34cfr668_141

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.141]

[Page 499]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.141 Scope.

Source: 60 FR 61838, Dec. 1, 1995, unless otherwise noted.

(a) This subpart sets forth the provisions under which a student who

has neither a high school diploma nor its recognized equivalent may

become eligible to receive Title IV, HEA program funds by--

(1) Achieving a passing score, specified by the Secretary, on an

independently administered test approved by the Secretary under this

subpart; or

(2) Being enrolled in an eligible institution that participates in a

State process approved by the Secretary under this subpart.

(b) Under this subpart, the Secretary sets forth--

(1) The procedures and criteria the Secretary uses to approve tests;

(2) The basis on which the Secretary specifies a passing score on

each approved test;

(3) The procedures and conditions under which the Secretary

determines that an approved test is independently administered; and

(4) The procedures and conditions under which the Secretary

determines that a State process demonstrates that students in the

process have the ability to benefit from the education and training

being offered to them.

(Authority: 20 U.S.C. 1091(d))

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.142]

[Page 499-500]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.142 Special definitions.

The following definitions apply to this subpart:

Assessment center: A center that--

(1) Is located at an eligible institution that provides two-year or

four-year degrees, or qualifies as an eligible public vocational

institution, i.e. a ``postsecondary vocational institution;''

(2) Is responsible for gathering and evaluating information about

individual students for multiple purposes, including appropriate course

placement;

(3) Is independent of the admissions and financial aid processes at

the institution at which it is located;

(4) Is staffed by professionally trained personnel; and

(5) Does not have as its primary purpose the administration of

ability-to-benefit tests.

Computer-based test: A test taken by a student on a computer and

scored by a computer.

Disabled student: A student who has a physical or mental impairment

that substantially limits one or more major life activities, has a

record of such an impairment, or is regarded as having such an

impairment.

General learned abilities: Cognitive operations, such as deductive

reasoning, reading comprehension, or translation from graphic to

numerical representation, that may be learned in both school and non-

school environments.

Non-native speaker of English: A person whose first language is not

English and who is not fluent in English.

Secondary school level: As applied to ``content,'' ``curricula,'' or

``basic verbal and quantitative skills,'' refers to basic knowledge or

skills generally learned

[[Page 500]]

in the 9th through 12th grades in United States secondary schools.

Test administrator: An individual who may give tests under this

subpart.

Test item: A question on a test.

Test publisher: An individual, organization, or agency that owns a

registered copyright of a test, or is licensed by the copyright holder

to sell or distribute a test.

(Authority: 20 U.S.C. 1091(d))

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.143]

[Page 500]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.143 Approval of State tests or assessments.

(a) The Secretary approves tests or other assessments submitted by a

State that the State uses to measure a student's skills and abilities

for the purpose of determining whether the student has the skills and

abilities the State expects of a high school graduate in that State.

(b) The Secretary approves passing scores or other methods of

evaluation established by the State for each test or assessment

described in paragraph (a) of this section.

(c) If the Secretary approves a State's tests and assessments and

the passing scores on those tests and assessments under paragraphs (a)

and (b) of this section, that test or assessment may be used, for

purposes of section 484(d) of the HEA, only for students who attend

eligible institutions located in that State.

(d) If a State wishes to have the Secretary approve its tests or

assessments under this section, the State shall--

(1) Submit to the Secretary those tests and assessments, its passing

scores on those tests and assessments, and the educational standards

those tests and assessments measure at such time and in such manner as

the Secretary may prescribe;

(2) Provide the Secretary with an explanation of how the tests,

assessments, and passing scores are appropriate in light of the State's

educational standards; and

(3) Provide the Secretary with an assurance that the tests and

assessments will be administered in an independent, fair, and secure

manner.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61839, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.144]

[Page 500-501]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.144 Application for test approval.

