Language Assistance 
In addition to the following Q&As, please see the following resources for guidance related to ATB tes
ts:
- Final regulations – published 10/29/2010
- GEN-11-08 – published 3/25/2011
- GEN-12-01 – published 1/18/2012
- GEN-12-09 – published 6/28/2012
- Ability to Benefit Approved State Process Webinar Slides
ATB-Q1: Under the new regulations effective July 1, 2011, students who are non-native speakers in English, and who are enrolled in a program taught in their native language, must pass an independently administered examination that has been approved under §668.148(a)(1). Until there is a Spanish language test approved by the Department for ATB determinations, how should institutions implement these new provisions?
ATB-A1: Because of the time necessary for test publishers to submit new ATB tests for approval by the Department under the new regulations, the Department does not expect there to be an approved Spanish-language test by July 1, 2011. As Spanish-language tests are submitted for approval, the Department will take action to review them and render approval decisions within a reasonable amount of time after the July 1, 2011 effective date. Until a Spanish-language test is approved, the Department will not enforce the new regulatory provision in §668.148(a)(1), and institutions may continue to use tests that would satisfy the standard in the current provisions (those in effect prior to July 1, 2011) under §668.149 to assess the ability-to-benefit of Spanish-speaking students.
The current regulations under §668.149 provide that, if there is no test reasonably available for students whose native language is not English, and who are not fluent in English, any test in the student’s native language may be considered to be an approved examination as long as the test has not been previously rejected by the Department, the test measures basic verbal and quantitative skills at the secondary school level, and the passing scores and method of determining the passing scores are fully documented. [Guidance issued 3/25/2011]
The full text of current §668.149 reads as follows:
§ 668.149 Special provisions for the approval of assessment procedures for special populations for whom no tests are reasonably available. If no test is reasonably available for persons with disabilities or students whose native language is not English and who are not fluent in English, so that no test can be approved under §§ 668.146 or 668.148 for these students, the following procedures apply:
(a) Persons with disabilities. (1) The Secretary considers a modified test or testing procedure, or instrument that has been scientifically developed specifically for the purpose of evaluating the ability to benefit from postsecondary training or education of disabled students to be an approved test for purposes of this subpart provided that the testing procedure or instrument measures both basic verbal and quantitative skills at the secondary school level. (2) The Secretary considers the passing scores for these testing procedures or instruments to be those recommended by the test developer, provided that the test administrator—
(i) Uses those procedures or instruments;
(ii) Maintains appropriate documentation, including a description of the procedures or instruments, their content domains, technical properties, and scoring procedures; and
(iii) Observes recommended passing scores.
(b) Students whose native language is not English. The Secretary considers a test in a student’s native language for a student whose native language is not English to be an approved test under this subpart if—
(1) The Secretary has not approved any test in that native language;
(2) The test was not previously rejected for approval by the Secretary;
(3) The test measures both basic verbal and quantitative skills at the secondary school level; and
(4) The passing scores and the methods for determining the passing scores are fully documented.
(Approved by the Office of Management and Budget under control number 1840–0627)
(Authority: 20 U.S.C. 1091(d))
[60 FR 61841, Dec. 1, 1995, as amended at 61 FR 31035, June 19, 1996]
