1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Paragraph (d) of subdivision (4) of Section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, requires students who are first receiving State aid in academic year 2006–2007, to have a certificate of graduation from a recognized school providing secondary education within the United States, or the recognized equivalent of such certificate, or have been admitted to such institution after receiving a passing score on a federally approved ability-to-benefit test that has been independently administered and evaluated, as provided by the commissioner.

Paragraph (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, requires students seeking State financial aid for the first time in the 2007–2008 academic year or thereafter, to have a certificate of graduation from a school providing secondary education from a state within the United States or the recognized equivalent of such certificate, or receive a passing score on a federally approved ability-to-benefit test that has been identified by the Board of Regents as satisfying the eligibility requirements of this section and has been independently administered and evaluated as defined by the Commissioner.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the legislative objectives of the above-referenced statutes by establishing procedures for the identification of acceptable federally approved ability-to-benefit tests and the passing scores for such tests, and the requirements for the independent administration of such tests so that students applying for State student financial aid for the first time in academic year 2007–2008, who do not hold a diploma from a high school located in the United States, or its recognized equivalent, may be found eligible for such aid.

3. NEEDS AND BENEFITS:

Education Law Section 661 sets forth the eligibility requirements and procedures governing awards and loans under the State student financial aid programs established in Articles 13 and 14 of the Education Law. Chapter 57 of the Laws of 2007, adds paragraphs (d) and (e) to subdivision (4) of Section 661 of the Education Law, setting forth new requirements to be met by students who do not hold diplomas from high schools located within the United States, or its recognized equivalent, seeking State financial aid for the first time in the 2007–2008 academic year.

Currently, under the federal Higher Education Act, students seeking to qualify for Pell grants or other federal Title IV aid who do not have a high school diploma or its recognized equivalent must demonstrate the ability to benefit from the education or training provided by achieving a score set by the Secretary of the United States Department of Education (“Secretary”) on an ability-to-benefit test approved by the Secretary. At this time, there are seven ability-to-benefit tests approved by the Secretary: Accuplacer, ASSET Program/Compass, Career Programs Assessment (CPAt), Combined English Language Skills Assessment (CELSA), Descriptive Tests of Language Skills (DTLS) and Descriptive Tests of Mathematical Skills (DTMS), Wonderlic Basic Skills Test, and WorkKeys Program.

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary, on an ability-to-benefit test approved by the Secretary. Section 661(4)(e) of the Education Law, as added by Chapter 57 of the Laws of 2007, modifies this requirement. Now, students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on an ability-to-benefit test approved by the Board of Regents and the test must be independently administered as defined by the Commissioner.

The proposed regulation requires the Board of Regents to publish a list of the federally approved ability-to-benefit tests that the Board of Regents has identified as satisfactory in determining eligibility for State aid for students without a high school diploma from the United States, or its recognized equivalent. For the fall semester of the 2007–2008 academic year, all seven federally approved ability-to-benefit tests may be used. For terms subsequent to the fall semester of the 2007–2008 academic year, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Board of Regents identifies as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the department determines that a test is no longer satisfactory in determining eligibility for awards and loans or the Secretary discontinues federal recognition of such test.

The proposed amendment requires each eligible institution to submit for approval by the Board of Regents, the passing score it proposes to utilize on any approved ability-to-benefit test, however, the passing score may not be lower than the federally approved score for such test. For the fall semester of the 2007–2008 academic term, eligible institutions may utilize any passing score that is not lower than the federally approved score. For academic terms subsequent to the fall semester of the 2007–2008 academic term, in determining whether to approve an institution's proposed passing score, the proposed amendment requires that the Board of Regents take into consideration the following factors; (1) the curricula the institution offers; (2) the admission criteria and procedures the institution uses to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services that the student needs to complete the program; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study; (4) the adequacy of the academic support services the institution provides; and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support that the student needs to complete the program. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Board of Regents determines that such passing score is no longer satisfactory in determining eligibility for awards and loans under Section 661 of the Education Law.

