S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2333

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 14, 2013
                               ___________

Introduced  by  M. of A. PAULIN, ARROYO, BENEDETTO -- Multi-Sponsored by
  -- M. of A. BRENNAN, WRIGHT -- read once and referred to the Committee
  on Education

AN ACT to require annual reports and create a regents  review  board  to
  audit  assessments  used  to  determine grade promotion, graduation or
  adequate yearly progress for validity, reliability, alignment to stan-
  dards and appropriateness of use

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Legislative findings. The legislature finds that the state
board of regents has established five examinations to authenticate  that
a  regents diploma may be conferred upon a high school student. Examina-
tions established by the state  board  of  regents  in  mathematics  and
English  language  arts  to  be administered in the third through eighth
grades, as well as in high school, are utilized to determine whether  or
not a school, and ultimately a school district, has made adequate yearly
progress  (AYP)  under  the  federal  No  Child  Left Behind Act (NCLB).
Schools or districts that fail to  demonstrate  AYP  are  subject  to  a
series  of sanctions culminating in closing and reorganizing the schools
in question. This increases the emphasis on state mandated  standardized
examinations having real, high stakes consequences for both students and
schools. Therefore, it is essential that these examinations be valid and
reliable  measures of student attainments in learning and that they be a
demonstratively scientifically accurate means of determining a student's
readiness for graduation or grade  promotion,  and  a  school's  overall
performance.  Holding  students  and educators to high standards demands
holding tests to high psychometric and curricular standards.
  Furthermore, the federal NCLB requires that assessments used for grad-
uation, promotion and to determine a school's AYP be  "valid  and  reli-
able,  and  be  consistent  with relevant, nationally recognized profes-
sional and technical standards." 20 U.S.C. sec.  6311(b)(3)(C)(iii).

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03211-01-3
              

A. 2333                             2

  While much effort has been made by the commissioner of  education  and
the  state  board  of regents to develop and disseminate testing instru-
ments used for graduation, promotion and determination  of  AYP,  it  is
necessary  to  ensure that these assessments meet professional standards
for validity, reliability, alignment to learning standards and appropri-
ateness  of  use.  As  a preliminary matter, a technical manual does not
exist for the various examinations, a basic requirement  of  the  guide-
lines of the American Educational Research Association (AERA), the Amer-
ican  Psychological  Association (APA) and the National Council on Meas-
urements in Education (NCME)  for  scientifically  valid,  reliable  and
appropriate  test  use.  The AERA, APA and NCME are the primary national
organizations that  set  standards  for  the  psychometric  and  testing
professions and the AERA is a primary resource for examining the curric-
ular alignment of tests. The commissioner of education must therefore be
required to produce the necessary indicia of test validity, reliability,
alignment to the state learning standards and appropriateness of use for
each  assessment  to  determine graduation, promotion to grade or AYP in
accordance with requirements expressed in the scientific  literature  in
the  field of test measurement. The department of education must also be
held accountable by an independent panel of outside  experts  recognized
as  authorities  in  the field of psychometrics, pedagogy and curriculum
for the quality, validity and reliability  of  the  examinations  estab-
lished by the state board of regents.
  Therefore,  the legislature hereby deems it to be in the public inter-
est to require that the state department of education provide a  written
report  and  implement an audit process to ensure validity, reliability,
alignment to the state learning standards and appropriateness of use for
each assessment used to determine graduation, promotion to grade or AYP.
  S 2. Reporting requirements. 1. (a) Not later than September fifteenth
of each year, the commissioner of education shall submit  to  the  state
board  of regents, the temporary president of the senate and the speaker
of the assembly:
  (i) A written report  that  conclusively  demonstrates  the  validity,
reliability,  alignment  to  the state learning standards established by
the department of education (learning standards) and appropriateness  of
use  for  its intended purposes for each assessment (noting each instru-
ment and the dates of usage) used by  the  department  of  education  to
determine  a  student's eligibility for a high school diploma, promotion
to grade, or measurement of adequate yearly  progress  (AYP)  under  the
federal  No Child Left Behind Act of a school or district in the preced-
ing school year.   Demonstration of  assessment  validity,  reliability,
alignment  to learning standards and appropriateness of use must be made
in accordance with applicable  professional  assessment  guidelines  and
standards  of  the American Educational Research Association (AERA), the
American Psychological Association (APA) and  the  National  Council  on
Measurement  in  Education  (NCME)  (collectively and as may be modified
from time to time, the joint standards), including pedagogic and curric-
ular, as well as psychometric, standards.
  (ii) A technical manual for each assessment used by the department  of
education  and  used  to  determine  a  student's eligibility for a high
school diploma, promotion to grade, or measurement of AYP of a school or
district in the preceding school year. The technical manual must  comply
with  the professional requirements of the assessment industry as recog-
nized by the AERA, APA and NCME.

