NY State Senate Bill 2011-S7088

Senate Bill S7088

2011-2012 Legislative Session

Relates to pre and post test reporting requirements, test site registration and sign in, and establishes crime related to educational testing fraud

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 21, 2012	committed to rules
Jun 18, 2012	amended on third reading (t) 7088a
Jun 11, 2012	advanced to third reading
Jun 06, 2012	2nd report cal.
Jun 05, 2012	1st report cal.1092
Apr 27, 2012	referred to higher education

Votes

- Jun 5, 2012 - Higher Education Committee Vote
  S7088
  
  14
  
  Aye
  
  1
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Higher Education Committee Vote: Jun 5, 2012
      
      aye (14)
      
      Alesi
      
      Carlucci
      
      Flanagan
      
      Griffo
      
      Grisanti
      
      Kennedy
      
      LaValle
      
      Maziarz
      
      Oppenheimer
      
      Parker
      
      Ritchie
      
      Robach
      
      Seward
      
      Zeldin
      
      nay (1)
      
      Rivera
      
      aye wr (3)
      
      Krueger
      
      Serrano
      
      Stavisky

Bill Amendments

Original

A (Active)

2011-S7088 - Details

Current Committee:: Senate Rules
Law Section:: Education Law
Laws Affected:: Amd §§340, 344 & 344-b, add §344-d, Ed L; add §§170.80, 170.85 & 190.71, amd §190.25, Pen L
Versions Introduced in 2013-2014 Legislative Session:: S2220

2011-S7088 - Summary

Relates to pre and post test reporting requirements, test site registration and sign in, and establishes crimes related to educational testing fraud.

2011-S7088 - Sponsor Memo

                                BILL NUMBER:S7088

TITLE OF BILL:
An act to amend the education law, in relation to pre and post test
reporting requirements and test site registration and sign in; and to
amend the penal law, in relation to establishing the crimes forgery of
an educational test, criminal facilitation of educational testing fraud,
and scheme to defraud educational testing

PURPOSE:
To amend the education law to authorize testing agencies to temporarily
suspend a standardized test score and turn a case over to proper author-
ities upon a finding that substantial evidence exists to suspect that a
test subject committed forgery of an education test and to report such
information to the test subject's home high school and to certain
colleges and universities; to require test subjects to provide certain
forms of identification in order to sit for a standardized test and to
amend the penal law to criminalize certain behavior in relation to
cheating on an exam.

SUMMARY OF PROVISIONS:
Section 1: Amends section 340 of the education law to add four new defi-
nitions to Article 7A.

Section 2: Amends section 344 of the education law to clarify that test
agencies can report the cancellation of a test pursuant to subdivision

eight-a of section 344-b of the education law.

Section 3: Amends subdivision 3 of section 344-b of the education law to
clarify that test agencies can report the cancellation of a test score.

Section 4: Amends section 344-b of the education law to add a new subdi-
vision 5-a to authorize a test agency to temporarily suspend a test
subject's score.

Section 5: Amends subdivision 6(c) and 7 of section 344-b of the educa-
tion law to clarify that if a test agency temporarily suspends a test
subject's test score and refers the case to the proper authorities, the
test subject shall have an opportunity to make claims of innocents to
the proper authorities.

Section 6: Amends section 344-b of the education law and adds two new
sections, 8-a and 8-b in relation to temporary suspensions of test
scores upon a finding that test subject may have committee forgery of an
educational test and requires the test agency to refer the case to the
proper authorities.

Section 7: Amends the education law to add a new section 344-d in
relation to pre and post test reporting requirements and test site
registration and sign in requirements.

Section 8: Amends the penal law to create the crime of forgery of an
education test.

Section 9: Amends the penal law to add that a person would be guilty of
criminal impersonation in the second degree if he/she impersonates
another registered to take a standardized test or solicits, requests,
commands, importunes or intentionally aids another person to engage in
such conduct.

Section 10. Amends the penal law to create the crime of criminal facili-
tation of educational testing fraud.

Section 11. Amends the penal law to create the crime of scheme to
defraud educational testing.

Section 12. Creates an oversight panel within the State Education
Department's Office of Higher Education to review the policies and
procedures of test agencies that administer standardized tests in New
York State.

Section 13. Sets for the effective date.

JUSTIFICATION:
This bill is necessary to create deterrents from cheating on post
secondary standardized tests, to improve identification verification of
those who take such exams in this state and to criminalize behaviors
that rise to the level of fraud and criminal impersonation in relation
to taking a standardized test.

In recent months, an SAT cheating scandal was discovered on Long Island.
It was found that high school students were paying large sums of money
to college students who falsified identifications and took the SA Ts for
them. This scandal included up to 50 students, some .of who were middle
men who connected the impersonating test takers with the high school
students who had the ability to pay up to $3,600 for another to take the
exam for them.

The Senate Standing Committee on Higher Education held hearings on this
issue in October of 2011. It was discovered that lax test site identifi-
cation procedures and no test taker reporting requirements; along with
test taker's due process rights under the education law, allowed such
egregious conduct to occur. NYS law specifically delineates what a test-
ing agency is allowed to do upon the discovery of cheating. There is
nothing in relation to the regulation of standardized tests that would
be a deterrent from cheating and there are no specific criminal penal-
ties with regard to educational fraud.