The proposed regulation also sets forth the factors the Department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the fall semester of the 2007–2008 academic year, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For academic terms subsequent to the fall semester of the 2007–2008 academic year, the regulation provides that an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution for which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible institution, the chief executive officer of such institution shall provide an annual certification to the Department that it independently administers such tests according to the factors delineated in the regulation. If the Department finds that an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

4. COSTS:

(a) Costs to State government. This amendment will not impose any additional costs on State government over and above those resulting from the enactment of Chapter 57 of the Laws of 2007.

(b) Costs to local government. The State Education Department believes that the proposed amendment will result in minimal costs over and above those resulting from enactment of Chapter 57 of the Laws of 2007.

The proposed amendment may impose negligible costs on institutions eligible to participate in State student financial aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to utilize. However, once the institution's passing score(s) is approved by the Board of Regents, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each such eligible institution would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the requirements set forth in the text of the regulation. The majority of the requirements set forth in the regulation for the independent administration of such tests duplicate the requirements set forth in the federal Higher Education Act and its corresponding federal regulations. Therefore, eligible institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed by this regulation should be minimal.

Since the amendment proposes minimal reporting and recordkeeping requirements, the Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

Minimal costs may arise in the sponsor contributions to the budgets of community colleges that are subject to approval by the sponsoring local government(s).

(c) Costs to private regulated parties. As stated above under “Costs to local government”, private regulated parties may incur minimal costs to submit an application for approval of the passing score it proposes to utilize and to complete the annual certification required of institutions that wish to administer ability-to-benefit tests on campus.

(d) Costs to the regulatory agency. The proposed amendment may add one time negligible additional responsibilities for the State Education Department to develop a basic application and an annual certification form. The Department will administer the program using existing staff and resources.

5. LOCAL GOVERNMENT MANDATES:

As noted above, the proposed amendment establishes procedures for identifying acceptable federally approved ability-to-benefit tests, the passing scores for such tests and the requirements for the independent administration of such tests, for students applying for State student financial aid for the first time in academic year 2007–2008, who do not hold a diploma from a high school located in the United States, or its recognized equivalent. It will affect all institutions eligible to participate in State student financial aid programs, including locally-sponsored community colleges that admit such students and seek to qualify them for State student financial aid. The State Education Department estimates that at least 21 community colleges may be affected by the proposed regulation.

6. PAPERWORK:

The proposed amendment requires additional paperwork only for institutions eligible to participate in State student aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the State Education Department, in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each such eligible institution would also be required to have its chief executive officer annually certify to the Department that its administration of the tests meets the requirements set forth in the text of the regulation.

Since the amendment proposes minimal reporting and recordkeeping requirements, the Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

7. DUPLICATION:

The provisions of the proposed amendment are required to carry into effect the requirements of paragraph (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007. The criteria the State Education Department will utilize in reviewing applications by eligible institutions to set passing scores on acceptable ability-to-benefit tests are already required of those institutions in the standards for the registration of undergraduate and graduate curricula set forth in Part 52 of the Regulations of the Commissioner of Education. The definition for assessment center is similar to the federal definition set forth in Section 668.142 of the Code of Federal Regulations and the criteria set forth in the proposed amendment for independent administration builds upon the federal requirements set forth in Section 668-151 of the Code of Federal Regulations.

8. ALTERNATIVES:

In developing the proposed regulation, the State Education Department consulted with a working group that represented The City University of New York Central Administration, the State University of New York System Administration, Clarkson University, The College of New Rochelle, Touro College, the Commission on Independent Colleges and Universities, Monroe College, Plaza College, the Association of Proprietary Colleges, and the New York State Higher Education Services Corporation. The proposed regulation represents the result of that consultation. There are no viable alternatives to the proposed amendment.

9. FEDERAL STANDARDS:

The proposed amendment builds on federal standards for the administration of federal student financial aid programs established under Title IV of the Higher Education Act and its corresponding regulations. Specifically, the definition for assessment center is similar to the federal definition set forth in Section 668.142 of the Code of Federal Regulations and the criteria set forth in the proposed amendment for independent administration builds upon the federal requirements set forth in Section 668-151 of the Code of Federal Regulations.