A. 2333                             3

  (b) The annual report and technical manual shall be made available  to
the  public  upon  submission  to  the state board of regents and to the
temporary president of the senate and the speaker of the assembly.
  2.  Failure of the commissioner of education to produce a report under
subparagraph (i) of paragraph (a) of subdivision one of this section  or
a  technical  manual  under  subparagraph (ii) of such paragraph for any
given assessment shall be deemed a failure to demonstrate the  validity,
reliability,  alignment to learning standards and appropriateness of use
of such assessment, and the results from such assessment  shall  not  be
used  to  determine  a  student's eligibility for a high school diploma,
promotion to grade, or measurement of AYP of a school or district in the
preceding school year. The commissioner of education shall substitute an
alternate measure for the decision taken on the basis  of  the  adminis-
tered  assessment.  Where  a  decision  to graduate or promote a student
cannot be based on a demonstrably  valid  standardized  assessment,  the
decision  will  be based on a combination of final grade in the relevant
academic courses and faculty recommendations in place of the results  of
such examination. Any part of an assessment not demonstrated to be valid
shall not be used for any subsequent determination.
  S  3.  Audit requirements. The state board of regents shall appoint an
independent panel of experts  on  curricular  assessments  qualified  to
determine  whether  or not an assessment meets professional standards of
the measurement industry and scholarly associations for validity,  reli-
ability, alignment to learning standards and appropriateness of use. The
panel  shall be known as the regents review board, hereafter referred to
as the board.  The board shall consist of five members. The  members  of
the  board  will  be  members of the AERA or the APA. Each member of the
board will be a recognized expert in the field of testing  psychometrics
or  curriculum evaluation and will have at least ten years experience in
evaluating validity, reliability, alignment with learning standards  and
appropriateness  of  use  of  tests  at the primary and secondary school
levels.
  1. The board shall review each assessment used by  the  department  of
education  to determine a student's eligibility for a high school diplo-
ma, promotion to grade, or measurement of AYP of a school or district to
determine whether the assessment meets the joint standards  for  assess-
ment  validity,  reliability, alignment to learning standards and appro-
priateness of use. The board  shall  also  review  the  commissioner  of
education's annual report and supporting materials concerning the valid-
ity, reliability, alignment to learning standards and appropriateness of
use of the assessments, and the technical manual of each assessment. The
board  shall  have complete access to all documents of the department of
education relating to the assessments reviewed by the  board,  including
pilot  and/or field test results for such assessments and any changes to
materials or practices relating to such  assessments  implemented  as  a
result  of  such  pilot and/or field tests. The board shall maintain the
confidentiality of all documents deemed to contain proprietary  informa-
tion.
  2.  The  board  shall determine whether or not each assessment used by
the department of education for graduation, promotion  or  determination
of AYP is valid, reliable, aligned to the learning standards, and appro-
priate for use. The board shall submit, not later than October fifteenth
of  each  year,  a  written report of its findings to the state board of
regents, the temporary president of the senate and the  speaker  of  the
assembly.  The  report  shall  be  made available to the public upon its
submission as provided in this subdivision.