This bill would amend the sections of the education law that prevent
testing agencies from reporting to students' home high schools and the
colleges and universities to which such students applied if a test score
is cancelled due to the discovery that such student cheated. In addi-
tion, this bill creates reporting requirements and criminal penalties.

Such deterrents will go a long way to prevent cheating on standardized
tests in the future.

With the increasing number of college applicants fighting for limited
spots, getting into the college of your choice has become more and more
competitive. Therefore, there has been increased importance placed a
student's SAT or ACT score. When a student cheats, such behavior has the
potential to displace honest, hard working students from the most
competitive colleges. Students who didn't earn and don't deserve such
coveted placements should not have this unfair advantage.

LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
None to the State.

EFFECTIVE DATE:
This act shall take effect on the first November next succeeding the
date on which it shall have become law.

2011-S7088 - Bill Text download pdf

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

                                  7088

                            I N  S E N A T E

                             April 27, 2012
                               ___________

Introduced  by  Sen. LAVALLE -- read twice and ordered printed, and when
  printed to be committed to the Committee on Higher Education

AN ACT to amend the education law, in relation  to  pre  and  post  test
  reporting  requirements and test site registration and sign in; and to
  amend the penal law, in relation to establishing the crimes forgery of
  an educational test,  criminal  facilitation  of  educational  testing
  fraud, and scheme to defraud educational testing

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

  Section 1. Subdivision 3 of section  340  of  the  education  law,  as
amended  by  chapter  813  of  the laws of 1980, is amended and five new
subdivisions 10, 11, 12, 13 and 14 are added to read as follows:
  3. "Test subject" means an individual to whom a test  is  administered
OR AN INDIVIDUAL WHO HAS REGISTERED TO TAKE A TEST.
  10.  "HOME  HIGH SCHOOL" MEANS THE HIGH SCHOOL AT WHICH A TEST SUBJECT
IS OR WAS A MATRICULATED STUDENT AT THE TIME OF TESTING.
  11. "TESTING SITE" MEANS ANY LOCATION WHERE  A  STANDARDIZED  TEST  IS
ADMINISTERED TO A TEST SUBJECT.
  12. "TEST SITE PERSONNEL" MEANS A PERSON PRESENT AT A TESTING SITE WHO
SIGNS  IN TEST SUBJECTS WHO ARE REGISTERED TO TAKE THE TEST AT THAT SITE
AND WHO OVERSEES THE ADMINISTRATION OF A STANDARDIZED TEST. FOR PURPOSES
OF THIS DEFINITION, TESTING SITE  PERSONNEL  MAY  INCLUDE,  BUT  NOT  BE
LIMITED TO, A PROCTOR, TEST CENTER SUPERVISOR, ASSISTANT SUPERVISOR OR A
ROOM  PROCTOR.  EACH  MAY  HAVE  A DIFFERENT ROLE IN TEST ADMINISTRATION
OVERSIGHT.
  13. "ACCEPTABLE PHOTO IDENTIFICATION" MEANS  A  SCHOOL  IDENTIFICATION
CARD,  A  SCHOOL IDENTIFICATION FORM PREPARED BY THE HOME HIGH SCHOOL, A
STATE-ISSUED DRIVER'S LICENSE, A STATE-ISSUED  NON-DRIVER'S  LICENSE,  A
PASSPORT,  A  MILITARY  IDENTIFICATION CARD OR A GOVERNMENT ISSUED IDEN-
TIFICATION CARD. THE PHOTOGRAPH ON ANY SUCH IDENTIFICATION CARD MUST  BE
A CURRENT REPRESENTATION OF THE TEST TAKER'S IMAGE.
  14.  "PHOTO ADMISSION TICKET" MEANS A TICKET ASSIGNED TO A TEST REGIS-
TRANT, UPON REGISTERING TO TAKE THE ACT ASSESSMENT (ACT) OR THE SCHOLAS-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15560-01-2

