OAH Docket 3-1300-19779-1
Governor’s Tracking No. 358
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF EDUCATION
|
In the Matter of the Proposed Rules of the Department of Education Relating to Graduation-Required Assessment for Diploma, Minnesota Rules, Chapter 3501 |
REPORT OF THE ADMINISTRATIVE LAW JUDGE |
Administrative Law Judge
Kathleen D. Sheehy conducted a hearing concerning the above rules beginning at
10:00 a.m. on September 3, 2008, in Conference Center B, Minnesota Department
of Education,
The hearing and this Report are part of a
rulemaking process governed by the Minnesota Administrative Procedure Act.[1] The legislature has designed the rulemaking
process to ensure that state agencies have met all of the requirements that
The rulemaking process includes a hearing when a sufficient number of persons request that a hearing be held. The hearing is intended to allow the agency and the Administrative Law Judge reviewing the proposed rules to hear public comment regarding the impact of the proposed rules and what changes might be appropriate. The Administrative Law Judge is employed by the Office of Administrative Hearings, an agency independent of the Department of Education.
Dirk Mattson, Director of Assessments and Testing; Sage Van Voorhis, Rulemaking Coordinator; and Kathryn Olson, Rulemaking Manager, Minnesota Department of Education, appeared at the rule hearing on behalf of the Department. Thirty-three members of the public signed the hearing register, and eight members of the public spoke at the hearing.
The
Department received many written comments on the proposed rules before the
hearing. After the hearing, the record
remained open for seven days, until September 12, 2008, to allow interested
persons and the Department an opportunity to submit written comments. Following the initial comment period, the
record remained open for an additional five working days to allow interested
persons and the Department the opportunity to file a written response to the
comments submitted. The OAH hearing
record closed on September 19, 2008. All
of the comments received were read and considered.
The Department has established that it has
the statutory authority to adopt the proposed rules and that the rules are necessary and reasonable.
Based upon all the testimony, exhibits and written comments, the Administrative Law Judge makes the following:
Nature of the Proposed Rules
1.
This
rulemaking proceeding concerns the proposed rules governing the administration
and implementation of the new state high school graduation examination known as
the Graduation-Required Assessment for Diploma (GRAD).
2.
In 1996,
the Minnesota Legislature adopted legislation establishing the Basic Skills
Tests (BST) as a graduation examination in reading, mathematics and writing. Students generally took the reading and math
BST in 8th grade and the writing BST in 10th grade.[2] That law granted the Department rulemaking
authority to determine the administration and test design of the assessments.
3.
In the
2006 and 2007 legislative sessions, the state legislature revised the examination
requirements for students graduating from a
4.
Pursuant
to this legislation, Minnesota public high school students in the class of 2010
and later must score as proficient on the MCA-II assessments; if they do not,
they must re-test and pass the GRAD exams (a subset of questions on the MCAs in
reading and mathematics) in order to graduate.
Students must also continue to take and pass a test of written
composition.[3]
5.
The Department was granted rulemaking
authority to implement and administer the GRAD examination and to establish
passing requirements for students in special circumstances.[4]
6.
In this
rulemaking proceeding, the Department is proposing revisions to
7. Under Minn. Stat. § 14.14, subd. 2, and Minn. Rule 1400.2100, a determination must be made in a rulemaking proceeding as to whether the agency has established the need for and reasonableness of the proposed rule by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[7] The Department prepared a Statement of Need and Reasonableness (SONAR) in support of the proposed rules. At the hearing, the Department primarily relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed rule. The SONAR was supplemented by comments made by Department representatives at the public hearing and in written post-hearing submissions.
8.
The
question of whether a rule has been shown to be reasonable focuses on whether
it has been shown to have a rational basis, or whether it is arbitrary, based
upon the rulemaking record.
9. The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[11] An agency is entitled to make choices between possible approaches as long as the choice made is rational. Generally, it is not the proper role of the Administrative Law Judge to determine which policy alternative presents the “best” approach since this would invade the policy-making discretion of the agency. The question is rather whether the choice made by the agency is one that a rational person could have made.[12]
10. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedure was complied with, whether the rule grants undue discretion, whether the Department has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[13]
11. In this matter, the Department has proposed some revisions to the proposed rule language after the proposed rules were published in the State Register. Thus, the Administrative Law Judge must also determine if the new language is substantially different from that which was originally proposed.[14]
12. The standards to determine if new language is substantially different are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced … in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the … notice of hearing and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.”
13. Any substantive language that differs from the rule as published in the State Register has been assessed to determine whether the language is substantially different. Because some of the changes are not weighty or controversial, they are not separately set forth below. Any change that is not separately discussed below is found to be not substantially different from the rule as published in the State Register.
14. On July 30, 2007, the Department published a Request for Comments on the proposed rules. The Request for Comments was published at 32 S.R. 260.[15]
15.
By letter dated July 3, 2008, the Department
requested that the Office of Administrative Hearings schedule a hearing and
assign an Administrative Law Judge.
Along with the letter, the Department filed a proposed Dual Notice of
Intent to Adopt Rules without a Public Hearing and Notice of Hearing if 25 or
More Requests for Hearing are Received, a copy of the proposed rules, and a
draft of the Statement of Need and Reasonableness (SONAR). The Department also requested that the Office
of Administrative Hearings give prior approval of its Additional Notice Plan. Under the Plan, the Department represented
that it would mail a Notice of Hearing to a broad range of individuals and
public and private entities, including educational associations,
16. On July 7, 2008, the Department submitted a revised Dual Notice.
17. In a letter dated July 8, 2008, Administrative Law Judge Kathleen Sheehy approved the Department’s Dual Notice and Additional Notice Plan.
18. On July 18, 2008, the Department mailed a copy of the SONAR to the Legislative Reference Library as required by law,[17] and mailed copies of the Dual Notice, proposed rules, and SONAR to the chairs, chief authors, and ranking minority members of designated legislative committees.[18]
19. On July 21, 2008, a copy of the proposed rules and Dual Notice were published in the State Register at 33 S.R. 161.[19]
20. On July 18, 2008, the Department mailed the Dual Notice to all persons and associations who had registered their names with the agency for purpose of receiving such notice and to all persons identified in the Additional Notice Plan.[20]
21. On the day of the hearing the following documents were placed in the record:
·
The
Request for Comments on Possible Amendment to Rules Governing Statewide
Graduation Standards, published July 30, 2007, at 32 SR 260. (Ex. 1);
·
A copy
of the proposed rule with Revisor’s approval dated July 11, 2008 (Ex. 2);
·
A copy
of the SONAR (Ex. 3);
·
Certificate
of Mailing the SONAR to the Legislative Reference Library, with cover letter
dated July 18, 2008 (Ex. 4);
·
A copy
of the Dual Notice and Proposed Rules as published in 33 S.R. 161 (Ex. 5).
·
Certificate
of Mailing the Notice of Hearing to the Rulemaking Mailing List on July 18 2008, and Certificate of Accuracy of the
Mailing List, with mailing list (Ex.
6a);[21]
·
Certificate
of Giving Additional Notice pursuant to the Additional Notice Plan on July 18,
2008, with mailing list, and copy of letter from Administrative Law Judge
Kathleen Sheehy approving Additional Notice Plan (Ex. 6b);
·
Public
comments received before the hearing and requests for a hearing (Ex. 7);
·
Certificate
of Mailing the Dual Notice and the SONAR to Legislators on July 18, 2008 (Ex.