10. COMPLIANCE SCHEDULE:

The amendment would be effective on its stated effective date.

(a) Small Businesses:

1. EFFECT OF RULE:

In order to implement the requirements of paragraphs (d) and (e) of subdivision (4) of Section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, the proposed amendment sets forth the procedures for the identification of federally approved ability-to-benefit tests and the passing scores for such tests that the Board of Regents will deem approved as an alternative for students applying for State financial aid, and the requirements for the independent administration of such tests. The State Education Department estimates that 21 of the eligible 42 proprietary colleges in the State are small businesses with 100 or fewer employees.

2. COMPLIANCE REQUIREMENTS:

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary of the United States Department of Education (“Secretary”), on an ability-to-benefit test approved by the Secretary. Section 661(4)(e) of the Education Law, as added by Chapter 57 of the Laws of 2007, modifies this requirement. Now, students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on a federally approved ability-to-benefit test identified by the Board of Regents as satisfactory in determining eligibility for awards and loans and the test must be independently administered as defined by the Commissioner.

The proposed regulation requires the Board of Regents to publish a list of the federally approved ability-to-benefit tests that the Board of Regents has identified as satisfactory in determining eligibility for State aid for students without a high school diploma from the United States, or its recognized equivalent. For the fall semester of the 2007–2008 academic year, all seven federally approved ability-to-benefit tests may be used. For terms subsequent to the fall semester of the 2007–2008 academic year, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Board of Regents identifies as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the department determines that a test is no longer satisfactory in determining eligibility for awards and loans or the Secretary discontinues federal recognition of such test.

The proposed amendment requires each eligible institution to submit for approval by the Board of Regents, the passing score it proposes to utilize on any approved ability-to-benefit test, however, the passing score may not be lower than the federally approved score for such test. For the fall semester of the 2007–2008 academic term, eligible institutions may utilize any passing score that is not lower than the federally approved score. For academic terms subsequent to the fall semester of the 2007–2008 academic term, in determining whether to approve an institution's proposed passing score, the proposed amendment requires that the Board of Regents take into consideration the following factors: (1) the curricula the institution offers; (2) the admission criteria and procedures the institution uses to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services that the student needs to complete the program; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study; (4) the adequacy of the academic support services the institution provides; and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support that the student needs to complete the program. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Board of Regents determines that such passing score is no longer satisfactory in determining eligibility for awards and loans under Section 661 of the Education Law.

The proposed regulation also sets forth the factors a department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the fall semester of the 2007–2008 academic year, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For academic terms subsequent to the fall semester of the 2007–2008 academic year, the regulation provides that an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution at which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible institution, the chief executive officer of such institution shall provide an annual certification to the Department that it independently administers such tests according to the factors delineated in the regulation. If the Department finds that an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

3. PROFESSIONAL SERVICES:

The proposed amendment will not require eligible institutions that are classified as small businesses to hire professional services to comply. The State Education Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

4. COMPLIANCE COSTS:

The proposed amendment may impose negligible costs on institutions eligible to participate in State student aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the State Education Department, in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. However, once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each such eligible institution would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the requirements set forth in the text of the regulation. The majority of the requirements set forth in the regulation for the independent administration of such tests duplicate requirements set forth in the federal Higher Education Act and its corresponding federal regulations. Therefore, eligible institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed by this regulation should be minimal.

Since the amendment proposes minimal reporting and recordkeeping requirements, the Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment will not impose any technological requirements on eligible institutions that are classified as small businesses, and is economically feasible. Se above “Compliance Costs” for the economic impact of the amendment.

6. MINIMIZING ADVERSE IMPACT:

Paragraphs (d) and (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, applies equally to all institutions eligible to participate in State student financial aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid, including those classified as small businesses. Consequently, the State Education Department believes that the proposed amendment, which sets forth the procedures for identification of federally approved ability-to-benefit tests and the passing scores for such tests, and the requirements for the independent administration of such tests must be uniformly applied to all such institutions.