S. 7088                             2

TIC APTITUDE TEST (SAT) WHICH IS PRODUCED BY THE TEST  AGENCY  ACCORDING
TO SUCH AGENCY'S RULES, REGULATIONS OR PROTOCOLS.
  S 2. Section 344 of the education law is amended by adding a new clos-
ing paragraph to read as follows:
  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO PREVENT THE TESTING
AGENCY FROM REPORTING THE CANCELLATION  OF  A  TEST  SCORE  PURSUANT  TO
SUBDIVISION  EIGHT-A OF SECTION THREE HUNDRED FORTY-FOUR-B OF THIS ARTI-
CLE.
  S 3. Paragraph (e) of subdivision 3 of section 344-b of the  education
law,  as added by chapter 845 of the laws of 1992, is amended to read as
follows:
  (e) the potential consequences which  may  result  from  the  investi-
gation, such as withholding or invalidating the test score; OR REPORTING
THE  CANCELLATION  OF  SUCH SCORE TO THE TEST SUBJECT'S HOME HIGH SCHOOL
AND/OR ANY COLLEGES, UNIVERSITIES, OR OTHER ENTITIES WHO WERE DESIGNATED
OR ARE OTHERWISE AUTHORIZED TO RECEIVE THE SCORE REPORT.
  S 4. Section 344-b of the education law is amended  by  adding  a  new
subdivision 5-a to read as follows:
  5-A.  (A)  IF  THE TEST AGENCY FINDS SUBSTANTIAL EVIDENCE TO SUPPORT A
FINDING THAT A TEST SUBJECT MAY HAVE COMMITTED FORGERY OF AN EDUCATIONAL
TEST AS DEFINED IN SECTION 170.80 OF THE  PENAL  LAW,  THE  TEST  AGENCY
SHALL  BE AUTHORIZED TO TEMPORARILY SUSPEND THE SCORE AND SHALL BE OBLI-
GATED TO TURN SUCH TEST SUBJECT'S CASE OVER TO  THE  PROPER  AUTHORITIES
PURSUANT TO SUBDIVISION EIGHT-A OF THIS SECTION.
  (B) AT SUCH TIME, THE TEST AGENCY SHALL NOTIFY THE TEST SUBJECT OF THE
DECISION TO TURN OVER THE CASE, AND THE AUTHORITIES TO WHOM THE CASE HAS
BEEN REFERRED.
  S 5. Subdivision 6 and paragraph (c) of subdivision 7 of section 344-b
of  the  education  law, as added by chapter 845 of the laws of 1992, is
amended to read as follows:
  6. The test subject shall have thirty days following  receipt  of  the
notice  by registered mail to respond to the notice of inauthenticity or
irregularity, PROVIDED HOWEVER,  IF  THE  TEST  AGENCY  HAS  TEMPORARILY
SUSPENDED  SUCH  TEST  PURSUANT TO SUBDIVISION FIVE-A OF THIS SECTION, A
TEST SUBJECT SHALL HAVE THE OPTION TO RAISE ANY CLAIM OR CLAIMS OF INNO-
CENCE WITH THE PROPER AUTHORITIES ASSIGNED TO HIS OR HER CASE.
  (c) Nothing in this section precludes the parties from seeking  resol-
ution  of the testing problems by either judicial review or arbitration.
The test agency and the test subject shall make a good faith  effort  to
complete  an  arbitration  process in no more than thirty days after the
election of such option, PROVIDED,  HOWEVER,  IF  THE  TEST  AGENCY  HAS
TEMPORARILY  SUSPENDED  SUCH TEST PURSUANT TO SUBDIVISION FIVE-A OF THIS
SECTION, A TEST SUBJECT SHALL HAVE THE OPTION TO TAKE UP ANY  CLAIMS  OF
INNOCENCE WITH THE PROPER AUTHORITIES ASSIGNED TO HIS OR HER CASE.
  S  6. Subdivision 8 of section 344-b of the education law, as added by
chapter 845 of the laws of 1992, is amended and two new subdivisions 8-a
and 8-b are added to read as follows:
  8. The test agency shall not release confidential information  to  any
authorized  test score recipients regarding a test subject under pending
investigation, unless authorized to do so by the test subject OR AUTHOR-
IZED TO DO SO PURSUANT TO SUBDIVISION EIGHT-A OF THIS SECTION.
  8-A. WHEN A TEST AGENCY FINDS SUBSTANTIAL EVIDENCE TO SUPPORT A  FIND-
ING  THAT  A  TEST  SUBJECT MAY HAVE COMMITTED FORGERY OF AN EDUCATIONAL
TEST AS DEFINED IN SECTION 170.80 OF THE  PENAL  LAW,  THE  TEST  AGENCY
SHALL  BE AUTHORIZED TO TEMPORARILY SUSPEND THE SCORE AND SHALL BE OBLI-
GATED TO TURN SUCH TEST SUBJECT OR TEST REGISTRANT OVER  TO  THE  PROPER

