Adult ED NPRM

Wednesday,
October 18, 2006

Part III

Department of
Education

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34 CFR Part 462
Measuring Educational Gain in the
National Reporting System for Adult
Education; Proposed Rule

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Federal Register / Vol. 71, No. 201 / Wednesday, October 18, 2006 / Proposed Rules
Invitation To Comment

DEPARTMENT OF EDUCATION
34 CFR Part 462
Measuring Educational Gain in the
National Reporting System for Adult
Education
Office of Vocational and Adult
Education, Department of Education.
ACTION: Notice of proposed rulemaking.

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AGENCY:

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: NRSregulations@ed.gov.
You must include the term ‘‘Part 462’’
in the subject line of your electronic
message.
If you want to comment on the
information collection requirements,
you must send your comments to the
Office of Management and Budget at the
address listed in the Paperwork
Reduction Act section of this preamble.
You may also send a copy of these
comments to the Department
representative named in this section.
FOR FURTHER INFORMATION CONTACT:
Mike Dean, U.S. Department of
Education, 400 Maryland Avenue, SW.,
room 11152, Potomac Center Plaza,
Washington, DC 20202–7240.
Telephone: (202) 245–7828 or via
Internet: Mike.Dean@ed.gov.
If you use a telecommunications
device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at 1–
800–877–8339.
Individuals with disabilities may
obtain this document in an alternative
format (e.g., Braille, large print,
audiotape, or computer diskette) on
request to the contact person listed
under FOR FURTHER INFORMATION
CONTACT.
SUPPLEMENTARY INFORMATION:

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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

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programs that measure program
effectiveness on the basis of student
academic achievement and other
outcomes. The Act establishes three
core indicators that must be used to
assess State performance:
• Demonstrated improvements in
literacy skill levels in reading, writing,
and speaking the English language,
numeracy, problem solving, English
language acquisition, and other literacy
skills as defined by the Secretary
(educational gain).
• Placement in, retention in, or
completion of postsecondary education,
training, unsubsidized employment, or
career advancement.
• Receipt of a secondary school
diploma or a recognized equivalent.
The Department and each State reach
agreement on annual levels of
performance for each of the core
indicators, and States annually report
their actual performance in the NRS.
In order to help States validly
demonstrate and accurately report their
annual improvements in literacy skill
levels and other core indicators of
performance, and after extensive
consultation with State directors of
adult education, representatives from
volunteer provider agencies, directors of
local adult education programs, and
experts on accountability systems, the
Department established the NRS. The
NRS standardizes the measurement of
the core indicators across States and
establishes procedures for collecting
and reporting student outcome data to
enhance the data’s validity and
reliability.
To further assist States, the
Department also issued Implementation
Guidelines: Measures and Methods for
the National Reporting System for Adult
Education (Guidelines), which
established reporting requirements, data
collection policies, and common
definitions for each of the core outcome
measures or indicators. (The Guidelines
are on the Internet at http://
www.nrsweb.org). As set forth in the
Guidelines, the NRS measures
educational gain by defining, using
standardized tests, a set of educational
functioning levels at which students are
initially placed based on their abilities
to perform literacy-related tasks in
specific skill areas. After a specific time
period or number of instructional hours
established by the State, students are
again assessed to determine their skill
levels. If a student’s skills have
improved sufficiently to be placed one
or more levels higher, the student is
considered to have made an educational
gain.
The Guidelines identify a number of
standardized tests (along with the tests’

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

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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 § 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 § 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

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publishers would also be able to readily
make tests available to States and local
eligible providers for use in the NRS.
Proposed § 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 § 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 § 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 § 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 § 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 § 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 § 462.12(a)(2)
identifies the circumstances when the
Secretary would determine the
suitability of a test. Proposed § 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 § 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-asecond 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 § 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
§ 462.13 would establish the
requirements for tests that have been
modified for an individual with a
disability. Proposed § 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

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publisher’s application must ultimately
demonstrate that a test meets the criteria
and requirements in § 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 § 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 § 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 § 462.14
would clarify for test publishers how
often and under which circumstances a
test must be reviewed by the Secretary.
Proposed §§ 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
§§ 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

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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 ‘‘§’’
and a numbered heading; for example,
§ 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

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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

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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 × 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

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?

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.

Subpart C—[Reserved]

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.

Authority: 20 U.S.C. 9212, unless
otherwise noted.

(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.

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PART 462—MEASURING
EDUCATIONAL GAIN IN THE
NATIONAL REPORTING SYSTEM FOR
ADULT EDUCATION

Dated: October 11, 2006.
Margaret Spellings,
Secretary of Education.

15:30 Oct 17, 2006

Subpart A—General
§ 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)
§ 462.2

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:

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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?

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What regulations apply?

The following regulations apply to
this part:
(a) The Education Department General
Administrative Regulations (EDGAR) as
follows:

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(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)
§ 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 § 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;

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(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 § 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 § 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 § 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

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is licensed by the copyright holder to
sell or distribute a test.
(Authority: 20 U.S.C. 9202, 9212)
§ 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?
§ 462.10
tests?

How does the Secretary review

(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)
§ 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 § 462.44.
(2) The name, address, e-mail address,
and telephone and fax numbers of a

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contact person to whom the Secretary
may address inquiries.
(3) A summary of the precise editions,
forms, levels, and, if applicable, subtests 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 § 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

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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 § 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

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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 testtaking 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 § 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

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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 § 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 standardsetting studies undertaken subsequent
to the revisions.
(Authority: 20 U.S.C. 9212)
§ 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 § 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 § 462.11 of this part.
(b) Secretary’s determination. (1) The
Secretary determines whether a test
meets the criteria and requirements in
§ 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 subtests measuring content domains other
than those of the NRS educational
functioning levels, the Secretary

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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 § 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
§ 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 § 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.

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(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)
§ 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

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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)
§ 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
§ 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.

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

Subpart C—[Reserved]
Subpart D—What Requirements Must
States and Local Eligible Providers
Follow When Measuring Educational
Gain?

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§ 462.40
policy?

Must a State have an assessment

(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

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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 inservice 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 inservice training.
(Approved by the Office of Management and
Budget under control number 1830–0027)
(Authority: 20 U.S.C. 9212)
§ 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

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(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)
§ 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
§ 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
§ 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 § 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 § 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)

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(Authority: 20 U.S.C. 9212)
§ 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
§ 462.41(b), with the student’s
educational functioning level as
measured by the post-test described in
§ 462.41(c).

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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 § 462.42(d)(1), the
local eligible provider would use the

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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

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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)
§ 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:
BILLING CODE 4000–01–P

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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]
BILLING CODE 4000–01–C

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