7. SMALL BUSINESS PARTICIPATION:

Before drafting the proposed amendment, the State Education Department convened a working group comprised of persons knowledgeable about student financial aid and academic affairs, from all four sectors of higher education, including proprietary colleges that are classified as small businesses, as well as the president of the association of proprietary colleges, many of which are classified as small businesses. The comments they provided were taken into consideration when drafting the proposed amendment.

(b) Local Governments:

1. EFFECT OF RULE:

In order to implement the requirements of paragraphs (d) and (e) of subdivision (4) of Section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, the proposed amendment sets forth the procedures for the identification of federally approved ability-to-benefit tests and the passing scores for such tests that the Board of Regents will deem approved as an alternative for students applying for State financial aid, and the requirements for the independent administration of such tests. The State Education Department estimates that at least 21 community colleges may be effected by the proposed amendment.

2. COMPLIANCE REQUIREMENTS:

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary of the United States Department of Education (“Secretary”), on an ability-to-benefit test approved by the Secretary. Section 661(4)(e) of the Education Law, as added by Chapter 57 of the Laws of 2007, modifies this requirement. Now, students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on a federally approved ability-to-benefit test identified by the Board of Regents as acceptable for determining eligibility for awards and loans and the test must be independently administered, as defined by the Commissioner.

The proposed regulation requires the Board of Regents to publish a list of the federally approved ability-to-benefit tests that the Board of Regents has identified as satisfactory in determining eligibility for State aid for students without a high school diploma from the United States, or its recognized equivalent. For the fall semester of the 2007–2008 academic year, all seven federally approved ability-to-benefit tests may be used. For terms subsequent to the fall semester of the 2007–2008 academic year, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Board of Regents identifies as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the department determines that a test is no longer satisfactory in determining eligibility for awards and loans or the Secretary discontinues federal recognition of such test.

The proposed amendment requires each eligible institution to submit for approval by the Board of Regents, the passing score it proposes to utilize on any approved ability-to-benefit test, however, the passing score may not be lower than the federally approved score for such test. For the fall semester of the 2007–2008 academic term, eligible institutions may utilize any passing score that is not lower than the federally approved score. For academic terms subsequent to the fall semester of the 2007–2008 academic term, in determining whether to approve an institution's proposed passing score, the proposed amendment requires that the Board of Regents take into consideration the following factors: (1) the curricula the institution offers; (2) the admission criteria and procedures the institution uses to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services that the student needs to complete the program; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study; (4) the adequacy of the academic support services the institution provides; and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support that the student needs to complete the program. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Board of Regents determines that such passing score is no longer satisfactory in determining eligibility for awards and loans under Section 661 of the Education Law.

The proposed regulation also sets forth the factors a department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the fall semester of the 2007–2008 academic year, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For academic terms subsequent to the fall semester of the 2007–2008 academic year, the regulation provides that an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution for which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible institution, the chief executive officer of such institution shall provide an annual certification to the Department that it independently administers such tests according to the factors delineated in the regulation. If the Department finds that an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

3. PROFESSIONAL SERVICES:

The proposed amendment will not require eligible community colleges to hire professional services to comply. The State Education Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

4. COMPLIANCE COSTS:

The State Education Department believes that the proposed amendment will result in minimal costs over and above those resulting from enactment of Chapter 57 of the Laws of 2007.

The proposed amendment may impose negligible costs on institutions eligible to participate in State student financial aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the State Education Department, in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. However, once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each such eligible institution would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the requirements set forth in the text of the regulation. The majority of the requirements set forth in the regulation for the independent administration of such tests duplicate the requirements set forth in the federal Higher Education Act and its corresponding federal regulations. Therefore, eligible institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed by this regulation should be minimal.

