Education Assessment and Accountability Review Subcommittee




<MeetMDY1> December 9, 2008


The<MeetNo2> Education Assessment and Accountability Review Subcommittee met on<Day> Tuesday,<MeetMDY2> December 9, 2008, at<MeetTime> 1:15 PM, in<Room> Room 131 of the Capitol Annex.  Senator Jack Westwood, Co-Chair, called the meeting to order and the secretary called the roll.  Representative Harry Moberly, Jr., Co-Chair, presided over the meeting upon arrival.


Present were:


Members:<Members> Senator Jack Westwood, Co-Chair; Representative Harry Moberly Jr., Co-Chair; Senator Ken Winters; Representatives Tim Firkins and Mary Lou Marzian.


Guests:  Representative Ted Edmonds.


LRC Staff:  Sandy Deaton, Audrey Carr, Ken Warlick, and Janet Oliver.


Senator Westwood welcomed Representative Tim Firkins as the newly appointed member to the subcommittee.


Senator Westwood asked staff from the Office of Education Accountability (OEA) to present their study on education technology.  Members were provided a copy of the PowerPoint presentation and a draft of the Review of Education Technology Initiatives report.


Ms. Marcia Seiler, OEA Director, said the report provides detailed information on education technology initiatives that have been funded by the legislature over the last several years.  She said that her staff worked closely with Kentucky Department of Education (KDE) personnel to ensure the accuracy of the information in the report. 


Ms. Brenda Landy, OEA Research Analyst, said the report represents a broad overview of how state appropriations for technology are being spent and how technology initiatives are being implemented and used statewide.  She said that approximately $140 million was expended on K-12 education technology during FY 2008 comprised of 64% state funds, 24% federal funds, and 12% local funds.  She said total expenditures could not be captured since all technology related costs, such as personnel, are not always clearly identified and district expenditure data could not be analyzed in sufficient detail because districts are not required to submit detailed technology data to KDE.  OEA was able to track large appropriations for specific technology projects, such as the Education Technology Trust Fund.  Ms. Landy also noted that FY 2008 may not be typical since funding fluctuates and many projects also require large sums upfront for implementation and lesser amounts for ongoing maintenance. 


Ms. Landy explained that some of the expenditures in technology are used for basic infrastructure and services shared by the entire education system, including security measures, replacement of outdated hardware, email and Internet management, high speed networks, and other related services.  Other funding initiatives support applications required for instruction and operation, i.e., the Student Information System (SIS), individual learning plans (ILP), the district financial system (MUNIS), and eWalk.  There are also initiatives to create and maintain portals that provide students, educators, policymakers, and the general public with access to various educational data and resources, including the Kentucky Instructional Data System (KIDS), virtual schools, the Virtual Library, online assessments, and document management.  Ms. Landy said that each of the initiatives is discussed in detail in the report. 


Ms. Landy said that technology initiatives have created a wide variety of virtual learning opportunities available to all citizens, such as advanced placement (AP) courses, the Virtual Library, Kentucky Educational Television’s Encyclomedia, adult education courses, college courses, and other online resources.  She said the online student ILP helps students explore and plan for careers and allows parents and educators to track their progress.  Also many classrooms have been equipped with improved technology, such as electronic whiteboards and student response systems, which has been funded in some of the poorest communities by coal severance funds.  Ms. Landy explained that technology is also being used in some schools to conduct formative assessments to help identify struggling students and that the KIDS program includes longitudinal assessment data, financial data, and other information, which can be analyzed to tailor educational services to meet student needs.  Also, increased technology funding and use of technology has resulted in Kentucky being highly ranked by Education Week’s “Technology Counts” publication.


Ms. Landy said other accomplishments include the continuing emphasis on equity to prevent gaps in student to computer ratios in high poverty areas; increased controls to help monitor district spending, such as the Kentucky Education Technology System (KETS) master plan and individual district technology plans, which are also used to identify the unmet needs and guide the purchases of technology; deployment of projects, such as the ILP accounts; and improved operational efficiency resulting in public recognition of KDE’s Office of Education Technology by an outside consulting firm.


