order 12866

1. Potential Costs and Benefits

Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for administering this program effectively
and efficiently.
Elsewhere in this SUPPLEMENTARY INFORMATION section, we identify
and explain burdens specifically associated with information collection
requirements. See the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs.
We have also determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
Elsewhere in this preamble, under the headings Significant Proposed
Regulations and Regulatory Flexibility Act Certification, we discuss
the potential costs and benefits of these proposed regulations.

2. Clarity of the Regulations

Executive Order 12866 and the Presidential Memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 462.1 What is the scope of this part?)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities because they would not impose excessive regulatory burdens or
require

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unnecessary Federal supervision. The proposed regulations would impose
minimal requirements to ensure the proper expenditure of program funds.
These proposed regulations would affect States, a few test
publishers, and local eligible providers of adult education programs
that receive funding under the Act.
States and State agencies are not defined as ``small entities'' in
the Regulatory Flexibility Act.
The U.S. Small Business Administration Size Standards classify test
publishers as a ``small business'' if they are organized for profit,
have total annual revenue below $6.5 million, and have 100 or fewer
employees. The U.S. Small Business Administration Size Standards
classify local eligible providers as (a) ``small organizations,'' which
means any not-for profit enterprise that is independently owned and
operated and is not dominant in its field or (b) ``small governmental
jurisdictions,'' which means governments of cities, counties, towns,
townships, village, school districts, or special districts with a
population of less than fifty thousand.
The proposed regulations would benefit both small and large
entities by providing one uniform process for reviewing tests that are
used to measure educational gain in the NRS. This process would relieve
States of the burden of using their limited resources to review tests.
It would also reduce the amount of resources test publishers would
expend to have tests reviewed by individual States. Under the proposed
regulations, test publishers would have their tests reviewed by only
the Department instead of by each State that intends to use their
tests. Thus entities, both small and large, would experience a positive
economic impact as a result of these proposed regulations.

Paperwork Reduction Act of 1995

Sections 462.10, 462.11, 462.12, 462.13, and 462.14 contain new
information collection requirements. Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3507(d)), the Department of Education has submitted
a copy of these sections to the Office of Management Budget (OMB) for
its review. Sections 462.4 and 462.40 through 462.44 contain
information collection requirements approved by OMB under Control
Number 1830-0027 for existing NRS practices.
Collection of Information: Measuring Educational Gain in the
National Reporting System for Adult Education.
Under these proposed regulations, test publishers would request the
Secretary's review of tests that measure educational gain. The
collection of information includes the following:
(a) Specific information concerning a test's development,
maintenance, content validity, match scores, reliability, validity, and
the extent to which the test meets applicable and feasible standards
for test construction.
(b) Specifications on how tests will be administered at the local
eligible provider level.
(c) Existing NRS practices regarding determining educational
functioning levels, administering tests, student placement, State
assessment policy, and measuring educational gain in the NRS that have
been approved by OMB under Control Number 1830-0027.
The Department would use this information to (a) determine the
suitability of tests for use in the NRS and (b) judge program
performance, including eligibility for incentive grants.
The collection of information would be provided when (a) a test
publisher wishes the Secretary to determine the suitability of its test
for use in the NRS and (b) States and local eligible providers measure
and report educational gain under the NRS.
Once the Secretary determines that a test is suitable for use in
the NRS, a test could be used in the NRS for seven years. After that
time, the test publisher could again submit the test to the Secretary
for review, or the test could no longer be used in the NRS. We estimate
reporting and recordkeeping burden for an application requesting the
Secretary to determine the suitability of a test for use in the NRS to
average 40 hours for each response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, completing and reviewing the collection of
information, and responding to questions the Secretary may have. While
the collection of information is necessarily inclusive, it would
request merely the data test publishers can reasonably be expected to
have on hand to support their claims regarding the appropriateness and
effectiveness of their test or tests, including whether the test meets
applicable and feasible standards for test construction in the 1999
edition of the Standards for Educational and Psychological Testing.
Much of the information is routinely included in the technical manual
and the test administrator's manual that are provided with a test.
While we cannot estimate the total number of respondents, because
it is impossible to know the number of test publishers that may want to
expand their markets into the field of adult education, we are aware
of: (a) 25 tests that test publishers may ask the Secretary to review
for suitability for use in the NRS and (b) 25 widely used tests of an
adult's basic skills that have been in use in the NRS since 1999 and
that would need to be reviewed by the Secretary after these regulations
become effective if they are to continue to be used in the NRS.
Therefore, we estimate the total reporting burden for this collection
to be 2,000 hours (50 x 40). This estimate does not include the
reporting burden associated with (a) the actual use of a test to
measure educational gain and (b) existing NRS practices regarding
determining educational functioning levels, administering tests,
student placement, State assessment policy, and measuring educational
gain in the NRS because that burden has been approved by OMB under
Control Number 1830-0027.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC
20503; Attention: Desk Officer for U.S. Department of Education. You
may also send a copy of these comments to the Department representative
named in the ADDRESSES section of this preamble.
We consider your comments on these proposed collections of
information in--
Deciding whether the proposed collections are necessary
for the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
the proposed collections, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden of those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submissions of
responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, to ensure that OMB gives your comments full consideration,
it is important that OMB receives the comments within 30 days of
publication. This does not affect the deadline for your comments to us
on the proposed regulations.