S. 7088                             3

AUTHORITIES.    WHILE THE CASE IS PENDING BEFORE THE PROPER AUTHORITIES,
THE TESTING AGENCY SHALL NOTIFY SUCH TEST SUBJECT  OF  THE  DECISION  TO
TURN  HIS  OR  HER CASE OVER TO THE PROPER AUTHORITIES, SHALL INFORM THE
TEST  SUBJECT'S  HOME HIGH SCHOOL OF THE DECISION TO TURN SUCH CASE OVER
TO THE PROPER AUTHORITIES AND SHALL INFORM ANY COLLEGES, UNIVERSITIES OR
OTHER ENTITIES AUTHORIZED TO RECEIVE SUCH SCORE REPORT OF THE  TEMPORARY
SUSPENSION  OF  THE TEST SCORE. IF THE PROPER AUTHORITY LATER DETERMINES
THAT THE TEST SUBJECT WAS NOT GUILTY OF FORGERY OF AN  EDUCATIONAL  TEST
AS  DEFINED  IN  SECTION  170.80 OF THE PENAL LAW, THE TEST AGENCY SHALL
NOTIFY THE TEST SUBJECT'S HOME HIGH SCHOOL, LIFT THE  TEMPORARY  SUSPEN-
SION  AND  REINSTATE  THE  SCORE  AND REPORT SUCH SCORE TO ANY COLLEGES,
UNIVERSITIES OR OTHERWISE AUTHORIZED RECIPIENTS.
  8-B. ANY TEST SUBJECT WHO IS FOUND GUILTY OF FORGERY OF AN EDUCATIONAL
TEST, IN ADDITION TO ANY PENALTIES UNDER THE PENAL  LAW,  SHALL  NOT  BE
AUTHORIZED TO SIT FOR ANOTHER STANDARDIZED TEST WITHIN ONE YEAR FROM THE
DATE OF CONVICTION.
  S  7.  The  education  law is amended by adding a new section 344-d to
read as follows:
  S 344-D. PRE AND POST TEST REPORTING  REQUIREMENTS  AND  TESTING  SITE
REGISTRATION  AND SIGN IN REQUIREMENTS. 1. THIS SECTION SHALL ONLY APPLY
TO POST SECONDARY SCHOOL ADMISSION EXAMS SUCH AS THE SCHOLASTIC APTITUDE
TEST (SAT) OR THE ACT ASSESSMENT (ACT).
  2. (A) UPON REGISTERING TO SIT FOR THE SAT OR ACT A TEST SUBJECT SHALL
REPORT TO THEIR HOME HIGH SCHOOL THE TESTING  SITE  AT  WHICH  THEY  ARE
REGISTERED TO TAKE THE EXAM;
  (B)  UPON  COMPLETION OF THE EXAM AND RECEIPT OF THEIR SCORE, THE TEST
SUBJECT MUST REPORT SUCH SCORE TO THEIR HOME HIGH SCHOOL.
  3. IN ORDER FOR A TEST SUBJECT TO SIT FOR SAT OR ACT THE TEST  SUBJECT
UPON SIGN IN, MUST PROVIDE TO THE APPROPRIATE TEST SITE PERSONNEL AT THE
TESTING SITE, THE FOLLOWING:
  (A)  IF A TEST SUBJECT IS REGISTERED TO TAKE AND IS TAKING THE TEST AT
THEIR HOME HIGH SCHOOL OR IF THE TEST SUBJECT IS REGISTERED TO TAKE  THE
EXAM  AND  IS  TAKING  THE EXAM AT A SITE THAT IS NOT THE TEST SUBJECT'S
HOME HIGH SCHOOL, THE TEST SUBJECT MUST PROVIDE ONE FORM  OF  ACCEPTABLE
PHOTO IDENTIFICATION AND A PHOTO ADMISSION TICKET.
  (B)  A  TEST  SUBJECT MUST PRE-REGISTER TO TAKE THE EXAM AND MUST TAKE
THE EXAM AT THE TESTING SITE AT WHICH THEY ARE REGISTERED. WALK-INS TO A
DIFFERENT SITE SHALL NOT BE ALLOWED TO SIT FOR THE EXAM.
  4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT ANY OTHER  TEST
DAY  OR POST TEST DAY POLICIES AND PROCEDURES REQUIRED BY THE TEST AGEN-
CY.
  S 8. The penal law is amended by adding a new section 170.80  to  read
as follows:
S 170.80 FORGERY OF AN EDUCATIONAL TEST.
  A PERSON IS GUILTY OF FORGERY OF AN EDUCATIONAL TEST WHEN, WITH INTENT
TO  DEFRAUD,  DECEIVE  OR  INJURE  ANOTHER,  HE  OR  SHE  FALSELY MAKES,
COMPLETES OR ALTERS AN APPLICATION, REGISTRATION  OR  EXAMINATION  OF  A
STANDARDIZED  TEST  AS  DEFINED  BY  SECTION  THREE HUNDRED FORTY OF THE
EDUCATION LAW; MISREPRESENTS HIS OR HER IDENTITY IN TAKING SUCH A STAND-
ARDIZED TEST FOR OR ON BEHALF OF ANOTHER PERSON; OR SOLICITS,  REQUESTS,
COMMANDS,  IMPORTUNES  OR INTENTIONALLY AIDS ANOTHER PERSON TO ENGAGE IN
SUCH CONDUCT.
  FORGERY OF AN EDUCATIONAL TEST IS A CLASS A MISDEMEANOR.
  S 9. Section 190.25 of the penal law is amended by adding a new subdi-
vision 5 to read as follows:

S. 7088                             4

  5. IMPERSONATES ANOTHER PERSON WHO IS REGISTERED TO TAKE  A  STANDARD-
IZED  TEST  AS  DEFINED  BY SECTION THREE HUNDRED FORTY OF THE EDUCATION
LAW, TO TAKE SUCH EDUCATIONAL TEST,  OR  SOLICITS,  REQUESTS,  COMMANDS,
IMPORTUNES  OR  INTENTIONALLY  AIDS  ANOTHER  PERSON  TO  ENGAGE IN SUCH
CONDUCT.
  S  10. The penal law is amended by adding a new section 170.85 to read
as follows:
S 170.85 CRIMINAL FACILITATION OF EDUCATIONAL TESTING FRAUD.
  A PERSON IS GUILTY OF CRIMINAL  FACILITATION  OF  EDUCATIONAL  TESTING
FRAUD, WHEN BEING TWENTY ONE YEARS OF AGE OR OLDER, HE OR SHE PROVIDES A
BENEFIT TO ANOTHER TO ENTICE THE OTHER TO COMMIT THE CRIME OF FORGERY OF
AN  EDUCATIONAL  TEST PURSUANT TO SECTION 170.80 OF THIS ARTICLE, OR THE
CRIME OF CRIMINAL IMPERSONATION IN THE SECOND DEGREE PURSUANT TO  SUBDI-
VISION FIVE OF SECTION 190.25 OF THIS TITLE.
  CRIMINAL  FACILITATION OF EDUCATIONAL TESTING FRAUD IS A CLASS E FELO-
NY.
  S 11. The penal law is amended by adding a new section 190.71 to  read
as follows:
S 190.71 SCHEME TO DEFRAUD EDUCATIONAL TESTING.
  A PERSON IS GUILTY OF SCHEME TO DEFRAUD EDUCATIONAL TESTING WHEN HE OR
SHE  COMMITS  THE  CRIME  OF  FORGERY OF AN EDUCATIONAL TEST PURSUANT TO
SECTION 170.80 OF THIS TITLE ON THREE OR MORE OCCASIONS; OR COMMITS  THE
CRIME  OF CRIMINAL IMPERSONATION IN THE SECOND DEGREE PURSUANT TO SUBDI-
VISION 5 OF SECTION 190.25 OF THIS ARTICLE, IMPERSONATING MORE THAN  TWO
OTHER  PERSONS; OR COMMITS A COMBINATION OF THESE CRIMES INVOLVING THREE
OR MORE DIFFERENT INCIDENTS OR THREE OR MORE OTHER IDENTITIES.
  SCHEME TO DEFRAUD EDUCATIONAL TESTING IS A CLASS E FELONY.
  S 12. a. Oversight panel. The commissioner of education  shall  estab-
lish  within  the  office of higher education, a testing integrity over-
sight panel that shall review the policies and procedures of test  agen-
cies  that  administer  post  secondary  standardized  tests in New York
state.
  b. Membership. The panel shall consist of three experts from the test-
ing industry to be  appointed  by  the  commissioner  of  education  and
approved by a vote of the higher education committees in each house at a
committee  meeting  designated  by  the chairs in each respective house.
Each panel member shall serve for a four  year  term.  The  commissioner
shall  have the authority to remove a panel member if he or she deems it
appropriate.
  c. Reporting. The panel shall annually report to the higher  education
subcommittee  of the board of regents. Such report shall include but not
be limited to:
  (i) a review  of  security  procedures  and  any  recommendations  for
improvement;
  (ii)  the  number  of  canceled test scores per year and the number of
cases referred to the proper authorities as proscribed by this act;
  (iii) the number and type of convictions of any crimes created by this
act; and
  (iv) a review of the test site personnel training procedures  and  any
recommendations for improvement.
  d.  Question  review.  The  panel may also review a random sampling of
previously released test questions to be provided to the  panel  by  the
test agencies to ensure they are fair and unbiased.
  e.  Report to the higher education committees. Subsequent to the pres-
entation of the report to the higher education subcommittee of the board

S. 7088                             5

of regents, the oversight panel shall submit such report to  the  chairs
of the higher education committees in each house.
  S  13.  This  act  shall  take  effect  on  the first of November next
succeeding the date on which it shall have become a law.

2011-S7088A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Education Law
Laws Affected:: Amd §§340, 344 & 344-b, add §344-d, Ed L; add §§170.80, 170.85 & 190.71, amd §190.25, Pen L
Versions Introduced in 2013-2014 Legislative Session:: S2220

2011-S7088A (ACTIVE) - Summary

Relates to pre and post test reporting requirements, test site registration and sign in, and establishes crimes related to educational testing fraud.

2011-S7088A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7088A

TITLE OF BILL:
An act to amend the education law, in relation to pre and post test
reporting requirements and test site registration and sign in; and to
amend the penal law, in relation to establishing the crime of criminal
facilitation of educational testing fraud

PURPOSE:
To amend the education law to authorize testing agencies to
temporarily suspend a standardized test score and turn a case over to
proper authorities upon a finding that substantial evidence of test
irregularity exists and to report such information to the test
subject's home high school to require test subjects to provide certain
forms of identification in order to sit for a standardized test and to
amend the penal law to criminalize certain behavior in relation to
cheating on an exam.

SUMMARY OF PROVISIONS:
Section 1: Amends section 340 of the education law to add four new
definitions to Article 7 A.

Section 2: Amends section 344 of the education law to clarify that
test agencies can report the cancellation of a test pursuant to
subdivision eight-a of section 344-b of the education law.

Section 3: Amends subdivision 3 of section 344-b of the education law
to clarify that test agencies can report the cancellation of a test
score.

Section 4: Amends section 344-b of the education law to add a new
subdivision 5-a to authorize a test agency to temporarily suspend a
test subject's score.

Section 5: Amends subdivision 6(c) and 7 of section 344-b of the
education law to clarify that if a test agency temporarily suspends a
test subject's test score and refers the case to the proper
authorities, the test subject shall have an opportunity to make claims
of innocents to the proper authorities.

Section 6: Amends section 344-b of the education law and adds two new
sections, 8-a and 8-b in relation to temporary suspensions of test
scores upon a finding of test irregularity, which leads the test
agency to turn the case over to the proper authorities.

Section 7: Amends the education law to add a new section 344-d in
relation to pre and post test reporting requirements and test site
registration and sign in requirements.

Section 8: Amends the penal law to create the crime of criminal
facilitation of educational testing fraud.

Section 9: Requires the test agencies who administer the SAT or ACT to
report to the higher education committees in each house one year from
the effective date of this act.


Section 10. Sets for the effective date.