Ms. Landy next identified challenges related to technology, which included governance, security and privacy issues; sizeable investments required to purchase and maintain systems; and the ongoing need to evaluate whether or not the technology is generating positive results.  She said with regard to governance that Kentucky’s public auditor and an outside consultant found inadequate collaboration and coordination within KDE in that divisions have been allowed to make purchases, hire staff, and set standards and procedures in isolation of each other.  She said in response to inadequate governance, KDE established a few committees to improve coordination within the department but that has not eliminated the lack of coordination and a shared vision, which results in security issues, ineffective use of technology, and cost overruns.   She said outside consultants also found that personnel in various offices and divisions are not held accountable for the cost and performance of technology components and there is also lack of collaboration between K-12 and postsecondary education units, including the Council on Postsecondary Education (CPE) and other agencies.  Ms. Landy provided the example that CPE promotes high school courses through its Virtual Campus which is in direct competition with KDE’s Virtual High School.  Ms. Landy said another issue was inadequate security, which should not only concern technology personnel but the users of the systems, including teachers and students.  She said it is especially important to protect students from inappropriate Internet content, online predators and cyber bullying.


Ms. Landy related that the financial investment over the past 20 years has exceeded one billion dollars, which has been in the form of large upfront funding for hardware and software, but such investment is fruitless without the ongoing funding required to maintain the systems and provide the professional development and training of personnel in the use of the systems.  She also said there currently is no systematic, quantitative evaluation of how technology is used and how it is impacting student achievement, with an example being a lack of sufficient evaluation of student ILPs to ensure their effectiveness and that they are being used for intended purposes.  


Ms. Landy discussed the OEA recommendations.  The first was that KDE review and implement the recommendations previously provided by Kentucky’s Public Auditor’s Office and outside consultants, especially those relating to governance and organizational structure.  The second recommendation was that security policies be formalized and consistently applied within KDE and across schools and districts.  The next recommendation was that the efficiency and effectiveness of all initiatives be evaluated and monitored, including collaboration with other agencies, such as CPE, and that the method KDE uses to pull district financial data be modified to include detailed lower level financial data so it is available for analysis.  The final recommendation related to evaluation of all initiatives, such as the effectiveness of the ILPs, to ensure that each component of the technology system is being utilized to its fullest potential. 


Senator Westwood said he was pleased the review was completed and that some of the recommendations were past due, especially those relating to analyzing the efficiency and effectiveness of the technology systems.  He said it is extremely important that agencies such as KDE and CPE cooperate and collaborate on the purchase and use of expensive, innovative technology systems, especially in the unstable economy, and that all technology be geared toward advancing the “Double the Numbers” initiative.    


Representative Moberly thanked OEA staff for the report and agreed with Senator Westwood about the importance of collaboration between CPE and KDE, which he said was discussed at recent Southern Regional Education Board (SREB) meetings he had attended.  He asked if OEA has a recommendation on the most effective way to ensure collaboration between agencies.  Ms. Seiler responded that OEA has completed several studies resulting in recommendations pertaining to collaboration.  She offered to pull those recommendations and review what actions have been taken to implement them and then seek guidance from the co-chairs on how to proceed with those on which little or no action has been taken.  Representative Moberly supported Ms. Seiler’s suggestion and asked her to report back at a future EAARS meeting. 


Representative Moberly asked for approval of the minutes of the October 14, 2008, meeting.  Upon motion by Senator Westwood, seconded by Senator Winters, the minutes were approved by voice vote. 


Representative Moberly asked for approval of OEA’s Special Education report, which was presented at the October 14, 2008, meeting.  Upon motion by Senator Winters, seconded by Senator Westwood, OEA’s Special Education Report was approved by voice vote.