Except as provided in Sec. 668.143--

(a) The Secretary only reviews tests under this subpart that are

submitted by the publisher of that test;

(b) A test publisher that wishes to have its test approved by the

Secretary under this subpart must submit an application to the Secretary

at such time and in such manner as the Secretary may prescribe. The

application shall contain all the information necessary for the

Secretary to approve the test under this subpart, including but not

limited to, the information contained in this section; and

(c) A test publisher shall include with its application--

(1) A summary of the precise editions, forms, levels, and (if

applicable) sub-tests and abbreviated tests for which approval is being

sought;

(2) The name, address, and telephone number of a contact person to

whom the Secretary may address inquiries;

(3) Each edition and form of the test for which the publisher

requests approval;

(4) The distribution of test scores for each edition, form, level,

sub-test, or partial battery, for which approval is sought, that allows

the Secretary to prescribe the passing score for each test in accordance

with Sec. 668.147;

(5) Documentation of test development, including a history of the

test's use;

(6) Norming data and other evidence used in determining the

distribution of test scores;

(7) Material that defines the content domains addressed by the test;

(8) For tests first published five years or more before the date

submitted to the Secretary for review and approval, documentation of

periodic reviews of the content and specifications of the test to ensure

that the test continues to reflect secondary school level verbal and

quantitative skills;

[[Page 501]]

(9) If a test has been revised from the most recent edition approved

by the Secretary, an analysis of the revisions, including the reasons

for the revisions, the implications of the revisions for the

comparability of scores on the current test to scores on the previous

test, and data from validity studies of the test undertaken subsequent

to the revisions;

(10) A description of the manner in which test-taking time was

determined in relation to the content representativeness requirements in

Sec. 668.146(b)(2), and an analysis of the effects of time on

performance;

(11) A technical manual that includes--

(i) An explanation of the methodology and procedures for measuring

the reliability of the test;

(ii) Evidence that different forms of the test, including, if

applicable, short forms, are comparable in reliability;

(iii) Other evidence demonstrating that the test permits consistent

assessment of individual skill and ability;

(iv) Evidence that the test was normed using--

(A) Groups that were of sufficient size to produce defensible

standard errors of the mean and were not disproportionately composed of

any race or gender; and

(B) A contemporary population representative of persons who are

beyond the usual age of compulsory school attendance in the United

States;

(v) Documentation of the level of difficulty of the test;

(vi) Unambiguous scales and scale values so that standard errors of

measurement can be used to determine statistically significant

differences in performance; and

(vii) Additional guidance on the interpretation of scores resulting

from any modifications of the tests for persons with documented

disabilities.

(12) The manual provided to test administrators containing

procedures and instructions for test security and administration, and

the forwarding of tests to the test publisher;

(13) An analysis of the item-content of each edition, form, level,

and (if applicable) sub-test to demonstrate compliance with the required

secondary school level criterion specified in Sec. 668.146(b);

(14) For performance-based tests or tests containing performance-

based sections, a description of the training or certification required

of test administrators and scorers by the test publisher;

(15) A description of retesting procedures and the analysis upon

which the criteria for retesting are based; and

(16) Other evidence establishing the test's compliance with the

criteria for approval of tests as provided in Sec. 668.146.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61839, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.145]

[Page 501-502]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.145 Test approval procedures.

Except as provided in Sec. 668.143--

(a)(1) When the Secretary receives a complete application from a

test publisher, the Secretary selects experts in the field of

educational testing and assessment, who possess appropriate advanced

degrees and experience in test development or psychometric research, to

determine whether the test meets the requirements for test approval

contained in Sec. Sec. 668.146, 668.147, 668.148, or 668.149, as

appropriate, and to advise the Secretary of their determinations;

(2) If the test involves a language other than English, the

Secretary selects at least one individual described in paragraph (a)(1)

of this section who is fluent in the language in which the test is

written to advise the Secretary on whether the test meets the additional

criteria, provisions, and conditions for test approval contained in

Sec. Sec. 668.148 and 668.149;

(b) The Secretary determines whether the test publisher's test meets

the criteria and requirements for approval after taking the advice of

the experts into account;

(c)(1) If the Secretary determines that a test satisfies the

criteria and requirements for test approval, the Secretary notifies the

test publisher of the Secretary's decision, and publishes the name of

the test and the passing scores in the Federal Register.