Since the amendment proposes minimal reporting and recordkeeping requirements, the Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

Minimal costs may arise in the sponsor contributions to the budgets of community colleges that are subject to approval by the sponsoring local government(s).

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment will not impose any technological requirements on eligible community colleges, and is economically feasible. Se above “Compliance Costs” for the economic impact of the amendment.

6. MINIMIZING ADVERSE IMPACT:

Paragraph (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, applies equally to all institutions eligible to participate in State student aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid, including community colleges. Consequently, the State Education Department believes that the proposed amendment, which sets forth the procedures for the identification of acceptable federally approved ability-to-benefit tests and the passing scores for such tests, and the requirements for the independent administration of such tests, shall apply uniformly to all such institutions.

7. LOCAL GOVERNMENT PARTICIPATION:

Before drafting the proposed amendment, the State Education Department convened a work group comprised of persons knowledgeable about student financial aid and academic affairs, from all four sectors of higher education, including the Vice Chancellor for Community Colleges and other staff of the State University of New York System Administration and comparable staff of The City University of New York central administration. The comments they provided were taken into consideration when drafting the proposed amendment.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment establishes the procedures for the identification of acceptable federally approved ability-to-benefit tests and the passing scores for such tests, and the requirements for the independent administration of such tests, so that students applying for State student financial aid for the first time in the 2007–2008 academic year who do not hold a diploma from a high school located in the United States, or its recognized equivalent, may be found eligible for such aid. The proposed regulation only applies to institutions eligible to participate in State student financial aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid. The Department estimates that approximately 54 degree-granting institutions would be affected by the proposed regulation. Of these, the Department estimates that approximately 13 to 15 are located in the State's 44 rural counties with fewer than 200,000 inhabitants and 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

Prior to the 2007–2008 academic year, a student applying for State student financial aid who did not have a diploma from a U.S. high school, or its recognized equivalent, was required to achieve a passing score set by the Secretary of the United States Department of Education (“Secretary”), on an ability-to-benefit test approved by the Secretary. Section 661(4)(e) of the Education Law, as added by Chapter 57 of the Laws of 2007, modifies this requirement. Now, students seeking State financial aid for the first time in the 2007–2008 academic year, without a high school diploma or the recognized equivalent of such, must achieve a passing score on a federally approved ability-to-benefit test identified by the Board of Regents as satisfactory in determining eligibility and the test must be independently administered, as defined by the Commissioner.

The proposed regulation requires the Board of Regents to publish a list of the federally approved ability-to-benefit tests that the Board of Regents has identified as satisfactory in determining eligibility for State aid for students without a high school diploma from the United States, or its recognized equivalent. For the fall semester of the 2007–2008 academic year, all seven federally approved ability-to-benefit tests may be utilized. For academic terms subsequent to the fall semester of the 2007–2008 academic year, the Department intends to identify and publish a list of federally approved ability-to-benefit tests that the Board of Regents identifies as satisfactory in determining eligibility to receive a State aid award. Once identified, such tests shall be without term unless the department determines that a test is no longer satisfactory in determining eligibility for awards and loans or the Secretary discontinues federal recognition of such test.

The proposed amendment requires each eligible institution to submit for approval by the Board of Regents, the passing score it proposes to utilize on any approved ability-to-benefit test, however, the passing score may not be lower than the federally approved score for such test. However, for the fall semester of the 2007–2008 academic term, eligible institutions may utilize any passing score that is not lower than the federally approved score. For academic terms subsequent to the fall semester of the 2007–2008 academic term, in determining whether to approve an institution's proposed passing score, the proposed amendment requires that the Board of Regents take into consideration the following factors; (1) the curricula the institution offers; (2) the admission criteria and procedures the institution uses to evaluate the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support services that the student needs to complete the program; (3) evidence that the admission criteria and procedures that the institution utilizes are effective in admitting only persons who have the capacity to undertake a course of study; (4) the adequacy of the academic support services the institution provides and (5) evidence that the institution evaluates the success of its academic and other support services in providing instructional and other support that the student needs to complete the program. Once approved, an institution's passing score(s) will remain approved unless the institution proposes to change such score(s) or the Board of Regents determines that such passing score is no longer satisfactory in determining eligibility for awards and loans under Section 661 of the Education Law.