Representative Moberly asked Ms. Seiler to present OEA’s 2008 Annual Report.  Members were provided a copy of the PowerPoint presentation used to explain the report and a hard copy of the report.


Ms. Seiler explained that pursuant to KRS 7.410, OEA is assigned an annual research agenda on specific topics and that the 2008 agenda included a review of special education; the second compendium of state education rankings; an update of the district data profiles; the review of education technology issues; and a study of fees, dues, and supplies.  She explained that the compendium is a consolidation of data released in numerous reports received from various sources in a concise format that is easier to understand.  She said the District Data Profiles is a report that has two pages of information on each district, such as the number of students, assessment data, funding data, tax rates, and other information.  Ms. Seiler offered to provide Representative Firkins a copy of each report OEA completed in the past year. 


Ms. Seiler introduced Bryan Jones, OEA Division Manager for Investigations, who reported on the investigations aspect of the annual report.  Mr. Jones said OEA has statutory authority under KRS 7.410(2)(c) to investigate any allegation of violation of education law; and authority under KRS 160.345(9)(b) to investigate complaints related to school-based decision making.  He reported that OEA’s 2008 caseload as of December 1, 2008, included 69 cases that were opened, 57 that were closed, and 56 cases still pending, which is consistent with previous year activity.


Mr. Jones said one particular issue which continues to be the subject of several complaints is district use of itinerant and district-wide employees.   He said OEA believes a conflict exist between the statute that allows the hiring of itinerant employees and anti-nepotism laws.  He explained that the statutes do not contain a definition for itinerant worker, although when such employees are utilized in a school district, the definition is usually someone who works at multiple schools and the itinerant concept is referred to in the rewards section of the statute.  Mr. Jones said that having an itinerant status employee, such as a speech pathologist, is certainly an acceptable practice if that employee’s services can be utilized at several schools within a district, if one school does not have enough students to require a fulltime person in the position.  He said that school councils and principals generally hire employees pursuant to the authority given them under KRS 160.345(2)(h), but itinerant employees may be hired by superintendents pursuant to KRS 160.370 and 160.390, which is the authority that allows superintendents to hire other district-wide employees, such as directors of pupil personnel and transportation.  He said complaints arise when personnel actions that comply with the provisions of KRS 160.370 and KRS 160.390 conflicts with the nepotism provisions set forth in KRS 160.380(2)(g)1 and 2.  Mr. Jones then provided information about two specific cases that had been investigated by OEA in which nepotism had been alleged even though the employees in each instance were hired pursuant to the district-wide enabling statutes.  In both cases, the itinerant employee was a spouse of a principal in the school system and in one of the cases the principal’s brother also worked in an itinerant position.  He said it was the opinion of OEA that the anti-nepotism laws specifically prohibit a relative or spouse of a principal from employment at the principal’s school unless they were “grandfathered” under the provisions of the nepotism statute.  Mr. Jones said that one of the cases is now at the Educational Professional Standards Board (EPSB) and EPSB has requested an Attorney General’s opinion on the issue.  He said the issue has created enough interest that legislators may be approached about it. 


Representative Moberly thanked OEA staff for the helpful studies they had completed during 2008 and said that it appears that OEA staff and EAARS members agree on many issues.


Senator Westwood asked if any particular violation arises more frequently than others prompting OEA investigations.  Mr. Jones said election cycles generally result in more complaints regarding political activity by school district employees and board member candidates.  Other frequent complaints relate to hiring decisions at the school level, complaints against principals made by SBDM council members about employment decisions, school board member residency issues, and school board financial conflict issues.  Senator Westwood asked if legislative action is needed to clarify any of the statutes.  Ms. Seiler said OEA staff has identified some issues where clarification of statutory language may be helpful and she offered to review previous reports and bring that information back to EAARS members.  She said sometimes statutorily language is vague and in most instances OEA remains consistent with KDE interpretations, but they were not in agreement with KDE on the statutes relating to nepotism and district-wide employees.  Ms. Seiler said another vague statutory provision that needs clarification relates to the time period for renewal of a superintendent’s contract.