[[Page 502]]

(2) If the Secretary determines that a test does not satisfy the

criteria and requirements for test approval, the Secretary notifies the

test publisher of the Secretary's decision, and the reasons why the test

did not meet those criteria and requirements.

(3) The test publisher may request that the Secretary reevaluate the

Secretary's decision. Such a request must be accompanied by--

(i) Documentation and information that address the reasons for the

non-approval of the test; and

(ii) An analysis of why the information and documentation submitted

meet the criteria and requirements for test approval notwithstanding the

Secretary's earlier decision to the contrary.

(d)(1) The Secretary approves a test for a period not to exceed five

years from the date of the Secretary's written notice to the test

publisher.

(2) The Secretary extends the approval period of a test to include

the period of review if the test publisher re-submits the test for

review and approval under Sec. 668.144 at least six months before the

date on which the test approval is scheduled to expire;

(e) The approval of a test may be withdrawn if the Secretary

determines that the publisher violated any terms of the agreement

described in Sec. 668.150, or that the information the publisher

submitted as a basis for approval of the test was inaccurate;

(f) If the Secretary revokes approval of a previously approved test,

the Secretary publishes a notice of that revocation in the Federal

Register. The revocation becomes effective 120 days from the date the

notice of revocation is published in the Federal Register; and

(g) For test batteries that contain multiple sub-tests measuring

content domains other than verbal and quantitative domains, the

Secretary reviews only those subtests covering verbal and quantitative

domains.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61840, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.146]

[Page 502-503]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.146 Criteria for approving tests.

Except as provided in Sec. 668.143--

(a) Except as provided in Sec. 668.148, the Secretary approves a

test under this subpart if the test meets the criteria set forth in

paragraph (b) of this section and the test publisher satisfies the

requirements set forth in paragraph (c) of this section;

(b) To be approved under this subpart, a test shall--

(1) Assess secondary school level basic verbal and quantitative

skills and general learned abilities;

(2) Sample the major content domains of secondary school level

verbal and quantitative skills with sufficient numbers of questions to--

(i) Adequately represent each domain; and

(ii) Permit meaningful analyses of item-level performance by

students who are representative of the contemporary population beyond

the age of compulsory school attendance and have earned a high school

diploma;

(3) Require appropriate test-taking time to permit adequate sampling

of the major content domains described in paragraph (a)(2) of this

section;

(4) Have all forms (including short forms) comparable in

reliability;

(5) If the test is revised, have new scales, scale values, and

scores that are demonstrably comparable to the old scales, scale values,

and scores; and

(6) Meet all primary and applicable conditional and secondary

standards for test construction provided in the 1985 edition of the

Standards for Educational and Psychological Testing, with amendments

dated June 2, 1989, prepared by a joint committee of the American

Educational Research Association, the American Psychological

Association, and the National Council on Measurement in Education

incorporated by reference in this section. Incorporation by reference of

this document has been approved by the Director of the Office of the

Federal Register pursuant to the Director's authority under 5 U.S.C.

552(a) and 1 CFR part 51. The incorporated document is on file at the

Department of Education, Office of Postsecondary Education, Room 4318,

ROB-3, 600 Independence Avenue, S.W.,

[[Page 503]]

Washington, D.C. 20202 and 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.

The standards may be obtained from the American Psychological

Association, Inc., 750 First Street, N.W., Washington, DC 20026.