JUSTIFICATION:
This bill is necessary to create deterrents from cheating on post
secondary standardized tests, to improve identification verification
of those who take such exams in this state and to criminalize the
facilitation of behaviors that rise to the level of criminal
impersonation in relation to taking a standardized test.

In recent months, an SAT cheating scandal was discovered on Long
Island. It was found that high school students were paying large sums
of money to college students who falsified identifications and took
the SATs for them. This scandal included up to 50 students, some of
who were middle men who connected the impersonating test takers with
the high school students who had the ability to pay up to $3,600 for
another to take the exam for them.

The Senate Standing Committee on Higher Education held hearings on
this issue in October of 2011. It was discovered that lax test site
identification procedures and no test taker reporting requirements;
along with test taker's due process rights under the education law,
allowed such egregious conduct to occur. NYS law specifically
delineates what a testing agency is allowed to do upon the discovery
of cheating. There is nothing in relation to the regulation of
standardized tests that would be a deterrent from cheating and there
are no specific criminal penalties with regard to criminal
facilitation of educational testing fraud.

This bill would amend the sections of the education law that prevent
testing agencies from reporting to students' home high schools if a
test score is cancelled due to the discovery that such student
cheated. In addition, this bill creates reporting requirements and
establishes the crime of criminal facilitation of educational testing
fraud. This new crime will enable prosecutors to charge parents or
guardians with criminal facilitation of educational testing fraud when
they are providing the financial benefit for someone else to
impersonate their child for the purposes of taking an undergraduate
entrance exam. Such deterrents will go a long way to prevent cheating
on standardized tests in the future.

With the increasing number of college applicants fighting for limited
spots, getting into the college of your choice has become more and
more competitive. Therefore, there has been increased importance
placed a student's SAT or ACT score. When a student cheats, such
behavior has the potential to displace honest, hard working students
from the most competitive colleges, Students who didn't earn and don't
deserve such coveted placements should not have this unfair advantage.

LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
None to the State.

EFFECTIVE DATE:
This act shall take effect on the first November next succeeding the
date on which it shall have become law.

2011-S7088A (ACTIVE) - Bill Text download pdf

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

                                 7088--A
    Cal. No. 1092

                            I N  S E N A T E

                             April 27, 2012
                               ___________

Introduced  by  Sen. LAVALLE -- read twice and ordered printed, and when
  printed to be committed  to  the  Committee  on  Higher  Education  --
  reported  favorably  from  said committee, ordered to first and second
  report, ordered to a third reading,  amended  and  ordered  reprinted,
  retaining its place in the order of third reading

AN  ACT  to  amend  the  education law, in relation to pre and post test
  reporting requirements and test site registration and sign in; and  to
  amend the penal law, in relation to establishing the crime of criminal
  facilitation of educational testing fraud

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

  Section 1. Subdivision 3 of section  340  of  the  education  law,  as
amended  by  chapter  813  of  the laws of 1980, is amended and five new
subdivisions 10, 11, 12, 13 and 14 are added to read as follows:
  3. "Test subject" means an individual to whom a test  is  administered
OR AN INDIVIDUAL WHO HAS REGISTERED TO TAKE A TEST.
  10.  "HOME  HIGH SCHOOL" MEANS THE HIGH SCHOOL AT WHICH A TEST SUBJECT
IS OR WAS A MATRICULATED STUDENT AT THE TIME OF TESTING.
  11. "TESTING SITE" MEANS ANY LOCATION WHERE  A  STANDARDIZED  TEST  IS
ADMINISTERED TO A TEST SUBJECT.
  12. "TEST SITE PERSONNEL" MEANS A PERSON PRESENT AT A TESTING SITE WHO
SIGNS  IN TEST SUBJECTS WHO ARE REGISTERED TO TAKE THE TEST AT THAT SITE
AND WHO OVERSEES THE ADMINISTRATION OF A STANDARDIZED TEST. FOR PURPOSES
OF THIS DEFINITION, TESTING SITE  PERSONNEL  MAY  INCLUDE,  BUT  NOT  BE
LIMITED TO, A PROCTOR, TEST CENTER SUPERVISOR, ASSISTANT SUPERVISOR OR A
ROOM  PROCTOR.  EACH  MAY  HAVE  A DIFFERENT ROLE IN TEST ADMINISTRATION
OVERSIGHT.
  13. "ACCEPTABLE PHOTO IDENTIFICATION" MEANS  A  SCHOOL  IDENTIFICATION
CARD,  A  SCHOOL IDENTIFICATION FORM PREPARED BY THE HOME HIGH SCHOOL, A
STATE-ISSUED DRIVER'S LICENSE, A STATE-ISSUED  NON-DRIVER'S  LICENSE,  A
PASSPORT,  A  MILITARY  IDENTIFICATION CARD OR A GOVERNMENT ISSUED IDEN-
TIFICATION CARD. THE PHOTOGRAPH ON ANY SUCH IDENTIFICATION CARD MUST  BE
A CURRENT REPRESENTATION OF THE TEST TAKER'S IMAGE.