8).
·
Certificate
of Consulting with the Commissioner of Finance in compliance with Minn. Stat. §
14.131, and the response from the Department of Finance dated July 8, 2008 (Ex.
9);
·
Department’s
chart entitled “How the MCA-II & GRAD Work Together” (Ex. 10);
·
Written
comments received prior to and during the hearing (Exs. 11-13).
22. Written comments received after the hearing (Exs. 14-20, 22-26) and the Department’s responses (Exs. 21 and 27) were also marked and placed in the record.
23.
Minnesota
Statutes §§ 14.131 and 14.23, require that the SONAR contain a description of
the Department’s efforts to provide additional notice to persons who may be
affected by the proposed rules. The
Department submitted an additional notice plan to the Office of Administrative
Hearings, which reviewed and approved it by letter dated July 8, 2008. In addition to notifying those persons on the
Department’s rulemaking list, the Department represented that it would also
provide notice to the following groups and individuals:
24. A copy of the proposed rules and Dual Notice was also posted on the Department’s web site.[23]
25. The Administrative Law Judge finds that the Department fulfilled its additional notice requirement.
26. The Department has specific statutory authority to adopt the proposed rules. Minnesota Laws 2007, chapter 146, article 2, section 36 provides:
The commissioner of education shall adopt rules for implementing and administering the graduation-required assessment for diploma (GRAD) in reading and mathematics and in writing, consistent with Minnesota Statutes, section 120B.30, subdivision 1, and for public review of the GRAD test. The rules must specify the GRAD requirements that apply to students in unique circumstances including dual enrolled students, English language learners, foreign exchange students, home school students, open enrollment students, Minnesota postsecondary enrollment option students, shared-time students, transfer students from other states, and district-placed students and students attending school under a tuition agreement. The rules must establish the criteria for determining individualized GRAD passing scores for students with an individual education plan or a Section 504 plan and for using an alternative assessment when a student’s individual education plan team decides to replace the GRAD test.
27. The Administrative Law Judge finds that the Department of Education has the statutory authority to adopt the proposed rules.
Regulatory Analysis in the SONAR
28. The Administrative Procedure Act requires an agency adopting rules to consider seven factors in its Statement of Need and Reasonableness. The first factor requires:
(1) A description of the classes of persons who
probably will be affected by the proposed rule, including classes that will
bear the costs of the proposed rule and classes that will benefit from the
proposed rule.
The Department lists the
following as the classes of persons who will be primarily affected by the
proposed rules:
According to the Department,
(2) The
probable costs to the Agency and to any other agency of the implementation and
enforcement of the proposed rule and any anticipated effect on state revenues.
The Department does not anticipate that the proposed rule amendments will increase its costs to implement and enforce the rules. The Department states that it already has sufficient staff to provide training and support regarding the proposed rules, and that it will reallocate staff assignments and resources if necessary.[27]
(3) The determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule.
The Department states that there are no less costly or less intrusive viable alternative methods by which to bring the rules into conformity with the recent changes in the statutory requirements relating to graduation examinations.[28]
(4) A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule.
The Department states that the legislature has mandated that it adopt rules for implementing and administering the GRAD in reading, mathematics, and writing, consistent with Minnesota Statutes, section 120B.30, subdivision 1. Given this explicit rulemaking directive from the legislature, the Department does not believe that there are alternatives to the proposed rules, and it did not seriously consider alternative methods for achieving the purpose of the proposed rules.[29]
(5) The probable costs of complying with the proposed rules, including the portion of the total costs that will be borne by identifiable categories of affected parties, such as separate classes of governmental units, businesses, or individuals.
The Department maintains that the proposed rules are “cost-neutral.” According to the Department, school districts will not face increased costs associated with the rules. Instead, school districts will implement the revised rules and provide the GRAD examinations in the same manner that they have done with regard to the BST and MCAs. The Department contends that any costs created by the implementation of these proposed rules are already being borne by all entities involved. In addition, the Department states that the proposed rules do not impose restrictions or have a direct impact on the fundamental aspects of businesses or separate classes of government.
Many commenters disagreed with the Department’s assertion that the proposed rules are “cost neutral.” Dr. Thel Kocher, Director of Research and Evaluation for Edina Public Schools, stated that school districts will incur substantial costs as a result of the proposed rules. Dr. Kocher asserts that there will be increased state and local costs for remediation and retesting, particularly given the probable high number of students who will fail to meet the GRAD mathematics requirement on the first try. Dr. Kocher also notes that litigation in other states has required states and/or school districts to pay fines or costs for additional tutoring of children who fail graduation exams. For example, Dr. Kocher states that as the result of a settlement in Valenzuela v. O’Connell, the California State Assembly is required to provide students who complete grade 12 without achieving a passing score on both parts of the California High School Exit Exam (CAHSEE) with two additional years of academic assistance in the material tested on the examination, at no charge to them.[30] He suggests that similar litigation and court-ordered remedies may result here. In addition, Dr. Kocher contends that the Department has failed to use the “real data” it has obtained, based on the operational administration of the reading GRAD and the field testing of the mathematics GRAD, to provide good estimates of the potential costs of implementation.[31]
Kirk Schneidawind, Associate Director of Governmental Relations for the Minnesota School Boards Association, also submitted a written comment challenging the claim by the Department that the proposed rules are “cost-neutral.” In his comment, Mr. Schneidawind states that remediation services will be an additional cost for school districts. According to Mr. Schneidawind, school districts will be required to spend resources on implementing remediation plans that would be better used in providing direct instruction to students in the classroom.[32]
Ed Waltman, Superintendent of the Mankato Area Public Schools, similarly commented that the administration and development of system to track each student individually regarding pass/fail, remediation, and retakes will be an additional administrative burden and will necessarily result in additional costs for the school districts.[33]
In a written comment received after the hearing, Tim Wald, Principal of White Bear Lake Area High School – South Campus, disagreed with the Department’s claim that the proposed rules are cost-neutral. Mr. Wald estimates that the staffing, data analysis, and postage costs associated with retesting and providing appropriate remediation services for the GRAD examination could be as high as $60,000 annually for his school district.[34]
Similarly, the Superintendent and School Board of the Roseville Area Schools (ISD 623) maintain that the proposed GRAD rules are not cost-neutral. They point out that ISD 623 saw a four-fold increase in the number of 11th graders that will need remediation when the district transitions from the BST to the GRAD in reading, and proficiency rates on the MCA-II mathematics test suggest that the increase will be even more significant when districts transition from the BST to the GRAD in mathematics. Given the significant increase in the number of students who will need remediation and the lack of any additional funding, school districts will have to pull resources from other areas in order to provide the required services.[35]
Finally, in a written comment, Dr. Richard Spicuzza, Assistant Superintendent of Curriculum and Assessment for South Washington County Schools, states that school districts will incur additional costs as a result of the proposed rules. Dr. Spicuzza maintains that the increased level of rigor of the GRAD test in mathematics (initial findings indicate a 50-50 chance of passing the proficiency standard if a student was enrolled in Algebra II), combined with the delayed point of evaluation (tests given in 10th and 11th grade, as opposed to the BST administered in 8th grade) create a significantly different challenge and cost for school districts to remediate in a condensed period of time (less than 12 months vs. four years for the BST). According to Dr. Spicuzza, attention and resources will have to be diverted from public education and instruction to the management and administration of a year-long testing window.[36]