(7) Have publisher's guidelines for retesting, including time

between test-taking, be based on empirical analyses that are part of the

studies of test reliability; and

(c) In order for a test to be approved under this subpart, a test

publisher shall--

(1) Include in the test booklet or package--

(i) Clear, specific, and complete instructions for test

administration, including information for test takers on the purpose,

timing, and scoring of the test; and

(ii) Sample questions representative of the content and average

difficulty of the test;

(2) Have two or more secure, equated, alternate forms of the test;

(3) Except as provided in Sec. Sec. 668.148 and 668.149, provide

tables of distributions of test scores which clearly indicate the mean

score and standard deviation for high school graduates who have taken

the test within three years prior to the date on that the test is

submitted to the Secretary for approval under Sec. 668.144;

(4) Norm the test with--

(i) Groups that were of sufficient size to produce defensible

standard errors of the mean and were not disproportionately composed of

any race or gender; and

(ii) A contemporary population representative of persons who are

beyond the usual age of compulsory school attendance in the United

States; and

(5) If test batteries include sub-tests assessing different verbal

and/or quantitative skills, a distribution of test scores as described

in paragraph (c)(3) of this section that allows the Secretary to

prescribe either--

(i) A passing score for each sub-test; or

(ii) One composite passing score for verbal skills and one composite

passing score for quantitative skills.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61840, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996; 69

FR 18803, Apr. 9, 2004]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.147]

[Page 503]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.147 Passing scores.

Except as provided in Sec. Sec. 668.143, 668.148 and 668.149, to

demonstrate that a test taker has the ability to benefit from the

education and training offered, the Secretary specifies that the passing

score on each approved test is one standard deviation below the mean for

students with high school diplomas who have taken the test within three

years before the date on which the test is submitted to the Secretary

for approval.

(Authority; 20 U.S.C. 1091(d))

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.148]

[Page 503-504]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.148 Additional criteria for the approval of certain tests.

Except as provided in Sec. 668.143--

(a) In addition to satisfying the criteria in Sec. 668.146, to be

approved by the Secretary, a test or a test publisher must meet the

following criteria, if applicable:

(1) In the case of a test that is performance-based, or includes

performance-based sections, for measuring writing, speaking, listening,

or quantitative problem-solving skills, the test publisher must

provide--

(i) A minimum of four parallel forms of the test; and

(ii) A description of the training provided to test administrators,

and the criteria under which trained individuals are certified to

administer and score the test.

(2) In the case of a test developed for a non-native speaker of

English who is enrolled in a program that is taught in his or her native

language, the test must be--

(i) Linguistically accurate and culturally sensitive to the

population for which the test is designed, regardless of the language in

which the test is written;

[[Page 504]]

(ii) Supported by documentation detailing the development of

normative data;

(iii) If translated from an English version, supported by

documentation of procedures to determine its reliability and validity

with reference to the population for which the translated test was

designed;

(iv) Developed in accordance with guidelines provided in the 1985

edition of the ``Testing Linguistic Minorities'' section of the

Standards for Educational and Psychological Testing, with amendments

dated June 2, 1989, prepared by a joint committee of the American

Educational Research Association, the American Psychological

Association, and the National Council on Measurement in Education

incorporated by reference in this section. Incorporation by reference of

this document has been approved by the Director of the Office of the

Federal Register pursuant to the Director's authority under 5 U.S.C.

552(a) and 1 CFR part 51. The incorporated document is on file at the

Department of Education, Office of Postsecondary Education, Room 4318,

ROB-3, 600 Independence Avenue, S.W., Washington, D.C. 20202 and 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. The standards may be obtained from the

American Psychological Association, Inc., 750 First Street, N.W.,

Washington, DC 20026; and

(v)(A) If the test is in Spanish, accompanied by a distribution of

test scores that clearly indicates the mean score and standard deviation

for Spanish-speaking students with high school diplomas who have taken

the test within 5 years before the date on which the test is submitted

to the Secretary for approval; and

(B) If the test is in a language other than Spanish, accompanied by

a recommendation for a provisional passing score based upon performance

of a sample of test takers representative of the intended population and

large enough to produce stable norms.

(3) In the case of a test that is modified for use for persons with

disabilities, the test publisher must--

(i) Follow guidelines provided in the ``Testing People Who Have

Handicapping Conditions'' section of the Standards for Educational and

Psychological Testing;

(ii) Provide documentation of the appropriateness and feasibility of

the modifications relevant to test performance; and

(iii) Recommend passing score(s) based on the previous performance

of test-takers.