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

                                                           LBD15560-03-2

S. 7088--A                          2

  14.  "PHOTO ADMISSION TICKET" MEANS A TICKET ASSIGNED TO A TEST REGIS-
TRANT, UPON REGISTERING TO TAKE THE ACT ASSESSMENT  (ACT)  OR  WHICH  IS
PRODUCED  BY  THE  TEST  AGENCY  ACCORDING TO SUCH AGENCY'S RULES, REGU-
LATIONS OR PROTOCOLS.
  S 2. Section 344 of the education law is amended by adding a new clos-
ing paragraph to read as follows:
  NOTHING  IN  THIS  SECTION  SHALL  BE CONSTRUED TO PREVENT THE TESTING
AGENCY FROM REPORTING THE CANCELLATION  OF  A  TEST  SCORE  PURSUANT  TO
SUBDIVISION  EIGHT-A OF SECTION THREE HUNDRED FORTY-FOUR-B OF THIS ARTI-
CLE.
  S 3. Paragraph (e) of subdivision 3 of section 344-b of the  education
law,  as added by chapter 845 of the laws of 1992, is amended to read as
follows:
  (e) the potential consequences which  may  result  from  the  investi-
gation, such as withholding or invalidating the test score; OR REPORTING
THE CANCELLATION OF SUCH SCORE TO THE TEST SUBJECT'S HOME HIGH SCHOOL.
  S  4.  Section  344-b  of the education law is amended by adding a new
subdivision 5-a to read as follows:
  5-A. (A) IF THE TEST AGENCY FINDS SUBSTANTIAL EVIDENCE  TO  SUPPORT  A
FINDING  OF  TEST  IRREGULARITY,  AND  SUSPECTS THAT SUCH TEST SUBJECT'S
CONDUCT ROSE TO THE LEVEL OF A CRIME, THE TEST AGENCY SHALL  BE  AUTHOR-
IZED TO TEMPORARILY SUSPEND SUCH TEST SUBJECT'S SCORE AND TURN SUCH TEST
SUBJECT'S CASE OVER TO THE PROPER AUTHORITIES.
  (B) AT SUCH TIME, THE TEST AGENCY SHALL NOTIFY THE TEST SUBJECT OF THE
DECISION TO TURN OVER THE CASE, AND THE AUTHORITIES TO WHOM THE CASE HAS
BEEN REFERRED.
  S 5. Subdivision 6 and paragraph (c) of subdivision 7 of section 344-b
of  the  education law, as added by chapter 845 of the laws of 1992, are
amended to read as follows:
  6. The test subject shall have thirty days following  receipt  of  the
notice  by registered mail to respond to the notice of inauthenticity or
irregularity, PROVIDED HOWEVER,  IF  THE  TEST  AGENCY  HAS  TEMPORARILY
SUSPENDED  SUCH  TEST  PURSUANT TO SUBDIVISION FIVE-A OF THIS SECTION, A
TEST SUBJECT SHALL HAVE THE OPTION TO RAISE ANY CLAIM OR CLAIMS OF INNO-
CENCE WITH THE PROPER AUTHORITIES ASSIGNED TO HIS OR HER CASE.
  (c) Nothing in this section precludes the parties from seeking  resol-
ution  of the testing problems by either judicial review or arbitration.
The test agency and the test subject shall make a good faith  effort  to
complete  an  arbitration  process in no more than thirty days after the
election of such option, PROVIDED,  HOWEVER,  IF  THE  TEST  AGENCY  HAS
TEMPORARILY  SUSPENDED  SUCH TEST PURSUANT TO SUBDIVISION FIVE-A OF THIS
SECTION, A TEST SUBJECT SHALL HAVE THE OPTION TO TAKE UP ANY  CLAIMS  OF
INNOCENCE WITH THE PROPER AUTHORITIES ASSIGNED TO HIS OR HER CASE.
  S  6. Subdivision 8 of section 344-b of the education law, as added by
chapter 845 of the laws of 1992, is amended and two new subdivisions 8-a
and 8-b are added to read as follows:
  8. The test agency shall not release confidential information  to  any
authorized  test score recipients regarding a test subject under pending
investigation, unless authorized to do so by the test subject OR AUTHOR-
IZED TO DO SO PURSUANT TO SUBDIVISION EIGHT-A OF THIS SECTION.
  8-A.  WHEN A TEST AGENCY FINDS SUBSTANTIAL EVIDENCE EXISTS TO  SUPPORT
A  FINDING  OF TEST IRREGULARITY, WHICH LEADS SUCH AGENCY TO TURN A TEST
SUBJECT'S CASE OVER TO THE PROPER  AUTHORITIES,  SUCH  AGENCY  SHALL  BE
AUTHORIZED  TO  TEMPORARILY  SUSPEND  A  TEST  SUBJECT'S SCORE AND SHALL
INFORM THE TEST SUBJECT'S HOME HIGH SCHOOL OF THE DECISION TO TURN  SUCH
CASE  OVER  TO  THE  PROPER  AUTHORITIES. IF THE TEST SUBJECT'S SCORE IS