Representative Moberly asked if the statutes contain a good definition for itinerant.  Ms. Seiler responded that itinerant is not defined in the statute and is only used in the assessment regulation with regard to dividing rewards among staff in the school including itinerant personnel.  She said itinerant is strictly a practice that may be financially beneficial to a school district when the services of a single employee, such as an art or speech teacher, may be used in several schools; however, when used inappropriately, it provides an avenue to bypass nepotism statutes.  She reiterated that if any principal or other school employee works in more than one building or school, the employee could arguably be considered itinerant and be a district hire rather than hired by the school council.  Representative Moberly asked if they had investigated any cases where a principal was hired as a district-wide employee.  Ms. Seiler responded they did investigate one case where a principal worked at the school nine-tenths of the day but worked the remaining tenth at the district office.  She said she is not sure that the Attorney General’s opinion, which should be available the middle of December, will resolve each issue.


Senator Winters said it appears that a definition of itinerant is needed and asked if OEA has researched what other states have done concerning the issue.  He said the definition may need to include language about the percentage of time an employee would need to spend in one school to be classified as itinerant.  Ms. Seiler said that Kentucky has a unique structure and they probably would find that most states do not have school-based decision making councils that participate in hiring of employees.


Representative Moberly asked Ms. Seiler to present OEA’s 2009 Study Proposal.  Members were provided a copy of the Ms. Seiler’s December 2, 2008, memorandum to EAARS members regarding the study proposals.


Ms. Seiler said that she had put together study topics for consideration and will develop a more detailed study plan for the committee’s approval at the February 2009 meeting.  She said, after observing KDE’s Task Force on Assessment and Accountability, she believes a major study should be done on mathematics especially since the legislature has placed so much emphasis on the subject, including funding initiatives such as the Mathematics Achievement Fund, Teachers’ Professional Growth Fund, the Center for Mathematics, and Senate Bill 130 to improve achievement in this content area.  She explained that the proposed study would be conducted in three separate reviews.  A review will be conducted on math assessment results at the school, district, state and national levels; college and workforce readiness in the area of mathematics; and strategies being used by specific schools and districts that have proven to be successful in increasing math achievement.  A review will be done of intervention strategies that have been or are being implemented based on assessment results at the state, district, and school levels, including the assistance being provided by KDE to failing schools.  The final study will be a comprehensive review of data related to the quality and supply of mathematics teachers, including a review of PRAXIS results and certification requirements and information on the pipeline to supply math teachers needed in the future.  Ms. Seiler said she also had planned to conduct a study of math curriculum and core content but KDE Commissioner Jon Draud announced that he was establishing a similar study group when the Task Force on Assessment and Accountability finishes its work.  She said she plans to monitor KDE’s work since it is critical to OEA’s study plans.


Ms. Seiler said the second study proposal would be a review of leadership training.  She said the statutes are very broad on leadership requirements for superintendents, school board members, site-based decision making councils, the state board, and other educators.  A comparison of program content in relation to statutory goals and/or with the responsibilities for various leadership groups will be completed.  OEA will also collect data on the effectiveness of select programs in addressing the needs of local leaders.


Ms. Seiler said OEA will continue to do the Compendium of State Education Rankings and will update the District Data Profile report. 


Senator Winters said he welcomed the study on the mathematics core content and he would also like to have information not only on the number of math teachers meeting minimum practice requirements for entry level but also information on the range of PRAXIS scores across the board so it can be seen how many are merely minimally qualifying versus significant qualification.  Ms. Seiler responded that OEA will be able to get that information from EPSB.


Representative Moberly commended Ms. Seiler for suggesting the math study and agreed with Senator Winters on the need to follow what the Commissioner’s Task Force is doing with respect to core content.