(4) In the case of a computer-based test, the test publisher must--

(i) Provide documentation to the Secretary that the test complies

with the basic principles of test construction and standards of

reliability and validity as promulgated in the Standards for Educational

and Psychological Testing, as well as specific guidelines set forth in

the American Psychological Association's Guidelines for Computer-based

Tests and Interpretations (1986);

(ii) Provide test administrators with instructions for familiarizing

test takers with computer hardware prior to test-taking; and

(iii) Provide two or more parallel, equated forms of the test, or,

if parallel forms are generated from an item pool, provide documentation

of the methods of item selection for alternate forms; and

(b) If a test is designed solely to measure the English language

competence of non-native speakers of English--

(1) The test must meet the criteria set forth in Sec.

668.146(b)(6), and Sec. 668.146 (c)(1), (c)(2), and (c)(4); and

(2) The test publisher must recommend a passing score based on the

mean score of test takers beyond the age of compulsory school attendance

who entered U.S. high school equivalency programs, formal training

programs, or bilingual vocational programs.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61841, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996; 69

FR 18803, Apr. 9, 2004]

[[Page 505]]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.149]

[Page 505]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.149 Special provisions for the approval of assessment procedures

for special populations for whom no tests are reasonably available.

If no test is reasonably available for persons with disabilities or

students whose native language is not English and who are not fluent in

English, so that no test can be approved under Sec. Sec. 668.146 or

668.148 for these students, the following procedures apply:

(a) Persons with disabilities. (1) The Secretary considers a

modified test or testing procedure, or instrument that has been

scientifically developed specifically for the purpose of evaluating the

ability to benefit from postsecondary training or education of disabled

students to be an approved test for purposes of this subpart provided

that the testing procedure or instrument measures both basic verbal and

quantitative skills at the secondary school level.

(2) The Secretary considers the passing scores for these testing

procedures or instruments to be those recommended by the test developer,

provided that the test administrator--

(i) Uses those procedures or instruments;

(ii) Maintains appropriate documentation, including a description of

the procedures or instruments, their content domains, technical

properties, and scoring procedures; and

(iii) Observes recommended passing scores.

(b) Students whose native language is not English. The Secretary

considers a test in a student's native language for a student whose

native language is not English to be an approved test under this subpart

if--

(1) The Secretary has not approved any test in that native language;

(2) The test was not previously rejected for approval by the

Secretary;

(3) The test measures both basic verbal and quantitative skills at

the secondary school level; and

(4) The passing scores and the methods for determining the passing

scores are fully documented.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61841, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.150]

[Page 505-506]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.150 Agreement between the Secretary and a test publisher.

(a) If the Secretary approves a test under this subpart, the test

publisher must enter into an agreement with the Secretary that contains

the provisions set forth in paragraph (b) of this section before an

institution may use the test to determine a student's eligibility for

Title IV, HEA program funds.

(b) The agreement between a test publisher and the Secretary

provides that the test publisher shall--

(1) Allow only test administrators that it certifies to give its

test;

(2) Certify test administrators who have--

(i) The necessary training, knowledge, and skill to test students in

accordance with the test publisher's testing requirements; and

(ii) The ability and facilities to keep its test secure against

disclosure or release;

(3) Decertify a test administrator for a period that coincides with

the period for which the publisher's test is approved if the test

publisher finds that the test administrator--

(i) Has repeatedly failed to give its test in accordance with the

publisher's instructions;

(ii) Has not kept the test secure;

(iii) Has compromised the integrity of the testing process; or

(iv) Has given the test in violation of the provisions contained in

Sec. 668.151;

(4) Score a test answer sheet that it receives from a test

administrator;

(5) If a computer-based test, provide the test administrator with

software that will:

(i) Immediately generate a score report for each test taker;

(ii) Allow the test administrator to send to the test publisher a

secure write-protected diskette copy of the test taker's performance on

each test

[[Page 506]]

item and the test taker's test scores; and

(iii) Prohibit any changes in test taker responses or test scores.

