[Federal Register Volume 71, Number 201 (Wednesday, October 18, 2006)]
[Proposed Rules]
[Pages 61580-61593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8709]



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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

  Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / 
Proposed Rules  

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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: www.regulations.gov.
    Or you may send your Internet comments to us at the following 
address: [email protected].
    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: 
[email protected].
    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'

[[Page 61581]]

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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