Ms. Seiler said that OEA completed a Study of Fees, Dues, and Supplies in Kentucky Schools and that Dr. Ken Chilton, Director of Research, and Ms. Sabrina Olds, Research Analyst, would discuss the study.  Members were provided a copy of OEA’s PowerPoint presentation and a copy of a draft of the study.


Dr. Chilton said the objective of the study was to analyze prevalent types and amounts of fees and dues assessed by districts.  He said fees constitute a supplementary source of education funding that is not captured on district annual financial reports and therefore the impact of fee revenue on equity across districts is not known and cannot be studied until better reporting requirements are implemented.  He said the study also includes information on sanctions for unpaid fees, provisions for fee waivers for free and reduced price lunch students, and summarizes the costs of supply requests in schools across the state.


Dr. Chilton explained that all school districts were surveyed and 82% responded.  Once the data was reviewed, 15 schools were purposely selected for site visits based on three different criteria:  schools that submitted quantitative information; schools that typically reported high fee amounts; and schools from different geographic areas.   OEA also reviewed school supply lists from the Websites of 53 randomly chosen districts and districts were asked to provide copies of fee policies and individual school fee schedules for analysis. 


Dr. Chilton explained that KRS 158.108 was the enabling legislation permitting local schools to charge student fees but the statute provides little guidance on the subject of setting fee amounts.  He said guidance provided by an Attorney General’s opinion is that reasonable fees could be charged but what constitutes a reasonable fee remains unanswered in terms of a quantitative amount.  He explained that 702 KAR 3:220 mandates fee waivers for indigent children which are typically defined as students qualifying for free or reduced price lunches but OEA found that some schools are not following the recordkeeping requirements of the regulation.


Dr. Chilton said that federal regulations also exist pertaining to the assessment and collection of fees.  The Family Educational Rights and Privacy Act (FERPA) prohibits the withholding of student records for non-payment of fees and OEA found that a few schools were violating federal law.  Dr. Chilton said that all special needs children are guaranteed a free and appropriate education and therefore fees cannot be charged for items and activities essential to the education of a special needs student, although incidental fees assessed a regular education student for things like clubs, extracurricular activities, and lockers may be charged. 


Dr. Chilton said the National Center for Education Statistics (NCES) has developed guidelines for recording and reporting activity fund accounts in both school activity funds, such as a drama and pep clubs, and district activity funds, such as parking and locker fees.  NCES information shows that a sharp distinction exist between student and district activity funds and accounting for all activity funds is the responsibility of a school district, but Kentucky does not follow NCES guidance.  OEA contacted Virginia, Tennessee, Illinois and Missouri regarding reporting of activity funds and found that those states comply with NCES guidelines.  He said this is important because Kentucky’s failure to report district activity funds to NCES may contribute to lower rankings on national comparisons of education revenues and expenditures and contributes to inaccurate district comparisons within the state for revenue and expenditures.


Dr. Chilton said OEA found that fees and dues are charged in 89% of the districts in the state, accounting for 97% of the students within schools that assess fees; that 80% of districts in the lowest wealth quintile charge fees while 100% of districts in the wealthiest quintile charge fees; and as the number of students eligible for free and reduced price lunches decrease, the likelihood of charging fees increase.  He said charging of dues and fees has equity implications, especially in wealthier districts where substantial funds to supplement school funding is generated through fees.


Dr. Chilton said that OEA used five categories of fees to conduct the study: general fees for school enrollment; course fees for classes; extracurricular fees for music, sports, and other activities; club and organization fees for special interest activities, such as FBLA, Beta Club, and others; and other fees for lockers, parking and textbooks.  They surveyed districts to find out how fees are set and found fees usually reflect the cost of goods or services provided and that most districts base fee amounts on precedence and rarely change them.  OEA also obtained information on fee collection policies and learned that some districts impose sanctions on students to leverage payment, including suspension of parking privileges or disallowing participation in activities such as proms or graduation ceremonies, and a few districts reported they withhold student records.  Dr. Chilton said that withholding of student records is a violation of FERPA.   OEA also found that many districts unable to collect the fees merely waive them.