Dr. Spicuzza also noted that re-takes of the GRAD exam are done on the computer, a method of administration that generates additional costs in equipment and personnel time (computer technicians) that were not required for the BST. Moreover, Dr. Spicuzza states that the use of computer labs for GRAD re-testing will displace students and staff from instructional settings that were initially purchased and designed for instruction, not for state-wide testing.[37]
In its September 19, 2008, written response to the comments, the Department states that because it does not know how many students will pass the math GRAD and how many will need remediation, it cannot estimate the costs of the proposed rules. The Department states that while the proposed rules provide a mechanism for remediation, state law provides funds for that remediation. The Department cites to Minnesota Statutes § 126C.10, subd. 2a, which provides:
Extended time revenue. (a) A school district’s extended time revenue is equal to the product of $4,601 and the sum of the adjusted marginal cost pupil units of the district for each pupil in average daily membership in excess of 1.0 and less than 1.2 according to section 126C.05, subdivision 8. (b) A school district’s extended time revenue may be used for extended day programs, extended week programs, summer school, and other programming authorized under the learning year.[38]
The Department also maintains that the settlement reached in the
With respect to the claim that the proposed GRAD rules require districts to track and collect additional data on students without providing additional funding, the Department states that there are no new requirements for data tracking that were not already required for the BST. The Department maintains that everything required by the GRAD rule is currently required by the BST rule. As the BST is phased out and the GRAD is phased in, districts will continue to have ongoing tracking and record-keeping requirements.[40]
It seems clear that school districts will incur costs, perhaps substantial, in connection with the GRAD examination. But these costs flow from the legislature’s decision to make the GRAD a requirement for graduation, not from the rule proposed by the Department. The Administrative Law Judge must assume that the legislature anticipated these costs. Under these circumstances, the Department’s characterization of the potential costs as “cost neutral” does not invalidate the proposed rule. The Administrative Law Judge concludes the Department has adequately considered the costs of the rule.
(6) The probable costs or consequences of not adopting the proposed rule, including those costs borne by individual categories of affected parties, such as separate classes of governmental units, businesses, or individuals.
Because the Department is statutorily required to
adopt rules for implementing and administering the graduation exams to bring
the rules into compliance with the statutes, the Department believes that
failure to adopt the rules may result in costs to the Department associated
with potential litigation over the Department’s non-compliance. For example, a school district or the Department
could be sued if students in unique situations are not provided access to an
alternative method of satisfying the graduation exam requirement as mandated by
statute.[41]
(7) An assessment of any differences between the proposed rules and existing federal regulation and a specific analysis of the need for and reasonableness of each difference.
The
Department states that the goal of this rulemaking process is to revise
29. The Administrative Procedure Act[42] also requires an agency to describe how it has considered and implemented the legislative policy supporting performance based regulatory systems. A performance based rule is one that emphasizes superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.[43]
30. The Department states that throughout the development of the proposed rules and the SONAR, it made every effort to develop rules that will be understandable for practitioners and families, and to ensure efficient and effective administration of the graduation exams. The Department maintains that it proposed the revisions to make the rules clear in purpose and intent, flexible, and not overly prescriptive.[44]
Consultation with the Commissioner of Finance
31. Under Minn. Stat. § 14.131, the Agency is also required to “consult with the commissioner of finance to help evaluate the fiscal impact and fiscal benefits of the proposed rule on units of local government.”
32. The Department consulted with the Department of Finance, and in a response dated July 8, 2008, the Department of Finance concluded that the proposed rule “could have some fiscal impact on local units of government” but that “it is difficult at this time to estimate the degree to which costs will be incurred.”[45]
33. The Administrative Law Judge finds that the Department has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules, including consideration and implementation of the legislative policy supporting performance-based regulatory systems.
Compliance Costs to
Small Businesses and Cities
34. Under Minn. Stat. § 14.127, the Department must “determine if the cost of complying with a proposed rule in the first year after the rule takes effect will exceed $25,000 for: (1) any one business that has less than 50 full-time employees; or (2) any one statutory or home rule charter city that has less than ten full-time employees.”[46] The Department must make this determination before the close of the hearing record, and the Administrative Law Judge must review the determination and approve or disapprove it.[47]
35. The Department has determined that the cost of complying with the proposed rule in the first year after it takes effect will not exceed $25,000 for any one small business or small city.[48]
36. The Administrative Law Judge finds that the agency has made the determination required by Minn. Stat. § 14.127 and approves that determination.
General
37. This report is limited to discussion of the portions of the proposed rules that received significant comment or otherwise need to be examined. When rules are adequately supported by the SONAR or the Department’s oral or written comments, a detailed discussion of the proposed rules is unnecessary. The agency has demonstrated the need for and reasonableness of all rule provisions not specifically discussed in this report by an affirmative presentation of facts. All provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.
3501.1020 Scope
38. This provision restates the statutory
requirement that passage of the GRAD examination is required for a high school
diploma in
39. In
its SONAR, the Department states that the provision is needed to specify which
students are governed by the proposed rules.
The Department also discussed the need to provide adequate notice of the
new examination requirements to students.
The Department cites to Debra P.
v. Turlington[49]
as the seminal case for assessing high-stakes examinations. According to the Department, the court in that
case prevented the state from imposing new criteria in an examination for high
school graduation without adequate notice and sufficient educational opportunities
to prepare for such examinations. The
court held that at least four to six years of preparation time is required in
order for children to adequately prepare for a high stakes examination.[50]
40. The
Department maintains that this provision in the proposed rules is reasonable
and consistent with the holding in Debra
P. v. Turlington because it provides four year’s notice from the time that
the statute was passed by the Legislature to the 2005-2006 eighth grade
students who must complete these requirements in order to graduate in 2010.[51]
41. Several
people submitting comments questioned whether there has been sufficient notice
of the GRAD test for the graduating class of 2010.
42. In a written comment, Dr. Richard Spicuzza
states that the four to six years notice that was found to be appropriate in
the Debra P. v. Turlington case was for
minimal competency tests – not for high stakes tests like the GRAD test. Moreover, Dr. Spicuzza asserts that the
notice is required to be provided in such a manner as to allow school districts
the opportunity to organize their structures, course sequences, and instruction
to be able to provide fair exposure to the testing curricula so that students
have a fair chance to meet the new requirement.
Dr. Spicuzza argues that with these proposed rules, the Department has
failed to provide adequate notice. He
further points out that the Department has yet to release the level of required
competence necessary for an individual to be deemed “proficient” on the GRAD mathematics
examination. In addition, current
Department timelines indicate that the “standard setting” will not take place
until after the spring 2009 administration of the MCA-II and GRAD. Thus, the graduating class of 2010 will have
less that 12 months’ notice of the definitive threshold required to be met in
order to graduate from a
43. In another written comment, Dr. Kocher
questions whether the shift to administering the GRAD exams in the spring of the
10th and 11th grades provides the students in the classes
of 2010 and 2011 with sufficient notice.
