NY Educ L § 344-B (2021)
2021 New York Laws EDN - Education Title 1 - General Provisions Article 7-A - Standardized Testing 344-B - Due Process.

§ 344-b. Due  process.  Each  test  agency  shall  ensure  due process protection of test  subjects  whose  scores  are  being  questioned  for suspected inauthenticity or irregularity in test administration.   1.  When a test agency is presented with information which renders the test subject's test score suspect, whether that information  is  in  the form  of  allegations  of  collusion  or  cheating,  or  irregular  test administration, or irregular statistical data, or any  other  form,  the test agency is responsible for reviewing the information and determining if withholding the test subject's score is warranted.   2.  If  the test agency determines that withholding the test subject's score is warranted, the test agency shall give the test subject  written notice  of  the  test  agency's  decision.  The  notice shall be sent by registered mail not later than five working days after the test agency's decision.   3. The notice to the test subject shall include all of the following:  (a) a complete summary of the information submitted to the test agency and relied upon by the test agency to withhold the score;  (b)  a  complete  summary  of  the  pertinent  facts  surrounding  the investigation;  (c)  a statement of the test subject's right to receive, upon request, details supporting the complete summaries referred to in paragraphs  (a) and (b) of this subdivision;  (d)  the policies and procedures that were followed by the test agency in reviewing and rendering a decision to investigate the test score;  (e)  the  potential   consequences   which   may   result   from   the investigation, such as withholding or invalidating the test score;  (f)  a  summary  of  the information that may be submitted to the test agency by the test subject to  support  the  authenticity  of  the  test score; and  (g)  a  statement  informing  the test subject that the opportunity to respond to the notice will be afforded for not more than fifteen working days following the date the notice was delivered. No final  decision  on the  question  of  suspected  irregularity  or  inauthenticity  shall be rendered by the test agency until the test subject  under  investigation has  responded,  or  the time for doing so has expired, whichever occurs first.   4. After the time period specified in  paragraph  (g)  of  subdivision three  of  this section has expired, the test agency shall review all of the evidence and shall make a good faith effort  to  render  a  decision regarding the authenticity of the score, within fifteen working days and notify  the  test  subject  immediately.  No test agency shall cancel or invalidate a test subject's test scores  on  the  basis  of  an  alleged irregularity  or  inauthenticity  unless,  after  all  evidence has been considered by the test agency, substantial evidence  resulting  from  an investigation   conducted   pursuant   to   this  section  supports  the cancellation or invalidation.   5. When the test agency determines that substantial evidence exists to support cancellation or invalidation of a test score,  the  test  agency shall provide the test subject with a choice of the following options:  (a)  cancellation  of the test scores in question, with full refund of all test fees;  (b) an opportunity to  take  the  test  again  privately  and  without charge; or  (c)  an  opportunity  to  seek  arbitration  or judicial review of the matter.   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.    7. If the test subject responds to the  notice  of  inauthenticity  or irregularity  of  test  scores  sent  by the test agency within the time period specified by subdivision six of this  section,  the  test  agency shall  review  the  contents  of the response and comply with one of the following:  (a)  If  the  test subject requests cancellation of the test scores, a full refund of all test  fees  will  be  provided  within  a  reasonable period.  (b) If the test subject requests an opportunity to take the test again privately  and  without  charge,  the test agency shall make appropriate accommodations that are mutually agreed upon by the test agency and test subject so the test subject has  sufficient  time  to  prepare  for  the retest.  The retest shall be given in a reasonable and timely manner. If the score on the retest is higher, the higher score shall be reported.  (c) Nothing  in  this  section  precludes  the  parties  from  seeking resolution  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.   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.   9. The test agency shall immediately release the  test  score  to  the test  subject  and  the test score recipients, if any, where substantial evidence does not exist to render the inauthenticity or irregularity  of the test score.   10.  The  procedures  prescribed  in  this  section  do  not  apply to instances where the cancellation of all test  scores  results  from  the complete  disruption  of  the  administration  of  the  test, such as by natural disasters, national emergencies,  inadequate  or  improper  test conditions, answer sheet printing errors, or testing agency errors.   11. Time procedures described in this section shall not apply in those instances  where  test  scores  have already been reported to test score recipients.