Dr. Chilton provided information on the five categories of fees and the amounts charged for the different categories in different school levels.  He said they found that middle schools charge a wide range of fees from $5 to $500 for extracurricular activities.  He said high school club fees and course fees were found to be nominal, although a few high schools assessed course fees on more than 20 different courses.  Although the fees varied throughout the state, a hypothetical fee scenario based on data collected showed total fees per child to be approximately $20 for elementary schools, $60 for middle, and $169 for high school, which would vary based on student involvement in clubs, number of courses, and other factors.   


Dr. Chilton provided specific information on the amount of income generated from fees and dues in the fifteen schools where in-depth reviews were conducted.  Yearly fee revenue ranged from a low of $2,600 to a high of $313,000, and some schools had carry forward balances in fee accounts as high as $43,000.  He said the total amount of fee revenue generated coupled with the unexpended balances reinforces OEA’s concerns about what constitutes a reasonable fee and the effect of fees in funding equity.  Dr. Chilton said that language in KDE’s Accounting Procedures for Kentucky School Activity Funds, known as the Redbook, states that money generated by students should be expended on the students who paid the fees and therefore a carryover of funds from fees is a questionable practice.


Dr. Chilton said supply requests varied across grade levels with more frequent use in elementary and middle schools and less use in high schools where supplies are usually included as part of a course fee.  The median price for supplies for elementary students was $31 and for middle school $41, although scientific calculators, which range in price from $25 to over $100, were not included in the middle school cost. 


Ms. Olds explained that Support Educational Excellence in Kentucky (SEEK) is the state funding mechanism for allocating funds to districts and she provided a flow chart on how districts allocate funds to schools under 702 KAR 3:246.  She explained that after excluding district-wide expenditures for transportation, itinerant teachers, extended employment, extra days, and the district’s budgeted contingency amount, the remaining funds, called Section 3 Funds, are allocated to School-Based Decision Making (SBDM) councils.  Section 3 funds are then allocated to Section 4 for certified staff and Section 5 for classified staff based on the board approved staffing formula.  Section 6 funding which is also part of the Section 3 allocation is classified as other minimum allocations.  Ms. Olds said that school councils receive a minimum allocation of 3.5% of the statewide guaranteed based funding level for SEEK based on prior year average daily attendance (ADA) and the funding level for 2008 was $3,822.  Therefore, districts were required to provide schools $133.77 multiplied by the school’s average daily attendance.  Ms. Olds said that, although the regulation was changed in 2001 so that it no longer restricted the use of Section 6 funds for materials, supplies, travel, and equipment, KDE’s SBDM allocation worksheets are still reflecting those use restrictions.  She said after subtracting the allocation amount for Sections 4, 5, and 6 from the Section 3 funds, districts may then allocate any remaining funds under Section 7 in several ways including an amount per prior year ADA, an amount based on pupil needs identified by school councils in school improvement plans, for specific instructional purposes based on student achievement data, or a combination of all of the factors.  She said OEA only concentrated on Sections 6 and 7 funds for the current study and explained that SBDM councils approve Section 6 funds that are to be used by teachers for classroom supplies and materials.


Ms. Olds then discussed the information collected during site visits showing the allocation from Section 6 funds provided to each school, which is then divided among all the teachers within the school.  She provided an example showing that one middle school was provided a 4% allocation from Section 6 funds by their SBDM Council while another SBDM Council gave their middle school teachers 42%.  Ms. Olds said, in revisiting the equity issue, if  the total from a teacher’s Section 6 funds is combined with revenue from fees collected, huge variances in equity are reflected.  She gave another example of two schools that were surveyed having approximately the same number of students with one high school having received $63,000 in Section 6 funds and $313,000 in fees for a total of over $376,000 for instructional needs, but a similar size school with approximately the same number of students received $27,000 from Section 6 funds and $48,000 from student fees for a total of $75,000 for instructional needs.