A. 2333                             4

  3. If the board determines that any part of an assessment used by  the
department  of education does not meet the standards for validity, reli-
ability, alignment to learning standards or appropriateness of use under
the joint standards, such part or parts of those  assessments  shall  be
considered  invalid,  and  the results from such assessment shall not be
used to determine a student's eligibility for  a  high  school  diploma,
promotion to grade, or measurement of AYP of a school or district in any
school year. The commissioner of education shall substitute an alternate
measure  for the decision taken on the basis of the administered assess-
ment. Where a decision to graduate or promote a student is based  on  an
assessment  not  demonstrably  valid,  the  decision  will be based on a
combination of final grade in the relevant academic courses and  faculty
recommendations  in place of the results of such examination. The deter-
mination of the board shall be final as to the use of those assessments.
  4. If any part of an assessment used by the  department  of  education
has been determined by the board to fail to meet the joint standards and
related  research  for  assessment  validity,  reliability, alignment to
learning standards or appropriateness of use, the commissioner of educa-
tion shall not use such part or parts of the assessment  in  any  subse-
quent test administrations.
  S  4.  Pilot testing. 1. No later than sixty days prior to the depart-
ment of education's scheduled administration of any assessment to deter-
mine a student's eligibility for a high  school  diploma,  promotion  to
grade,  or  measurement  of AYP of a school or district in the preceding
school year, the commissioner of education shall submit  to  the  board,
the state board of regents and the temporary president of the senate and
the  speaker of the assembly the results of all pilot and/or field tests
conducted for that assessment  and  make  available  to  the  board  all
records  relating  to  such  pilot and/or field tests and results. Pilot
and/or field tests are assessments administered  by  the  department  of
education that are not being used for decisions of graduation, promotion
to  grade,  or  measurement of AYP but contain individual questions that
are to be used on assessments to determine a student's eligibility for a
high school diploma, promotion to grade,  or  measurement  of  AYP.  For
purposes  of  this  section,  results  of pilot and/or field tests shall
include, but not be limited to, analysis of answers to questions on  the
administered  pilot  and/or  field  test  based  on  percentage answered
correctly, breakdown of results according to race and gender, an  expla-
nation  of  how  the  pilot  and/or  field test was administered, and an
explanation of the learning standard a question purports to test.    The
failure  to  submit  and  identify pilot and/or field test results or to
provide access to records  as  required  under  this  subdivision  shall
preclude  the  department  of  education from using or administering the
assessment.
  2. Where the board has received from the commissioner of education the
results of the pilot and/or field test for  an  assessment  as  required
under  subdivision  one of this section, the board shall, not later than
thirty days prior to the department of  education's  scheduled  adminis-
tration  of  such  assessment, deliver to the state board of regents and
the temporary president of the senate and the speaker of the assembly  a
written  report  evaluating the pilot and/or field tests and the results
of the pilot and/or field tests provided by the department of education.
The written report of the board shall be made available to the public.
  3. In its evaluation, the board will identify any recognizable  short-
comings  of  the  pilot and/or field tests. If the board determines that
any part of the pilot and/or field tests were not conducted  in  accord-

A. 2333                             5

ance  with  the joint standards, that they fall short of needed prepara-
tion, or if it appears to the board that the assessment  for  which  the
pilot  and/or  field  tests were conducted is likely to fail to meet the
criteria  for validity, reliability, alignment to learning standards, or
appropriateness of use under the joint standards, the board shall recom-
mend to the state board of regents  that  the  department  of  education
shall  not  use  or administer the assessment for which the pilot and/or
field tests were conducted. The state board  of  regents  shall,  within
fourteen  days  of  receipt of the board's report, provide to the board,
the temporary president of the senate and the speaker  of  the  assembly
written notice of the actions proposed to be taken by the state board of
regents  with  respect  to the recommendations of the board contained in
such report.
  S 5. This act shall take effect on the ninetieth day  after  it  shall
have  become  a  law; provided, however, that effective immediately, the
addition, amendment and/or repeal of any rule  or  regulation  necessary
for  the  implementation of this act on its effective date is authorized
and directed to be made and completed on or before such effective date.