S. 7088--A                          3

SUBSEQUENTLY CANCELLED AND IT IS  DETERMINED  THAT  THE  TEST  SUBJECT'S
CONDUCT  ROSE TO THE LEVEL OF A CRIME, THE TEST AGENCY SHALL INFORM SUCH
TEST SUBJECT'S HOME HIGH SCHOOL. IF  THE  PROPER  AUTHORITIES  DETERMINE
THAT  THERE  WAS NOT ENOUGH EVIDENCE TO SUPPORT A FINDING OF TEST IRREG-
ULARITY OR CRIMINAL CONDUCT, THEN THE TEST AGENCY SHALL LIFT THE  TEMPO-
RARY  SUSPENSION, REINSTATE THE TEST SUBJECT'S SCORE AND INFORM THE TEST
SUBJECT'S HOME HIGH SCHOOL OF SUCH REINSTATEMENT.
  8-B.  ANY TEST SUBJECT WHOSE CASE HAS BEEN TURNED OVER TO  THE  PROPER
AUTHORITIES  AND  IT IS FOUND THAT TEST IRREGULARITY DOES EXIST AND SUCH
TEST SUBJECT'S CONDUCT ROSE TO THE LEVEL OF A CRIME, SUCH  TEST  SUBJECT
SHALL  NOT BE AUTHORIZED TO SIT FOR ANOTHER UNDERGRADUATE COLLEGE ADMIS-
SIONS EXAM FOR ONE YEAR FROM THE DATE OF CONVICTION.
  S 7. The education law is amended by adding a  new  section  344-d  to
read as follows:
  S  344-D.  PRE  AND  POST TEST REPORTING REQUIREMENTS AND TESTING SITE
REGISTRATION AND SIGN IN REQUIREMENTS. 1. THIS SECTION SHALL ONLY  APPLY
TO  UNDERGRADUATE  COLLEGE  ADMISSION  EXAMS  SUCH AS THE SAT OR THE ACT
ASSESSMENT (ACT).
  2. (A) UPON REGISTERING TO SIT FOR THE SAT OR ACT A TEST SUBJECT SHALL
REPORT TO THEIR HOME HIGH SCHOOL THE TESTING  SITE  AT  WHICH  THEY  ARE
REGISTERED TO TAKE THE EXAM;
  (B)  UPON  COMPLETION OF THE EXAM AND RECEIPT OF THEIR SCORE, THE TEST
SUBJECT MUST REPORT SUCH SCORE TO THEIR HOME HIGH SCHOOL.
  3. IN ORDER FOR A TEST SUBJECT TO SIT FOR SAT OR ACT THE TEST  SUBJECT
UPON SIGN IN, MUST PROVIDE TO THE APPROPRIATE TEST SITE PERSONNEL AT THE
TESTING SITE, THE FOLLOWING:
  (A)  IF A TEST SUBJECT IS REGISTERED TO TAKE AND IS TAKING THE TEST AT
THEIR HOME HIGH SCHOOL OR IF THE TEST SUBJECT IS REGISTERED TO TAKE  THE
EXAM  AND  IS  TAKING  THE EXAM AT A SITE THAT IS NOT THE TEST SUBJECT'S
HOME HIGH SCHOOL, THE TEST SUBJECT MUST PROVIDE ONE FORM  OF  ACCEPTABLE
PHOTO IDENTIFICATION AND A PHOTO ADMISSION TICKET.
  (B)  A  TEST  SUBJECT MUST PRE-REGISTER TO TAKE THE EXAM AND MUST TAKE
THE EXAM AT THE TESTING SITE AT WHICH THEY ARE REGISTERED. WALK-INS TO A
DIFFERENT SITE SHALL NOT BE ALLOWED TO SIT FOR THE EXAM.
  4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT ANY OTHER  TEST
DAY  OR POST TEST DAY POLICIES AND PROCEDURES REQUIRED BY THE TEST AGEN-
CY.
  S 8.  The penal law is amended by adding a new section 170.80 to  read
as follows:
S 170.80 CRIMINAL FACILITATION OF EDUCATIONAL TESTING FRAUD.
  A  PERSON  IS  GUILTY  OF CRIMINAL FACILITATION OF EDUCATIONAL TESTING
FRAUD WHEN, WITH INTENT TO DEFRAUD, DECEIVE OR INJURE ANOTHER, HE OR SHE
PROVIDES A BENEFIT TO ANOTHER PERSON TO ENTICE SUCH PERSON TO COMMIT THE
CRIME OF CRIMINAL IMPERSONATION IN THE SECOND  DEGREE  IN  VIOLATION  OF
SECTION  190.25  OF THIS TITLE BY IMPERSONATING ANOTHER PERSON AS A TEST
SUBJECT OF A STANDARDIZED TEST AS THAT TERM IS  DEFINED  IN  SUBDIVISION
ONE  OF  SECTION THREE HUNDRED FORTY OF THE EDUCATION LAW AND THE PERSON
BEING IMPERSONATED IS THE CHILD OF THE PERSON PROVIDING THE BENEFIT.
  CRIMINAL FACILITATION OF EDUCATIONAL TESTING FRAUD IS A CLASS E  FELO-
NY.
  S  9. Reporting. The test agencies administering the SAT and ACT shall
report to the higher education committees in the senate and assembly one
year from the effective date of this act. Any further reports  shall  be
given  upon  request  of either committee chair, after a reasonable time
has been given for such test  agencies  to  compile  such  report.  Such
report shall include but not be limited to:

S. 7088--A                          4

  (a) a review of current security procedures;
  (b) the number of cases of suspected test score irregularity;
  (c)  the  number  of  canceled  test scores per year and the number of
cases referred to the proper authorities; and
  (d) a review of test site personnel training procedures.
  S 10. This act shall  take  effect  on  the  first  of  November  next
succeeding the date on which it shall have become a law.

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