Dr. Kocher notes that with the BST, which was first given in the 8th
grade, students have their entire high school career to make up ground in reading
and mathematics and have multiple opportunities to re-take the examination. In particular, given the difficulty of the 11th
grade GRAD in mathematics, Dr. Kocher is concerned that it will be extremely
difficult to sufficiently support students in their 12th grade year
to keep them on track for graduation.[53]
44. In its September 12th written
response, the Department states that sufficient notice of the exams has been
given to the class of 2010. The
Department maintains that the class of 2010 has had statutory notice of the
MCA-II requirements since 2005, and the GRAD, which is a subset of the MCA-II,
since 2007.[54]
45. The
Administrative Law Judge concludes that the comments concerning the adequacy of
notice are really directed at the statute, which specifies that students who
are in the 8th grade in the 2005-06 school year and later must
obtain a proficient or passing score on the reading examination in grade 10 and
the mathematics examination in grade 11.
Whether or not this is sufficient notice to comply with constitutional
requirements, this is the statutory requirement. The Department would not have the authority
to implement a rule delaying the examinations to allow for additional
notice. The Department has demonstrated
that this rule provision is needed and reasonable.
3501.1030 Definitions
46. This
section defines the terms used in parts 3501.1000 to 3501.1190.
47. In a written comment, Jacki McCormack,
Senior Advocate for Arc Greater Twin Cities, stated that the terms
“accommodation” and “modification” should be defined more clearly and in
greater detail.[55]
48. Other
commenters expressed concern that the full range of accommodations currently
available to students re-taking the BST will not be available to students who
need to retest on the GRAD.[56] While these persons acknowledge that the
computer-administered GRAD retests will have some accommodations built in, such
as full audio on the mathematics GRAD, they believe that a paper and pencil
accommodation will not be available except for students requiring a large print
version.[57]
49. In its written response, the Department
stated that the definitions are modeled after the current definitions in
Minnesota Rule for the BST.[58] The only difference between the proposed
definition of “accommodation” and the existing definition is that the existing definition
has a final sentence that states: “Among
accommodations is providing a student with the same test in a large print
version.” “Accommodation” is defined in
both the existing and proposed rule to mean:
an adjustment in a
testing condition, such as the setting for or scheduling of the test, or a
change in the method of administering a test.
An accommodation does not compromise the security or the confidentiality
of the test, does not alter the meaning of the score, or render the student’s
score incomparable to the scores of those students who took the test under
standard conditions.
50. Likewise, the word “modification” is
defined in both the existing and proposed rule to mean “an adjustment of a test
that results in changing the standard for a particular student.” The only difference is that the existing rule
has an additional final sentence that states: “Among adjustments are: a
modification of only part of the test, a change in test questions, and a change
in the performance standard.”
51. For both definitions, the Department has
chosen to delete the final sentence providing an example of the term. The deletion of these examples does not make
the definitions unclear. The
Administrative Law Judge concludes that the proposed definitions are needed and
reasonable.
52. In another written comment, the Department was
asked to consider “test blueprints” in determining whether tests taken by
students in other states are equivalent to the GRAD, because other states use
“blueprints” instead of “specifications.”[59]
53. In response to this comment, the Department
has proposed broadening the definition of “test specifications” as follows:
Subp. 13.
Test specifications design. “Test specifications design” means
statements of the requirements that tests must include and how tests are
designed. The specifications These
design documents define the required content, format, level of difficulty,
types of items, and length of the tests.[60]
54. No person objected to this change. The Administrative Law Judge finds the
modification to be a technical change that does not make the rule substantially
different from the rule as proposed. The
Department has shown that the proposed rule is needed and reasonable.
3501.1040 GRAD
Requirements
55. This
subpart provides that to qualify for a high school diploma, a student must
demonstrate competency in the statewide standards for reading, mathematics, and
writing by fulfilling the graduation test requirement established by Minnesota
Statutes §§ 120B.02 and 120B.30.
56. In
its SONAR, the Department states that the provisions of this section are
required by
57. In
a written comment, Dr. Thel Kocher states that the GRAD requirements should
include an appeal process and that the Department should provide support to
economically disadvantaged students in preparing their appeals. Dr. Kocher further suggested that the
Department include an alternative option for students to satisfy the examination
requirement, such as the PLAN or ACT assessments.[62]
58. Superintendent
Ed Waltman also commented that the rule should include an appeal process given
that the current proficiency results indicate that as many as 40 to 50 percent
of students in the state will not pass the exams.[63]
59. Other commenters, including Tim Wald, also
urged the Department to add an appeal process.
Mr. Wald noted that the BST rules allowed for an appeal process within
each district.[64]
60. In its September 12th written
response, the Department states that, while state law contemplates that some
students will fail the GRAD,[65]
there is no provision in the statute for an appeal of any required graduation
examinations. The Department asserts
that it does not have rulemaking authority to override or contradict the
legislative intent by promulgating a rule containing an appeal provision.[66] Likewise, with respect to the suggestion that
the Department include an alternative option for students, such as an
acceptable ACT result, the Department states that it was not granted rulemaking
authority to adopt a rule that offers alternative options.[67]
61. The Department has authority to make rules
“implementing and administering” the GRAD examination consistently with Minn.
Stat. § 120B.30.[68] This authority might arguably extend to
adoption of an appeal provision concerning testing opportunities or other
accommodations, similar to the existing rule.[69]
But nothing in the statute would require
such a provision, and it is clear the Department has made the policy decision
to decline this process. Furthermore,
the statute explicitly requires that “only the following options” shall fulfill
graduation test requirements: a
proficient score on the reading and mathematics MCAs or a passing score on the
GRAD.[70] The Administrative
Law Judge finds the proposed rule to be needed and reasonable, and agrees with
the Department that it lacks the statutory authority to provide by rule for an
alternative examination.
3501.1050 Testing
for Statewide GRAD Standards
62. This provision requires school districts to
test for proficiency in statewide graduation standards by using the GRAD. It also prohibits districts from offering the
GRAD before the grade level defined in Minnesota Statutes. Minn. Stat. § 120B.30 requires that students
obtain a proficient score on the MCA in grade 10 for reading and grade 11 for
mathematics or achieve a passing score on the GRAD in grade 10 for reading and
grade 11 for mathematics or subsequent retests.
63. In its SONAR, the Department states that it
is reasonable to begin testing at 10th and 11th grade
because it provides a minimum of five testing opportunities for a student to
pass the tests before graduation. The
Department maintains that testing in 10th and 11th grade
also allows sufficient time for remediation before graduation for those
students who do not pass.[71] The Department currently plans to offer a testing window once each
month, and students will be allowed to participate every other month.[72]
64. Many people submitted comments expressing
concern that giving the tests in 10th and 11th grade will
provide students with too few opportunities for remediation.[73] Some suggested that both the reading and mathematics
assessments be given no later than the 10th grade to allow for more
tutoring and re-testing opportunities.[74] Matthew Mohs, Director of Funded Programs for
the Saint Paul Public Schools, noted that this year’s 11th graders
will probably not get their individual student results until the fall of 2009,
leaving them with less than nine months to make up gaps in learning, re-take
the exam, and meet the requirements.[75]
65. In a similar comment, Superintendent Ed
Waltman expressed concern that the administration of the GRAD test of reading in
the spring of students’ 10th grade, and the GRAD test of mathematics
in the spring of students’ 11th grade, leaves insufficient time for
remediation. Under the BSTs, students
who did not pass had their entire high school career to make up ground in reading
or mathematics and multiple re-test opportunities. Under the proposed rules, students have much
less time to close the gap between performance and minimum expectation.[76]
66. Dr. Richard Spicuzza, noted that
evaluations of the MCA-II/GRAD mathematics test indicate only a 50 percent
chance of passing the proficiency standard if a student is enrolled in Algebra
II. Given this level of rigor, Dr. Spicuzza
questions whether students can be remediated in less than one year. Dr.