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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. The Executive Order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.

Assessment of Educational Impact

The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.

Electronic Access to This Document

You may 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:
http://www.ed.gov/news/fedregister.

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.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.

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: http://www.gpoaccess.gov/nara/index.html
.

(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: October 11, 2006.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend 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?

These regulations 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 75 (Direct Grant 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).
(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 in secondary school; and
(3) Who--
(i) Lack sufficient mastery of basic educational skills to enable
the individuals to function effectively in society;

[[Page 61585]]

(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 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 skills 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.
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 June 30, 2008. After that time, 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 by October 1 of each year and in the
manner the Secretary may prescribe.

(Authority: 20 U.S.C. 9212)

Sec. 462.11 What must an application contain?

(a) Application content and format. (1) 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 include with its application
information listed in paragraphs (b) through (i) of this section, as
well as the applicable information in paragraph (j) of this section.
(2) A test publisher must arrange the information in its
application in the order it is presented in paragraphs (b) through (j)
of this section.
(3) A test publisher must 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 of 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, for example--
(i) The number of examinees administered each item;
(ii) How similar were the sample or samples of examinees used to
develop and evaluate the test 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,
for example--
(i) The extent to which items or tasks on the test have been
reviewed for fairness and sensitivity; and
(ii) The extent to which items or tasks on the test have been
screened for the adequacy of their psychometric properties.
(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; and
(4) A history of the test's use.
(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) Whether there are items or tasks that are not associated with
any of the NRS educational functioning levels;
(5) The procedures used to establish the content validity of the
test;
(6) The number of subject-matter experts who provided judgments
linking

[[Page 61586]]

the items or tasks to the educational functioning levels, and their
qualifications for doing so, particularly their familiarity with adult
education and the NRS educational functioning levels; and
(7) 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 number-correct) scores across
alternate forms 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;
(ii) The similarity between the sample 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 hours of instruction or other
important process or outcome variables;
(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 some
other construct-irrelevant variables, such as practice effects.
(i) Other information. (1) A description of the manner in which
test-taking time was determined in relation to the content domains of
the NRS educational functioning levels, and an analysis of the effects
of time on performance.
(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 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 being
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.
(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 new data supporting
the validity of the test.
(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 contained 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 has two or more secure, parallel,
equated forms of the test;
(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

[[Page 61587]]

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, 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
the information the publisher submitted as a basis for the Secretary's
review of the test was inaccurate.
(2) 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,
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)

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 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 11108, 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 asked by the Secretary, a test publisher must be able to
explain why it believes that certain standards in the Standards for
Educational and Psychological Testing were not applicable or were not
feasible.
(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 have two or more secure, parallel, equated forms.
(f) For computerized adaptive tests, the size of the item pool and
the method of item selection must be adequate to ensure negligible
overlap in items across pre- and post-test administrations of the test
to the same examinee. Scores associated with these alternate
administrations must be equivalent in meaning.
(g) For a test that has been modified for an individual with a
disability, 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) 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.

(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.

[[Page 61588]]

(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 functional 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;
(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 advancing students across
educational functioning levels using the post-test and for measuring
educational gain;
(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) Administer post-tests with a secure, parallel, equated form of
the same test that was used to pre-test and determine the initial
placement of students; 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
recommendations.

(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)

[[Page 61589]]

(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 recipient
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 he or she 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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(Approved by the Office of Management and Budget under control
number 1830-0027)

(Authority: 20 U.S.C. 9212)

[FR Doc. 06-8709 Filed 10-17-06; 8:45 am]

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