Ms. Olds said they also found during the site visits that not all schools received Section 7 funding as required by 702 KAR 3:246 even though the amount of district contingency funds made it questionable that no Section 7 funds would have been available.  Ms. Olds reiterated that the regulation requires at least a 2% budgeted contingency amount, although the state Board of Education recommends a reserve of 5%. 


Dr. Chilton said OEA recommends that KDE change its SBDM allocation worksheet instructions regarding the Section 6 funding restriction to comply with 702 KAR 3:246 which does not restrict the use of Section 6 funds.  Also, the large reserves in contingency funds indicates that some districts are not properly allocating Section 7 funds and therefore KDE should review district allocations to ensure that Section 7 funds are distributed according to the regulation.  OEA found that most schools are not adhering to the recordkeeping provisions of 702 KAR 3:220 which require that a fee waiver form be provided to parents of free and reduced price lunch students.  Even though waivers were being provided, districts still need to keep a record of the number of fee waivers requested and granted as set out in the regulation.  OEA also found that the KDE Redbook does not conform to NCES guidelines regarding activity fund reporting on annual financial reports.  Dr. Chilton said that if NCES guidelines are implemented, a more accurate national ranking of education revenues and expenditures would be available for Kentucky and a more accurate analysis of funding equity across the state could be done.  Dr. Chilton said that some districts are withholding student academic records for non-payment of fees or fee debt in violation of FERPA and therefore the Redbook needs to be revised to reflect the FERPA restrictions.


Dr. Chilton said some school leaders and administrators voiced concern about the reporting requirements of outside organizations such as booster clubs.  He said that although OEA did not do an in-depth review of those accounts it is their recommendation that KDE review other states reporting requirements for booster clubs to determine best practices for managing them which could be incorporated into the Redbook to provide guidance for school and district leaders.  With regard to carryover balances and the high amounts of fee revenue generated at some schools, OEA recommends that districts annually review all assessed fees to ensure that the fees are reasonable, are being used on the students who pay them, and are for the purpose collected.  Dr. Chilton said that KDE advised them that Recommendation 3.6 in the draft report was in error and the report will be updated to reflect a change.


Representative Moberly thanked OEA staff for the very thorough report and asked if KDE has had an opportunity to respond to any of the recommendations.  Mr. Frank Rasche, Legislative Liaison for KDE, responded that they have not yet had the opportunity to do a complete review and provide a formal response.  Representative Moberly said he would like to receive KDE’s response to the report perhaps at the next meeting of the committee.


Representative Moberly asked Kevin Brown, General Counsel, Kentucky Department of Education, to provide information on the three regulations for consideration by the committee.


Mr. Brown explained that 703 KAR 5:070 establishes procedures for the inclusion of special student population in the state assessment and accountability programs and incorporates by reference a document called the “Inclusion of Special Populations,” which is the document being amended.  He said the proposed amendments update terminology consistent with No Child Left Behind, IDEA, and Section 504 of the Rehabilitation Act, and also clarify language for ease of reading by practitioners and better use of terminology.  He said 703 KAR 5:080 contains the administration code for Kentucky’s educational assessment program and incorporates a document by reference which provides guidance to schools for the implementation of the testing system and all the rules related thereto.  He said some of the amendments to the regulation were necessitated by NCLB and also provide for easier reading.  Mr. Brown said that 703 KAR 5:140 includes the requirements for school and district report cards which schools, districts, and KDE must follow for publishing school and district report cards.  He said the most significant amendment to the regulation related to making the reports available on KDE and district Websites or made available to parents in hard copy upon request. 


Representative Firkins made a motion that the technical and editorial changes recommended by agency staff to 703 KAR 5:070 be incorporated into the regulation.  Senator Winters seconded the motion and the motion was approved by voice vote.