Spicuzza recommends that the Department establish a hold-harmless period until
it is able to provide reasonable advance notice of the level of required
competence necessary for a student to be deemed proficient on the GRAD mathematics
examination. [77]
67. A number of persons also submitted written
comments expressing concern that the GRAD requirement infringes on local school
district authority to determine whether a student graduates. These persons questioned how a district can
require a student to undergo remediation and retesting if the student passes
advanced math courses but fails the GRAD.[78] Kirk Schneidawind, for example, stated in his
written comment that the proposed rules permit the state and federal government
to determine whether a student earns a diploma from the local school district
based on 10 to 20 questions on three different assessments. According to Mr. Schneidawind, local school
boards and district administrators should have discretion in this matter.[79]
67. With respect to the comments that the
graduation exams should be given no later than the 10th grade and
preferably earlier, the Department explains in its written response that the
statute specifically requires that the mathematics test be administered in the
11th grade and the reading in the 10th grade.[80] The proposed rules cannot alter what state
law currently requires.[81]
68. In response to concerns that there is
inadequate time for remediation because the reading and mathematics GRAD tests
are given in the 10th and 11th grade, the Department
states that while there may be fewer years to remediate, there are now several
more years for students to learn and master the material before they are tested.[82]
69. In response to the concerns that the state
is intruding on local school board authority or control, the Department states
in its written response that state law requires Minnesota public school
students enrolled in grade 8 before the 2005-06 school year to pass the basic
skills test, and those enrolled in the 2005-06 school year and later to pass
MCA-IIs or the GRAD test. However, the
Department points out that while state law also requires public school students
to satisfactorily complete the course credit requirements found in Minn. Stat.
§ 120B.024, it does not mandate a particular curriculum for any district. So in that sense, school districts do retain
discretion regarding graduation requirements for their students.[83]
70. The Administrative Law Judge finds the proposed rule to be needed and
reasonable and in compliance with the governing statute.
3501.1110 Opportunities
to Learn and Remediation
71. This
subpart requires school districts to provide opportunities for all students to
learn the GRAD requirements and subject matter, and to develop a plan for
remediation for a student who, after two retest opportunities, has not passed a
specific GRAD.
72. In
its SONAR, the Department states that this subpart requires school districts to
focus on individual student achievement of the GRAD requirements. The Department notes that local school
districts in 13 other states that require high-stakes minimum competency
testing offer individual academic plans to learn the content covered by the
test.[84] With respect to the GRAD mathematics examination,
the Department asserts that teaching materials are readily available because
the content consists of easily recognized parts of published mathematics
textbooks that are used widely across the state. In addition, methods of teaching and
different strategies are included in the Principles and Standards for School
Mathematics published by the National Council of Teachers of Mathematics, as
well as numerous other sources. As for
the reading exam, the objectives encompass only reading comprehension, without
delineation of the particular strategies or methods used to teach students, and
the writing exam requires only essential composition skills commonly taught in
district curricula.[85]
73. Several people commented that the
requirement to develop a remediation plan is too vague. They recommended that the Department provide
more detail to clarify what standards and services it expects school districts
to include in an acceptable remediation plan.[86]
74. Jacki McCormack questioned whether the
remediation plan would be a separate document targeted to each individual
student or something that would apply to all students who failed the GRAD after
two retests.[87]
75. In
its written response, the Department states that this section was modeled on
the remediation requirement in the BST rule.
The Department declines to make additional, more specific requirements
of school districts because it believes the districts are in the best position
to determine how to meet an individual student’s needs when that student has
not achieved the necessary learning objectives.[88] The Department states that while school
districts must provide a remediation plan, individualized instruction is not
required to be part of that plan.[89]
76. The
Administrative Law Judge concludes the proposed rule is not unreasonably vague. It provides sufficient notice that a
remediation plan must be developed for students who have not passed an
examination after two retest opportunities.
The Department has established that the proposed rule is needed and
reasonable.
3501.1120 Required
Notification to Parents and Students
77. This
provision requires school districts to provide parents and students written
notice of graduation requirements and the grade in which the student will have
the first opportunity to take a GRAD.
Under subpart 3, the school district must provide written notice of GRAD
results to parents and students no later than 60 days after a student takes a
GRAD. After the date of receiving the
test results, students must have a minimum of six weeks for remediation before
the next testing opportunity.
78. Several
people submitted written comments critical of the requirement that school
districts notify parents and students of test results within 60 days of the test
date, without a corresponding deadline for the Department to provide the test
results to the districts.[90]
79. For
example, in a written comment, Dr. Kocher objects to the burden being placed on
school districts to provide notice of GRAD results no later than 60 days after
a student takes the test. Dr. Kocher
states that, without knowing the timelines under which the Department is
working, the 60 day written notice should be linked to when the school district
receives the Individual Student Reports rather than from when the student takes
the test. Dr. Kocher further recommends
that the Department develop a plan to ensure that reports of alignment studies
and technical manuals, including reliability, validity and fairness for each
form of the GRAD be published and readily available to the public before the
test results are returned to the school districts, so that the districts may
report and interpret the test results fairly.[91]
80. In
a written comment, the Minnesota School Boards Association (MSBA) questioned
the need for six weeks of remediation between retesting opportunities. The MSBA believes that the amount of
remediation time between tests should be left up to local school administrators,
parents, and students.[92]
81. In
response to these comments, the Department has proposed the following
modification to subpart 3 of Part 3501.1120:
Subp. 3. Notice of test results and remediation
opportunities. The district must provide
written notice to parents and the student of GRAD results no later than 60 days
after a student takes a GRAD the district receives the results of a
GRAD. After the date of receiving
test results, students must have a minimum of six weeks for remediation before
the next testing opportunity.[93]
82. In its September 12, 2008, written
response, the Department explained that it offers GRAD retest opportunities
during the first week of every month.
The Department believes that six weeks is a reasonable interval for a remediation
plan to be implemented and for students to obtain relevant instruction before
the next re-test opportunity.[94]
83. The Department believes that a six-week
interval will enhance the implementation of remediation plans. The Department is entitled to choose among
policy alternatives as long as the choice made is rational. The length of the interval between testing
opportunities is a policy decision the Department has legitimate discretion to
make, and there is a rational basis for this choice.
84. The
Administrative Law Judge finds the rule is needed and reasonable, and the
proposed modification does not make the rule substantially different from the
rule as published. The change reasonably
addresses the legitimate concerns raised by those commenting.
3501.1130 Student
Record Keeping
85. This
provision requires the school districts to keep a record for each student that
includes the GRAD test dates and results.