(6) Promptly send to the student and the institution the student

indicated he or she is attending or scheduled to attend a notice stating

the student's score for the test and whether or not the student passed

the test;

(7) Keep for a period of three years each test answer sheet or

electronic record forwarded for scoring and all other documents

forwarded by the test administrator with regard to the test;

(8) Three years after the date the Secretary approves the test and

for each subsequent three-year period, analyze the test scores of

students to determine whether the test scores produce any irregular

pattern that raises an inference that the tests were not being properly

administered, and provide the Secretary with a copy of this analysis;

and

(9) Upon request, give the Secretary, a guaranty agency, or an

accrediting agency access to test records or other documents related to

an audit, investigation, or program review of the institution, test

publisher, or test administrator.

(c)(1) The Secretary may terminate an agreement with a test

publisher if the test publisher fails to carry out the terms of the

agreement described in paragraph (b) of this section.

(2) Before terminating the agreement, the Secretary gives the test

publisher the opportunity to show that it has not failed to carry out

the terms of its agreement.

(3) If the Secretary terminates an agreement with a test publisher

under this section, the Secretary notifies institutions through

publication in the Federal Register when they may no longer use the

publisher's test(s) for purposes of determining a student's eligibility

for Title IV, HEA program funds.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61842, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.151]

[Page 506-507]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.151 Administration of tests.

(a)(1) To establish a student's eligibility for Title IV, HEA

program funds under this subpart, if a student has not passed an

approved state test, under Sec. 668.143, an institution must select a

certified test administrator to give an approved test.

(2) An institution may use the results of an approved test it

received from an approved test publisher or assessment center to

determine a student's eligibility to receive Title IV, HEA programs

funds if the test was independently administered and properly

administered.

(b) The Secretary considers that a test is independently

administered if the test is--

(1) Given at an assessment center by a test administrator who is an

employee of the center; or

(2) Given by a test administrator who--

(i) Has no current or prior financial or ownership interest in the

institution, its affiliates, or its parent corporation, other than the

interest obtained through its agreement to administer the test, and has

no controlling interest in any other educational institution;

(ii) Is not a current or former employee of or consultant to the

institution, its affiliates, or its parent corporation, a person in

control of another institution, or a member of the family of any of

these individuals;

(iii) Is not a current or former member of the board of directors, a

current or former employee of or a consultant to a member of the board

of directors, chief executive officer, chief financial officer of the

institution or its parent corporation or at any other institution, or a

member of the family of any of the above individuals; and

(iv) Is not a current or former student of the institution.

(c) The Secretary considers that a test is not independently

administered if an institution--

(1) Compromises test security or testing procedures;

(2) Pays a test administrator a bonus, commission, or any other

incentive based upon the test scores or pass rates of its students who

take the test;

[[Page 507]]

(3) Otherwise interferes with the test administrator's independence

or test administration.

(d) The Secretary considers that a test is properly administered if

the test administrator--

(1) Is certified by the test publisher to give the publisher's test;

(2) Administers the test in accordance with instructions provided by

the test publisher, and in a manner that ensures the integrity and

security of the test;

(3) Makes the test available only to a test-taker, and then only

during a regularly scheduled test;

(4) Secures the test against disclosure or release;

(5) Submits the completed test to the test publisher within two

business days after test administration in accordance with the test

publisher's instructions; and

(6) Upon request, gives the Secretary, guaranty agency, licensing

agency, accrediting agency, and law enforcement agencies access to test

records or other documents related to an audit, investigation, or

program review of the institution, or test publisher.

(e) Except as provided in Sec. 668.152, a certified test

administrator may not score a test.

(f) A student who fails to pass a test approved under this subpart

may not retake the same form of the test for the period prescribed by

the test's publisher.

(g) An institution shall maintain a record for each student who took

a test under this subpart of--

(1) The test taken by the student;

(2) The date of the test; and

(3) The student's scores as reported by the test publisher,

assessment center, or State.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: U.S.C. 1091(d))

[60 FR 61842, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996; 67

FR 67073, Nov. 1, 2002]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.152]

[Page 507]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.152 Administration of tests by assessment centers.

