§ 344-B — Due process

§ 344-b. Due process. Each test agency shall ensure due process\nprotection of test subjects whose scores are being questioned for\nsuspected inauthenticity or irregularity in test administration.\n 1. When a test agency is presented with information which renders the\ntest subject's test score suspect, whether that information is in the\nform of allegations of collusion or cheating, or irregular test\nadministration, or irregular statistical data, or any other form, the\ntest agency is responsible for reviewing the information and determining\nif withholding the test subject's score is warranted.\n 2. If the test agency determines that withholding the test subject's\nscore is warranted, the test agency shall give the test subject written\nnotice of the test agency's decision. The notice shall be sent by\nregistered mail not later than five working days after the test agency's\ndecision.\n 3. The notice to the test subject shall include all of the following:\n (a) a complete summary of the information submitted to the test agency\nand relied upon by the test agency to withhold the score;\n (b) a complete summary of the pertinent facts surrounding the\ninvestigation;\n (c) a statement of the test subject's right to receive, upon request,\ndetails supporting the complete summaries referred to in paragraphs (a)\nand (b) of this subdivision;\n (d) the policies and procedures that were followed by the test agency\nin reviewing and rendering a decision to investigate the test score;\n (e) the potential consequences which may result from the\ninvestigation, such as withholding or invalidating the test score;\n (f) a summary of the information that may be submitted to the test\nagency by the test subject to support the authenticity of the test\nscore; and\n (g) a statement informing the test subject that the opportunity to\nrespond to the notice will be afforded for not more than fifteen working\ndays following the date the notice was delivered. No final decision on\nthe question of suspected irregularity or inauthenticity shall be\nrendered by the test agency until the test subject under investigation\nhas responded, or the time for doing so has expired, whichever occurs\nfirst.\n 4. After the time period specified in paragraph (g) of subdivision\nthree of this section has expired, the test agency shall review all of\nthe evidence and shall make a good faith effort to render a decision\nregarding the authenticity of the score, within fifteen working days and\nnotify the test subject immediately. No test agency shall cancel or\ninvalidate a test subject's test scores on the basis of an alleged\nirregularity or inauthenticity unless, after all evidence has been\nconsidered by the test agency, substantial evidence resulting from an\ninvestigation conducted pursuant to this section supports the\ncancellation or invalidation.\n 5. When the test agency determines that substantial evidence exists to\nsupport cancellation or invalidation of a test score, the test agency\nshall provide the test subject with a choice of the following options:\n (a) cancellation of the test scores in question, with full refund of\nall test fees;\n (b) an opportunity to take the test again privately and without\ncharge; or\n (c) an opportunity to seek arbitration or judicial review of the\nmatter.\n 6. The test subject shall have thirty days following receipt of the\nnotice by registered mail to respond to the notice of inauthenticity or\nirregularity.\n 7. If the test subject responds to the notice of inauthenticity or\nirregularity of test scores sent by the test agency within the time\nperiod specified by subdivision six of this section, the test agency\nshall review the contents of the response and comply with one of the\nfollowing:\n (a) If the test subject requests cancellation of the test scores, a\nfull refund of all test fees will be provided within a reasonable\nperiod.\n (b) If the test subject requests an opportunity to take the test again\nprivately and without charge, the test agency shall make appropriate\naccommodations that are mutually agreed upon by the test agency and test\nsubject so the test subject has sufficient time to prepare for the\nretest. The retest shall be given in a reasonable and timely manner. If\nthe score on the retest is higher, the higher score shall be reported.\n (c) Nothing in this section precludes the parties from seeking\nresolution of the testing problems by either judicial review or\narbitration. The test agency and the test subject shall make a good\nfaith effort to complete an arbitration process in no more than thirty\ndays after the election of such option.\n 8. The test agency shall not release confidential information to any\nauthorized test score recipients regarding a test subject under pending\ninvestigation, unless authorized to do so by the test subject.\n 9. The test agency shall immediately release the test score to the\ntest subject and the test score recipients, if any, where substantial\nevidence does not exist to render the inauthenticity or irregularity of\nthe test score.\n 10. The procedures prescribed in this section do not apply to\ninstances where the cancellation of all test scores results from the\ncomplete disruption of the administration of the test, such as by\nnatural disasters, national emergencies, inadequate or improper test\nconditions, answer sheet printing errors, or testing agency errors.\n 11. Time procedures described in this section shall not apply in those\ninstances where test scores have already been reported to test score\nrecipients.\n