86. In
its SONAR, the Department explains that this information will provide evidence
of each test taken and will assist the school districts in evaluating each
student’s situation. The Department will
keep the official record of the student’s passing status, and the district will
be responsible for keeping documentation of this official record in the
student’s data record.[95]
87. In a written comment, Ed Waltman stated
that this provision will add a significant administrative burden on school
districts to track each student individually with respect to pass/fail,
remediation and retakes without funding to cover the cost.[96] Other commenters also expressed concern that
the proposed rules create a new unfunded mandate for school districts to track
students’ performance on the GRAD, remediation, and retakes for State audits.[97]
88. Under subpart 2, individual student
progress is required to be reported on a student record as “pass-state level”
or “PS” for students who pass a GRAD under standard conditions, and
“Pass-individual level” or “PI” for students who pass a GRAD with a
modification established in an IEP or section 504 accommodation plan in
accordance with part 3501.1190.
89. In
a written comment, Daniel Stewart, Supervising Attorney for the
90. In
response to these comments, the Department has proposed the following
modification to subpart 2 of Part 3501.1130:
Subp. 2. Student progress. Individual student progress must be reported
on a student record as described in items A and B this part.
A.
“Pass state level” or “PS” “Pass”
or “P” must be noted on the record of a student who passes a GRAD under
standard conditions or with an accommodation.
The records for students passing with an accommodation must not
differ from the records of students passing the test under standard conditions.
B.
“Pass individual level” or
must also be noted on the record of a student who passes a GRAD with a
modification established in the IEP or section 504 accommodation plan in accordance
with part 3501.1190. This notation is
also used as a GRAD notation for any other modified or alternate assessment
used for accountability purposes for students with disabilities. The records for students passing with an
accommodation or a modification or who pass an alternate assessment must not
differ from the records of students passing the test under standard conditions.[99]
91. The comments concerning the cost of
compliance with the rule were addressed above in the regulatory analysis. The fact that a rule may impose costs on
school districts that are not expressly funded by the legislature does not
invalidate the rule. The Administrative
Law Judge finds the proposed rule is needed and reasonable, and the
modification does not make the rule substantially different from the rule as
published. The change reasonably
addresses the legitimate concerns raised by those commenting.
3501.1160 Required
Documentation for Program Audit
92. This
provision requires school districts to maintain records necessary for program
audits conducted by the Department, including remediation plans for students,
the district’s curriculum and instruction, notifications to parents and
students, student records, the GRAD administration plan, test security
procedures, the district’s process for testing considerations for LEP students,
documentation for students granted testing accommodations, and the assessments
and performance documentation for students granted modifications.
93. In its SONAR, the Department states that local
school districts are currently audited annually for compliance with state laws,
and periodically for compliance with federal programs. School districts submit an annual report
consisting of their curriculum review, testing results, and plans for improvement,
both to their local communities and to the Department. These reports provide data to the state and
allow authorities to know that the schools have been complying with report
legislation.
According to the
Department, the proposed rules provide assurance that assessment is being done
consistently and effectively by providing accountable, results-oriented
policies and procedures. Critical to the
audits is the requirement that schools keep all necessary records for state
review. The Department maintains that
this is reasonably accomplished through an audit of local programs by the
state. The requirement of documentation
for these program audits provides assurance of consistent implementation of the
standards throughout the state.[100]
94. In a written comment, Ed Waltman stated
that this proposed section provides the Department with a great deal of
authority to review district and school records without clear standards for
each of the items to be maintained. Mr.
Waltman expressed concern that the scope of any audit and the required
documentation is within the discretion of the Department. Mr. Waltman also stated that this provision
along with the student recordkeeping provisions of Part 3501.1130 will add a
significant administrative burden on school districts without additional
funding. According to Mr. Waltman,
school districts will be required to develop and administer a system to track
each student individually regarding the tests taken, pass/fail, remediation,
and retakes.[101]
95. Other commenters expressed concern that
this provision gives the Department too much discretion to review school
district records without clear standards for each of the items to be
maintained.[102]
96. In its written response, the Department
stated that the requirement for documentation in the proposed rules is
identical to that in the current BST rule (Minnesota Rule 3501.0170). According to the Department, nothing is
required beyond what already exists in law.[103]
97. The Administrative Law Judge concludes the
proposed rule is not unreasonably vague and does not give the Department
excessive discretion to determine which records are necessary. The rule lists the specific types of
documents that must be maintained. The
Department has established that the proposed rule is needed and
reasonable.
3501.1170 Passing
Scores for GRAD
98. This
provision echoes the statutory requirement that passing scores for the GRAD
will be determined through a “standard setting process.” Standard setting is a method of determining
cut scores that correspond to performance levels. The Department has decided to set the
standard for cut scores only after a real administration of a test. According to the Department, the standard
setting process is usually implemented by a committee of educators who set
scores only after discussing content standards, performance levels, the test,
and expectations for students.[104]
99.
In a written comment, Bernadeia Johnson, Deputy Superintendent of the
Minneapolis Public Schools, noted that if the mathematics GRAD cut score is set
comparably to the most recent reading GRAD cut score, 78 percent of the
students entering 12th grade in the Minneapolis Public Schools will
not have passed the mathematics GRAD. Ms. Johnson further noted that the proficiency
cut score on the grade 11 MCA-II mathematics examination equates to the
national percentile rank of 79 on the ACT-PLAN.
In other words, for a
100. In
a written comment, Michael Mohs expressed concern that the increased rigor of
the examination and reduced remediation time will have a disproportionate
impact on particular student groups. Mr.
Mohs points out that while 82 percent of white students passed the reading
GRAD, only 41 percent of African American students and 48 percent of Latino
students passed on the first administration.
Given the significant difficulty of the 11th grade mathematics
examination, Mr. Mohs believes it is not unrealistic to predict the proficiency
rates will be lower in mathematics than for reading.[106]
101. Some
commenters stated that setting the standard for cut scores only after the
initial administration of the mathematics test in the spring of 2009 is not
timely, particularly for the class of 2010.[107] Other commenters were concerned that because
the MCA-II proficiency rates and GRAD pass levels were identical for the
reading test, this suggests that similar results will occur with respect to the
mathematics test and that too many students will fail.[108] Still others felt that the cut scores for the
reading GRAD were set unrealistically high, resulting in a 75% passing rate for
the state and a 52% passing rate for Minneapolis.[109]
102. Some
commenters expressed concern that there has not been enough time to adapt to
the new testing standards for graduation.