(a)(1) If a test is given by an assessment center, the assessment

center shall properly administer the test as described in Sec.

668.151(d).

(2) [Reserved]

(b)(1) Unless an agreement between a test publisher and an

assessment center indicates otherwise, an assessment center scores the

tests it gives and promptly notifies the institution and the student of

the student's score on the test and whether the student passed the test.

(2) If the assessment center scores the test, it must provide

annually to the test publisher--

(i) All copies of completed tests; or

(ii) A report listing all test-takers' scores and institutions to

which the scores were sent.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: U.S.C. 1091(d))

[60 FR 61843, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.153]

[Page 507-508]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.153 Administration of tests for students whose native language

is not English or for persons with disabilities.

Except as provided in Sec. 668.143--

(a) Students whose native language is not English. For a student

whose native language is not English and who is not fluent in English,

the institution shall use the following tests, as applicable:

(1) If the student is enrolled in a program conducted entirely in

his or her native language, the student must take a test approved under

Sec. Sec. 668.146 and 668.148(a)(2), or 668.149(b).

(2) If the student is enrolled in a program that is taught in

English with an ESL component, and the student is enrolled in that

program and the ESL component, the student must take either an ESL test

approved under Sec. 668.148(b), or a test in the student's native

language approved under Sec. Sec. 668.146, 668.148 or 668.149.

(3) If the student is enrolled in a program that is taught in

English without an ESL component, or the student does not enroll in the

ESL component if the institution offers such a component, the student

must take a test in English approved under Sec. 668.146.

(4) If the student enrolls in an ESL program, the student must take

an ESL test approved under Sec. 668.148(b); and

(b) Persons with disabilities. (1) An institution shall use a test

described in

[[Page 508]]

Sec. 668.148(a)(3) or 668.149(a) for a student with a documented

impairment who has neither a high school diploma nor its equivalent and

who is applying for Title IV, HEA program funds.

(2) The test must reflect the student's skills and general learned

abilities rather than reflect the student's impairment.

(3) The institution shall document that a student is disabled and

unable to be evaluated by the use of a conventional test from the list

of tests approved by the Secretary.

(4) Documentation of a student's impairment may be satisfied by--

(i) A written determination, including a diagnosis and recommended

testing accommodations, by a licensed psychologist or medical physician;

or

(ii) A record of such a determination by an elementary or secondary

school or a vocational rehabilitation agency, including a diagnosis and

recommended testing accommodations.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: U.S.C. 1091(d))

[60 FR 61843, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.154]

[Page 508]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.154 Institutional accountability.

An institution shall be liable for the Title IV, HEA program funds

disbursed to a student whose eligibility is determined under this

subpart only if the institution--

(a) Used a test administrator who was not independent of the

institution at the time the test was given;

(b) Compromises the testing process in any way; or

(c) Is unable to document that the student received a passing score

on an approved test.

(Authority: U.S.C. 1091(d))

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.155]

[Page 508]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.155 Transitional rule for the 1996-97 award year.

(a) Notwithstanding any other provision of this part, an institution

may continue to base an eligibility determination under section 484(d)

of the HEA for a student on a test that was an approved test as of June

30, 1996, and the passing score on that test, until 60 days after the

Secretary publishes in the Federal Register the name of an approved test

and the passing score on that test that is appropriate for that student.

(b) If an institution properly based a student's eligibility

determination for purposes of section 484(d) of the HEA on a test and

passing score that was in effect on June 30, 1996, the institution does

not have to redetermine the student's eligibility based upon a test and

passing score that was approved under Sec. Sec. 668.143 through

668.149.

(Authority: U.S.C. 1091(d))

[Code of Federal Regulations]

[Title 34, Volume 3]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR668.156]

[Page 508-509]

TITLE 34--EDUCATION

CHAPTER VI--OFFICE OF POSTSECONDARY EDUCATION, DEPARTMENT OF EDUCATION

PART 668_STUDENT ASSISTANCE GENERAL PROVISIONS--Table of Contents

Subpart J_Approval of Independently Administered Tests; Specification of

Passing Score; Approval of State Process

Sec. 668.156 Approved State process.