The proposed regulation also sets forth the factors the Department will consider to determine if an ability-to-benefit is independently administered and evaluated. For the fall semester of the 2007–2008 academic year, the test will be deemed independently administered if its administration meets the criteria set forth in federal regulations. For academic terms subsequent to the fall semester of the 2007–2008 academic year, the regulation provides that an ability-to-benefit test is independently administered if the test is administered by an assessment center not located at, or affiliated with, the institution for which the student is seeking enrollment and the test administrator is an employee of such center. If the ability-to-benefit test is administered at an eligible institution, the chief executive officer of such institution shall provide an annual certification to the Department that it independently administers such tests according to the factors delineated in the regulation. If the Department finds that an institution has violated the certification procedure or the federal ability-to-benefit procedures, it may require the institution to use an assessment center external to the institution.

The proposed amendment will not require eligible institutions, including those located in rural areas, to hire professional services to comply.

3. COSTS:

The proposed amendment may impose negligible costs on institutions eligible to participate in State student aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid, including those located in rural areas. Each such eligible institution would be required to submit an application for approval of the passing score it proposes to use, including information to assist the State Education Department, in determining whether to approve a score, about the curricula the institution offers, admission criteria and procedures the institution uses in its evaluation of the capacity of a student to undertake a course of study and the capacity of the institution to provide instructional and other support that the student needs to complete the program, and adequacy of the academic support services the institution provides. However, once approved, an institution's passing score(s) will remain approved unless the institution proposes to change them or the Department revokes the approval for cause.

To administer an ability-to-benefit test on campus, each such eligible institution would be required to submit to the Department an annual certification by their chief executive officer that its administration of these tests meets the requirements set forth in the text of the regulation. The majority of the requirements set forth in the regulation for the independent administration of such tests duplicate the requirements set forth in the federal Higher Education Act and its corresponding regulations. Therefore, eligible institutions should already be administering ability-to-benefit tests in a similar manner and any additional costs imposed by this regulation should be minimal.

Since the amendment proposes minimal reporting and recordkeeping requirements, the Department expects that existing staff at eligible institutions will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment makes no exception for eligible institutions that are located in rural areas. Paragraph (e) of subdivision (4) of section 661 of the Education Law, as added by Chapter 57 of the Laws of 2007, applies equally to all institutions eligible to participate in State student aid programs that admit students without a diploma from a U.S. high school and seek to qualify such students for State student financial aid, including those located in rural areas. Consequently, the State Education Department believes that the proposed amendment, which sets forth the procedures for the identification of acceptable federally approved ability-to-benefit tests and scores on such tests, and the requirements for the independent administration of such tests, required by paragraph (e) of subdivision (4) of section 661, also must apply uniformly to all such institutions, including those located in rural areas and that it would be inappropriate to establish different standards for eligible institutions located in rural areas.

5. RURAL AREA PARTICIPATION:

Before drafting the proposed amendment, the State Education Department convened a work group comprised of persons knowledgeable about student financial aid and academic affairs from all four sectors of higher education. The group included representatives of eligible institutions located in rural areas, as well as of the Association of Proprietary Colleges, the Commission on Independent Colleges and Universities, and the State University of New York system administration, many of whose institutions or campuses are located in rural areas. The comments they provided were taken into consideration when drafting the proposed amendment.

The purpose of the proposed amendment is to identify certain ability-to-benefit tests and the passing scores for such tests that the Board of Regents approves for purposes of eligibility for awards and loans under Section 661 of the Education Law. The proposed amendment also establishes criteria that the Department will utilize to determine if an approved ability-to-benefit test is independently administered; in order to implement the requirements of Chapter 57 of the Laws of 2007.

Because it is evident from the nature of the proposed amendment that it will not affect jobs or employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.