These commenters noted that when the BST was first implemented, the
passing cut scores were set lower to allow time for students and districts to
adapt to the new standards. These
commenters suggested that the Department adopt an implementation plan that
holds students harmless by gradually increasing the cut scores for passage over
a number of years.[110]
103. In
its written response, the Department stated that standard setting after the
administration of a real test (as opposed to a mock exam) using actual
performance data is common practice in large scale testing and is recommended
by Minnesota’s National Technical Advisory Committee.[111]
104. In
a written reply to the Department, Dr. Kocher stated that judgmental standard
setting methods, like the Angoff, could be used immediately to set the passing
score for the mathematics GRAD rather than waiting for the initial operational
administration of the GRAD.[112] Likewise, Dr. Richard Spicuzza stated that
there are other equally defensible standard setting methodologies that the
Department could have selected. By
waiting until after the spring of 2009 to set the standard for the mathematics
GRAD, the Department is giving the class of 2010 less than 12 months’ notice of
the definitive threshold required to be met in order to graduate.[113]
105. In its September 19, 2008, final response,
the Department acknowledged Dr. Kocher’s comments but stated that the choice of
standard setting is within the administrative purview of the Department. No specific method is required by
statute. The decision to set the GRAD
math test cut scores only after an actual administration of the test has
occurred was made on the advice of
106. Another commenter questioned whether GRAD
test scores should be normed against the population’s performance on the test
as a whole, similar to the manner in which ACT and SAT tests are normed.[115]
107. In
its written response, the Department explained that the GRAD is a criterion-based
assessment, in which the performance expectation for a student’s passing score
is based on set criteria and is not altered by the performance of other
students.[116] The Department adds, however, that the passing
score is determined by standard setting, which is a combination of content
expectations and student performance on the assessment. So in that respect, students’ performance is
taken into consideration. According to
the Department, the passing score represents a balance of sufficient demonstrated
knowledge of content and an appropriate percentage of student passing rates to
reflect a realistic expectation.[117]
108.
The Administrative Law Judge finds the reference to the standard-setting
process in the proposed rule is consistent with the statute. The Department is not required to set the
passing scores through the rulemaking process; the rule merely reflects the
Department’s intention to use a standard-setting process described in the
statute.
109.
The Department has demonstrated that the proposed rule is needed and
reasonable.
3501.1180 Students
in Unique Situations
110. This
provision governs the graduation requirements for “students in unique
situations:” dual enrolled students, English language learners, foreign
exchange students, home-schooled students, open enrollment students,
postsecondary enrollment students, shared-time students, transfer students,
district-placed students and students attending school under a tuition
agreement, and correctional facility students.
In general, public school students must pass the GRAD in order to earn a
diploma, and those with limited English proficiency are granted more time to
learn English before being required to pass the GRAD.[118]
111. In
its SONAR, the Department states that this rule part is necessary because the
authorizing legislation requires the Department to adopt rules that address the
graduation requirements for students in these unique situations.[119]
112. Several commenters stated that the four-year
exemption for English Language Learners (ELL) is not enough for those students
to become sufficiently proficient in English so as to remove language as a
significant obstacle to learning.[120] Most recommended a five to seven year
exemption.[121] Ed Waltman pointed out that ELL performance on
assessments is much lower than their non-ELL peers statewide. For example, only 28 percent of the state ELL
population passed the recent reading GRAD compared to 78 percent of the non-ELL
population. And in the MCA-II mathematics
test, only 3.32 percent of ELL high school juniors statewide scored proficient
compared to 35.12 percent of the non-ELL population.[122]
113. Another
commenter questioned whether the Department intended to exempt all ELL students
from the GRAD since most
114. In
its written response, the Department stated that the exemption for ELL students
under the BST rules is three years. The
proposed GRAD rule expands the time to four years.
115. In
response to the above comments, the Department has proposed the following
amendment:
Subp. 2.
English language learners (ELL).
English language learners (ELL) who are public school students and are
designated in the Minnesota Automated Reporting Student System (MARSS) as
Limited English Proficiency (LEP) are not required to pass the GRAD for up to
four years from their date of enrollment in any school in which the primary
language of instruction is English. An
ELL student who enrolls in grade 9 or above at or after the start of the
academic year in any Minnesota school and who completes if
they complete the course work and any other state and district requirements
to graduate within a four-year period is not required to pass the GRAD.[123]
116. The Administrative Law Judge finds the rule
is needed and reasonable and the proposed modification does not make the rule
substantially different from the rule as published. The change reasonably addresses the
legitimate concerns raised by those commenting.
117. Many people who submitted comments also objected
to the requirement in subpart 8 of this provision that local school districts
obtain a copy of the test specifications for transfer students and requested
that the Department assume this responsibility.[124]
118. In response to these comments, the
Department proposed the following amendment to the proposed rules:
Subp. 8.
Transfer students who passed a graduation exam in another state. A district may submit a passing score report
for a transfer student and a copy of the test specifications to the
department will request test specifications from the other state for review. As graduation exams from other states are submitted
received, the department will maintain a list of states with acceptable
substitute graduation exams. The
department will seek reciprocity for the GRAD in other states when it accepts
their assessments.[125]
119. The
Administrative Law Judge finds the proposed rule is needed and reasonable and
the modification does not make the rule substantially different from the rule
as published. The change reasonably
addresses the legitimate concerns raised by those commenting. The Administrative Law Judge suggests,
however, that the reference to requesting “test specifications” be changed to
“test design” documents, to be consistent with the change made in the
definitions section above at Part 3501.1030, subp. 13. This change would be needed and reasonable
and would not make the rule substantially different from the rule as published.
3501.1190
Students with Individualized Education Program Plans or Section 504
Accommodation Plans
120.
Under the proposed rule, IEP and Section 504 teams must identify for
each subject area of the GRAD whether a student with a disability is expected
to achieve the statewide standard with or without accommodations or whether the
student is expected to achieve the statewide standard at an individually
modified level of difficulty. In
addition, modifications must be made at the time transition goals and
objectives are adopted (under Minnesota law, at age 14 or grade 9); and
accommodations to standard testing conditions must be made through the IEP or
Section 504 team process and must be identified in the plan documents.[126]
121. In
a written comment, Daniel Stewart objected to the “Pass-individual” or “PI”
notation on a student record. In
addition to his earlier concern that the PI notation may violated Section 504
by revealing a student’s status as a person with a disability, Mr. Stewart
expressed concern that the proposed rule does not indicate any standards or
conditions that the IEP team or Section 504 team may use in its determination
of whether a student should proceed under the PI standard. Without standards for guidance, Mr. Stewart
believes students with disabilities may be placed on the PI standard for
improper reasons.[127]
122. In
response to these comments, the Department has proposed the following
modification to subpart 1 of Part 3501.1190:
Subpart 1.
Considerations for students with IEPs or section 504 accommodation plans. The individualized education program or
section 504 accommodation plan for a student with a disability must identify
one of the following decisions for each subject area of the GRAD:
A.
the student is expected to achieve the statewide
standard with or without testing accommodations, resulting in a PS Pass
or P notation on the record when achieving a passing score; or
B.
the student is expected to achieve the statewide
standard at an individually modified level of difficulty, resulting in a PI
Pass or P notation on the record when achieving the modified level. A
123. The Administrative Law Judge finds the
proposed modification does not make the rule substantially different from the
rule as published. Nor is the proposed
rule unreasonably vague because it provides inadequate guidance to IEP or
Section 504 teams as to when a modification to the level of difficulty should
be made. IEP and Section 504 teams are
required to make those decisions on an individualized basis, with reference to
the student’s educational needs. The
Department cannot make these decisions by rule.
124. After reading and considering all of the comments in the record, the Administrative Law Judge concludes that most of the comments express legitimate concerns and valid policy criticisms of the GRAD requirement contained in Minn. Stat. § 120B.30, the reasonableness of which is not at issue in this proceeding. The Department has shown that there is a need for the proposed rules implementing these statutory requirements and that the proposed rules are rationally related to the end sought to be achieved.