(a)(1) A State that wishes the Secretary to consider its State

process as an alternative to achieving a passing score on an approved,

independently administered test for the purpose of determining a

student's eligibility for Title IV, HEA program funds must apply to the

Secretary for approval of that process.

(2) To be an approved State process, the State process does not have

to include all the institutions located in that State, but must indicate

which institutions are included.

(b) The Secretary approves a State's process if--

(1) The State administering the process can demonstrate that the

students it admits under that process without a high school diploma or

its equivalent, who enroll in participating institutions have a success

rate as determined under paragraph (h) of this section that is within 95

percent of the success rate of students with high school diplomas; and

(2) The State's process satisfies the requirements contained in

paragraphs (c) and (d) of this section.

(c) A State process must require institutions participating in the

process to provide each student they admit without a high school diploma

or its recognized equivalent with the following services--

(1) Orientation regarding the institution's academic standards and

requirements, and student rights;

(2) Assessment of each student's existing capabilities through means

other than a single standardized test;

(3) Tutoring in basic verbal and quantitative skills, if

appropriate;

[[Page 509]]

(4) Assistance in developing educational goals;

(5) Counseling, including counseling regarding the appropriate class

level for that student given the student's individual's capabilities;

and

(6) Follow-up by teachers and counselors regarding the student's

classroom performance and satisfactory progress toward program

completion.

(d) A State process must--

(1) Monitor on an annual basis each participating institution's

compliance with the requirements and standards contained in the State's

process;

(2) Require corrective action if an institution is found to be in

noncompliance with the State process requirements; and

(3) Terminate an institution from the State process if the

institution refuses or fails to comply with the State process

requirements.

(e)(1) The Secretary responds to a State's request for approval of

its State's process within six months after the Secretary's receipt of

that request. If the Secretary does not respond by the end of six

months, the State's process becomes effective.

(2) An approved State process becomes effective for purposes of

determining student eligibility for Title IV, HEA program funds under

this subpart six months after the date on which the State submits the

process to the Secretary for approval, if the Secretary approves, or

does not disapprove, the process during that six month period.

(f) The Secretary approves a State process for a period not to

exceed five years.

(g)(1) The Secretary withdraws approval of a State process if the

Secretary determines that the State process violated any terms of this

section or that the information that the State submitted as a basis for

approval of the State process was inaccurate.

(2) The Secretary provides a State with the opportunity to contest a

finding that the State process violated any terms of this section or

that the information that the State submitted as a basis for approval of

the State process was inaccurate.

(h) The State shall calculate the success rates as referenced in

paragraph (b) of this section by--

(1) Determining the number of students with high school diplomas

who, during the applicable award year described in paragraph (i) of this

section, enrolled in participating institutions and--

(i) Successfully completed education or training programs;

(ii) Remained enrolled in education or training programs at the end

of that award year; or

(iii) Successfully transferred to and remained enrolled in another

institution at the end of that award year;

(2) Determining the number of students with high school diplomas who

enrolled in education or training programs in participating institutions

during that award year;

(3) Determining the number of students calculated in paragraph

(h)(2) of this section who remained enrolled after subtracting the

number of students who subsequently withdrew or were expelled from

participating institutions and received a 100 percent refund of their

tuition under the institutions' refund policies;

(4) Dividing the number of students determined in paragraph (h)(1)

of this section by the number of students determined in paragraph (h)(3)

of this section;

(5) Making the calculations described in paragraphs (h)(1) through

(h)(4) of this section for students without a high school diploma or its

recognized equivalent who enrolled in participating institutions.

(i) For purposes of paragraph (h) of this section, the applicable

award year is the latest complete award year for which information is

available that immediately precedes the date on which the State requests

the Secretary to approve its State process, except that the award year

selected must be one of the latest two completed award years preceding

that application date.

(Approved by the Office of Management and Budget under control number

1840-0627)

(Authority: 20 U.S.C. 1091(d))

[60 FR 61843, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]

[[Page 510]