Office of Postsecondary Education - U.S. Department of Education

WReier-Aviles on DSKGBLS3C1PROD with RULES266922 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulationstest administrator be expanded toinclude test proctors.Discussion: Section 668.142, inpertinent part, defines an independenttest administrator as a test administratorwho administers tests at a location otherthan an assessment center and who hasno current or prior financial orownership interest in the institution, itsaffiliates, or its parent corporation, otherthan the fees earned for administeringapproved ATB tests through anagreement with the test publisher orState, and has no controlling interest inany other institution and has nocontrolling interest in any otherinstitution. We agree that independenttest administrators may obtain a fee forthe administration of ATB testsgenerally through a written contractbetween the test publisher or State andthe test administrator. In order to clarifythis single type of allowable financialinterest, we have made a change to thelanguage in this definition.On the matter of expanding thedefinition of the term test administratorto include test proctors, we disagreewith this suggestion. The reason wedisagree with the commenter’ssuggestion is that subpart J of part 668specifically restricts the administrationof ATB tests to test administratorscertified by the test publisher or State toadminister their tests, as defined in theagreement between the Secretary andthe test publisher or State, as applicable.We believe it would be confusing to addtest proctors to the definition of a testadministrator because only certified testadministrators can administer ATB testsfor title IV, HEA program purposes. Webelieve certification is an appropriaterequirement because it insures that theapproved tests are administered bytrained, skilled, and knowledgeableprofessions.Changes: We have amended thedefinition of the term independent testadministrator by clarifying that anindependent test administrator musthave no current or prior financial orownership interest in the institution, itsaffiliates, or its parent corporation, otherthan the fees earned through theagreement an independent testadministrator has with the testpublisher or State to administer the test.Application for Test Approval(§ 668.144)Comment: One commenter stronglysupported the proposed change in thelanguage regarding the norming groupin §§ 668.144(c)(11)(iv)(B) and668.146(c)(4)(ii) that requires the groupto be a contemporary sample that isrepresentative of the population ofpersons who have earned a high schooldiploma in the United States.Discussion: The statute provides thata student who does not have a highschool diploma or its equivalent canbecome eligible for title IV, HEAprogram assistance if the student takesan independently administeredexamination and achieves the scorespecified by the Secretary thatdemonstrates that the student has theability to benefit from the training beingoffered. As an alternative to obtaining ahigh school diploma, it is appropriatethat the normative group used toestablish the relative placement of thetest-taker’s results should be comprisedof U.S. high school graduates ratherthan a group of persons who are beyondthe usual age of compulsory schoolattendance in the United States.However, we take this opportunity toremind institutions that a fundamentalcomponent of the definition of the terminstitution of higher education requiresthat an eligible and participatinginstitution may admit as regularstudents only persons who have a highschool diploma (or have the recognizedequivalent) or are beyond the age ofcompulsory school attendance.Therefore, it is clear that for the purposeof establishing title IV, HEA programeligibility, approved ATB tests may onlybe provided to students who are beyondthe age of compulsory schoolattendance.Changes: None.Comment: Several commenterssupported the proposal to include in thetest publisher’s or State’s screening ofpotential test administrators, theirevaluation of a test administrator’sintegrity. In response to our request inthe NPRM for feedback about how a testpublisher or a State will determine—inaccordance with §§ 668.144(c)(16)(i) and668.144(d)(7)(i)—that a testadministrator has the integrity necessaryto administer tests, we received anumber of suggestions. These includedthe following—• Requiring a prospective testadministrator to sign, under penalty ofperjury, an application indicatingwhether he or she had ever beenconvicted of fraud, breach of fiduciaryresponsibilities, or other illegal conductinvolving title IV, HEA programs;• Including a question on the testadministrator’s application askingwhether the applicant has ever beenconvicted of a crime and, if the answerto this question is ‘‘yes’’, requiring theapplicant to provide additional details;• Including a question on the testadminister application asking whetherthe applicant has ever worked at aninstitution of higher education, and ifVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2the answer to this question is ‘‘yes’’,requiring the applicant to provideadditional details; and• Requiring test publishers and Statesto perform fingerprinting andbackground checks, including a checkfor being included in any lawsuit, aswell as, checking for arrests andconvictions, for each test administer.Discussion: We appreciate thecommenters’ suggestions regarding waystest publishers and States can evaluatewhether a test administrator has theintegrity necessary to administer ATBtests. While test publishers and Statescan adopt any of the methods proposedby the commenters, we do not believeit is appropriate to require all testpublishers and States to use thosemethods to evaluate test administratorintegrity. Rather, we believe § 668.144,as proposed, will provide testpublishers and States with theflexibility they need to determine thatthe test administrator will have thenecessary training, knowledge, skillsand integrity to test students inaccordance with subpart J of part 668and the requirements of the testadministration technical manual. Under§ 668.144, test publishers and States arerequired to disclose how they will goabout making these determinations.When evaluating the informationprovided by test publishers and States,we will be looking at their processesand to what extent informationcollected by the test publisher or Statesupports their determination of whethera prospective test administrator candemonstrate his or her training,knowledge, skills and integrity. Inaddition, we will compare therequirements in the test administrationtechnical manual to the other provisionsin § 668.144 that require testadministrators to have both the abilityand facilities to keep the ATB testssecure against disclosure or release andhow those issues are explained toprospective test administrators, how anymonitoring may be achieved to insurethat the tests are being protected.Changes: None.Comment: One commenterrecommended that test publishers andStates should not be required to discloseany proprietary information, such as testanomaly analysis, to the Departmentdue to the proprietary nature of thestudy techniques. The commenter statedthat, if the Department decides that testpublishers and States must provide theirtest anomaly study procedures, theDepartment should provide assurancesthat the information will be keptconfidential.Discussion: It is important that testpublishers and States provide the