Based upon the foregoing
Findings of Fact, the Administrative Law Judge makes the following:
1. The Department gave proper notice of the hearing in this matter.
2. The
Department has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural
requirements of law or rule.
3. The Department has demonstrated its statutory authority to adopt the proposed rule and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1, 14.15, subd. 3, and 14.50 (i) and (ii).
4. The Department has documented the need for and reasonableness of its proposed rule with an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 2, and 14.50 (iii).
5. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.
Based upon the foregoing
Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED that the proposed rule be adopted.
Dated:
October 20, 2008.
|
s/Kathleen
D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
NOTICE
The Department must make this Report available for review by anyone who wishes to review it for at least five working days before it may take any further action to adopt final rules or to modify or withdraw the proposed rules. If the Department makes changes in the rules, it must submit the rules, along with the complete hearing record, to the Chief Administrative Law Judge for a review of those changes before it may adopt the rules in final form.
After adopting the final version of the rules, the Department must submit this version to the Revisor of Statutes for a review as to its form. If the Revisor of Statutes approves the form of the rules, the Revisor will submit certified copies to the Administrative Law Judge, who will then review the same and file them with the Secretary of State. When the final rules are filed with the Secretary of State, the Administrative Law Judge will notify the Department, and the Department will notify those persons who requested to be informed of their filing.
[1]
[2]
[3] Minn. Stat. § 120B.30, subd. 1(b). See also Ex. 10.
[4]
2007
[5] SONAR at 1.
[6] SONAR at 1.
[7] Mammenga v. Department of Human Services,
442 N.W.2d 786 (
[8] In
re Hanson, 275 N.W.2d 790 (
[9] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[10] Mammenga, 442 N.W.2d at 789-90; Broen Memorial Home v. Department of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).
[11] Manufactured Housing Institute, 347 N.W.2d at 244.
[12] Federal Security Administrator v. Quaker
Oats Co., 318
[13]
[14] Minn. Stat. § 14.15, subd. 3 (2006).
[15] Ex. 1.
[16] SONAR at 5.
[17] Ex. 4.
[18]
The Department sent materials to leadership of the Senate Education Committee,
Senate E-12 Education Budget Division Committee, House E-12 Education Committee,
and House K-12 Finance Division. See Ex. 8 and
[19] Ex. 5.
[20] Exs. 6a and 6b.
[21] The exhibit is incorrectly titled “Certificate of Giving Additional Notice Pursuant to the Additional Notice Plan.”
[22] Ex. 6; SONAR at 5-6.
[23] Ex. 6; SONAR at 6.
[24] SONAR at 3.
[25]
[26]
[27] SONAR at 3.
[28] SONAR at 3.
[29] SONAR at 4.
[30] Exs. 12 and 24 with attachments.
[31] Ex. 24.
[32] Ex. 14.
[33] Ex. 16.
[34] Ex. 22.
[35] Ex. 23.
[36] Ex. 26.
[37] Ex. 26.
[38] Ex. 27 at 3.
[39] Ex. 21 at 2.
[40] Ex. 21 at 2.
[41] SONAR at 4.
[42]
[43]
[44] SONAR at 5.
[45] SONAR at 5; see also Ex. 9.
[46]
[47]
[48] SONAR at 9.
[49] 730 F.2d 1405 (11th Cir. 1984).
[50] SONAR at 7.
[51]
[52] Ex. 11.
[53] Ex. 12.
[54] Ex. 21 at 6.
[55] Ex. 7 at 109-110.
[56] Ex. 7 at 125, 148, 152; Exs. 12, 20 and 22.
[57]
[58] Ex. 21 at 6.
[59] Transcript at 37.
[60] Ex. 21 at 7.
[61] SONAR at 10.
[62] Ex. 12. See also Exs. 20 and 22 (supporting the addition of an appeal process and use of the ACT assessment instead of the GRAD).
[63] Ex. 16. See also Exs. 19 and 20.
[64] Ex. 22. See also Ex. 7 at 1, 2, 3, 5-23, 26, 28-32, 34-39, 41-49, 51-54, 56-58, 60-69, 71, 73-77, 79, 81-84, 88, 90, 94-96, 98-100, 119, 122, and 126.
[65] See Minn. Stat. § 120B.31, subd. 3(a)(4).
[66] Ex. 21 at 3.
[67] Ex. 21 at 10.
[68]
2007
[69] See
[70]
[71] SONAR at 11.
[72] Ex. 7 at 103.
[73] See Ex. 7 pp. 1-31, 34-49, 51-58, 60-71, 73-79, 81-84, 90, 94-96, 98, 100, 117, 119, 132, and 134; Exs. 12, 14, 15, 16, 13, 22, 25 and 26.
[74] Ex. 14 (Minnesota School Boards Association’s comment.)
[75] Ex. 25.
[76] Ex. 16.
[77] Ex. 11.
[78] Ex. 7 at 1-84, 90, 94-96, 98, 100; Ex. 14.
[79] Ex. 14.
[80] See
[81] Ex. 21 at 3.
[82] Ex. 21 at 7.
[83] Ex. 21 at 2.
[84] SONAR at 11-12.
[85] SONAR at 12.
[86] Ex. 7 at 101, 109, 114, and 120.
[87] Ex. 7 at 109.
[88] Ex. 21 at 7.
[89] SONAR at 12.
[90] Ex. 7 at 61, 99, 101, 114, 120, 129, 139, 146, 150, 153, and 156; Exs. 12, 15, and 16.
[91] Ex. 12.
[92] Ex. 14.
[93] Ex. 12 at 8.
[94] Ex.21 at 8.
[95] SONAR at 15.
[96] Ex. 16.
[97] Ex. 7 at 2, 11, 32, 33, 40, 50, 51, 55, 56, 60, 61, 67, 72, 76, 77, 85, 99, 100, 120 and 150.
[98] Ex. 7 at p. 111-112.
[99] Ex. 21 at 9.
[100] SONAR at 19.
[101] Ex. 16.
[102] Ex. 7 at 139, 146, 153; Ex. 16.
[103] Ex. 21 at 9.
[104] SONAR at 21-22.
[105] Ex. 7 at 127-130.
[106] Ex. 25. See also Ex. 7 at 121-122, and 143.
[107] Exs. 11, 13, 22, and 24.
[108] See Ex. 7 at 117, 121, 129 and 134; Exs. 11 and 25.
[109] See Ex. 7 at 129; Ex. 16.
[110] Ex. 7 at 139; Ex. 13.
[111] Ex. 21 at 9.
[112] Ex. 24.
[113] Ex. 26.
[114] Ex. 27.
[115] Transcript at 26-27.
[116] Ex. 21 at 9.
[117] Ex. 21 at 10.
[118] SONAR at 23.
[119] SONAR at 23.
[120] See Ex. 7 at 137.
[121] Ex. 7 at 1, 41, 55, 61, 100, 118, 121, 128, 137, 141, 145, and 149; and Ex. 16.
[122] Ex. 7 at 117-118; and Ex. 16.
[123] Ex. 21 at 10.
[124] Ex. 12. See also, Ex. 16 and Ex. 7 at 61, 88, 101, 114, 119, 127, 141, 144, 148, 152, and 156.
[125] Ex. 21 at 11.
[126] SONAR at 27-28.
[127] Ex. 7 at p. 111-112.
[128] Ex. 21 at 11.