Representative Moberly said that the Kentucky Education Association sent a letter to the committee with an objection to provisions in 703 KAR 5:080 relating to the requirement to remove visuals used for instruction that are displayed on classroom walls during assessments.  Ms. Sims said she had not seen the letter but was aware of their concern.  She said visuals are posters or other types of instruction material that are posted on a classroom wall and the regulatory requirement states that materials could be posted for instruction but were not to be posted during assessment.  She said the provision has been in the regulation since 1999 but enforcement has eroded somewhat over the years, so changes in the regulation simply clarify the original intent of the 1999 requirement.  She said it would certainly be inappropriate for educators to display test answers on the wall rather than allowing the assessment to measure retention in the student’s mind and there must be standardization throughout the school system if schools are to be held accountable for test results.  Ms. Sims related that several comments both pro and con were received during the comment period.  She also said that all of the national assessments, including ACT, PLAN, EXPLORE, and NAEP, require that content material be removed or covered during testing.  She explained that the regulation establishes a single set of rules for all assessments throughout the education system in Kentucky.


Ms. Seiler said that the OEA staff also believes the regulation needs to be clarified since her office had received complaints about the presence of visuals and complaints about having to remove the visuals.  


Senator Winters said he had been frequently approached during the last few days about this subject.  He asked if he understood correctly that the teacher is responsible for making the judgment call on what needed to be removed from the classroom wall.  Ms. Sims responded that it is not only the teacher’s decision but school leadership as well.  She said that KDE will be providing specific guidance in a training video that can be shared statewide.  She said three questions need to be asked about the material.  Does the visual contain content; does it contain strategies to help a student respond; or has it been used in instruction; and if the answer is yes to any of those questions, KDE recommends that the poster/item be removed or covered.  Ms. Sims said that 46 other states have requirements that instructional items be removed or covered during assessments and 2 other states had more vague language, including Florida where certain posters may remain during testing.  Senator Winters asked if the visuals are commercial posters or have been prepared by school staff to which Ms. Sims responded that it varies although it appears that many are generated by students and/or teachers.  Senator Winters asked if widely used items, such as the Periodic Table of Elements in a science classroom, had to be removed.  Ms. Sims responded that the Periodic Table is a great example of a poster that may remain and is provided as a specific example in the regulation, based on ACT guidelines, which allow it to remain during assessments.  Ms. Sims reiterated that posters are only to be removed or covered during administration of assessments, including the ACT, PLAN, EXPLORE, and Kentucky Core Content Test (KCCT).  Senator Winters asked if the items referred to in the regulation are things teachers have posted just before test period.  Ms. Sims said the time of posting the materials may vary.  She the regulation contains requirements to prohibit a test from being viewed prior to administration and therefore information on posters may or may not be part of the test items.


Representative Moberly suggested that the technical amendments recommended by LRC staff to 703 KAR 5:080 and agreed to by KDE be favorably considered.  Senator Westwood moved that the technical changes be accepted.  Senator Winters seconded the motion, which was approved by voice vote.


Representative Moberly said that LRC staff also recommended technical changes to 703 KAR 5:140.  Senator Winters moved that the technical changes to the regulation be incorporated into the regulation.  Representative Firkins seconded the motion and the motion carried.


Senator Winters asked for additional information on the person or persons responsible for deciding which items may remain on classroom walls during testing.  Ms. Sims said the person primarily responsible for administration of assessments is the district assessment coordinator and KDE staff work closely with those coordinators and provide them in-depth training.  They, in turn, are responsible for working with school leaders who schedule tests and are ultimately responsible for ensuring that all of the teaching staff maintains the integrity of the assessment system.  Ms. Sims said the regulation tightens the language significantly and provides clarity and standardization.   Senator Winters asked what necessitated the change and Ms. Sims said the department had received some complaints and requests for clarification so the new regulatory language is intended to strengthen the requirements and provide clarity.  Also, since EPAS is now part of the CATS assessment, the national testing agency has very specific rules regarding displays. 


There being no further business to discuss, Representative Moberly adjourned the meeting at 3:00 P.M.