Analysis prepared by the Department of Regulation and Licensing
Explanation of agency authority: Section
440.04 (7), Stats., provides that the secretary of the Department of Regulation and Licensing, “
…provide examination development, administration, research and evaluation services as required." The general duties and powers of the department, s.
440.03 (1), Stats., provides that, “The department may promulgate rules defining uniform procedures to be used by the department
…for receiving, filing and investigating complaints, for commencing disciplinary proceedings and for conducting hearings." In promulgating rules concerning cheating on examinations or breach of examination security, the department seeks to codify its practices and policies concerning these matters.
Plain language analysis: The Department of Regulation and Licensing, its attached examining boards and affiliated credentialing boards currently administer over 25,000 examinations per year. Cheating and maintaining examination security are a growing problem. These rule changes provide uniform procedures for providing due process while codifying existing practices and policies in the handling and adjudication of cases of cheating or breaches of examination security.
Current Wisconsin credentialing board rules vary in specificity and are not updated to deal with current technology. The department finds it necessary to create a uniform standard and procedure for dealing with the instances of cheating that would combine best practices into one regulation, and would, in addition, avoid the need to update and promulgate separate identical rules for each credentialing authority.
SECTION 1. Definitions are created for the terms “breach of examination security" and “cheating on an examination." The definition of “breach of examination security" is meant to address the intentional removal from an examination site and/or theft of examination, or theft of examination questions either for personal use or for profit. It should be noted that the development of such questions is an expensive activity and a breach of the security of the examination questions necessitates developing new questions. The definition of “cheating on an examination" attempts to capture the numerous variants of cheating that have been experienced by examination specialists.
SECTION 2. The definition of “denial review proceeding" is broadened to include use of class 1 proceedings to determine whether an individual has cheated on an examination or there has been a breach of examination security.
SECTION 3. The definition of “office of examinations" is created to indicate that the reference is to the Department of Regulation and Licensing's office of examinations.
SECTION 4. The title of s.
RL 1.04 is amended to indicate that the consequences of cheating or a breach of examination security are treated therein.
SECTION 5. The range of consequences which may be imposed is indicated. Notice that distribution of information concerning the imposition of consequences for cheating or for breach of examination security is indicated. Notice that facilitation by a barber or cosmetology school or instructor in cheating or breach of security of an examination is indicated.
SECTION 6. The title of s.
RL 1.05 is amended to indicate that the consequences of cheating or a breach of examination security are treated therein.
SECTION 7. Section
RL 1.05 (3) is created to provide for notice to an individual following a determination by the office of examinations that there is probable cause to believe that the individual has cheated on an examination or breached the security of an examination.
SECTION 8. The Request for Hearing section at s.
RL 1.07 is amended to include requests after a determination that an individual has cheated on or breached the security of an examination.
SECTION 9. The Review of Request for Hearing section at s.
RL 1.08 (1) is amended to include Requests for Hearing based on determinations of cheating or a breach of examination security. Section
RL 1.08 (4) is amended to indicate that the office of examinations has the burden of proof by satisfactory evidence in class 1 hearings concerning cheating on or breach of security of examinations.
SECTION 10. Section
RL 1.09 (5) is amended to include the office of examinations in this subsection which indicates what evidence may be presented and considered at hearing.
SECTION 11. Section
RL 1.09 (5m) instructs the hearing presiding officer to insure that the examination security is maintained during the proceedings.
SECTION 12. Section
RL 1.11 is amended to indicate that an individual's failure to appear at their hearing constitutes a waiver of the right to appeal the decision of the credentialing authority. Section
RL 1.12 is amended to allow for withdrawal of a request for hearing on a determination of cheating on or breach of the security of an examination.
Summary of factual data and analytical methodologies: Cheating on licensing examinations is an ongoing and significant problem. Instances of cheating have increased in recent years with the advent of new technology.
Three well-publicized recent national examples are: The Federation of State Boards of Physical Therapy sued 4 candidates for trading more than 100 questions from the national licensing examination via an Internet chat room. The National Association of Boards of Pharmacy suspended its Educational Equivalency Examination for seven months after determining that 15 foreign candidates traded 200 national examination questions on 2 web sites in Korea and India. The National Board of Podiatric Medical Examiners refused to validate scores from four U.S. schools after determining that hundreds of students traded examination material by email and study guides.
Numbers of instances have been increasing at the state credentialing level, as well. In the twenty years from 1981 to 2001, there were 6 identified instances of cheating on record at the Department. There were about 15,000 administrations per year at the start of that period, gradually increasing to about 25,000 administrations today. In the four years since 2001, there have been 8 instances of cheating identified on state credentialing examinations. These instances include instances of identical answer sheets, missing booklets and copying questions to remove them from the room.
The increasing culture of cheating has been noted in the recent book by Gregory Cizek, Cheating on Tests, c 1999, Lawrence Erlbaum and Associates, and numerous articles such as, “New Calculators Force NCEES to Tighten Exam Security Policy," Engineering Times, Feb 2004; “Exam Security and High-Tech Cheating", The Bar Examiner, vol 67, no 3, c 1998. The online publication, “Cheating in the News" publishes five to ten recent articles each month about cheating around the world, often on state assessments of high school performance or college entrance examinations.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: The department finds that this rule has no significant fiscal effect on the private sector.
Fiscal Estimate
The department estimates the right to appeal may be used to require one hearing a year. The projected value of the staff time to conduct one hearing of this type is $300.
Effect on Small Business
Pursuant to s.
227.114 (1), Stats., these proposed rules will have no significant economic impact on a substantial number of small businesses. The Department's Small Business Regulatory Review Coordinator may be contacted by email at
christopher.klein@drl.state.wi.us, or by calling (608) 266-8608.
Agency Contact Person
Pamela Haack, Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, 1400 East Washington Avenue, Madison, Wisconsin 53708-8935. Email
pamela.haack@drl.state.wi.us.
Place where comments are to be submitted and deadline for submission:
Comments may be submitted to Pamela Haack, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708-8935; email
pamela.haack@drl.state.wi.us. Comments must be received on or before July 22, 2005 to be included in the record of rule-making proceedings.
TEXT OF RULE
SECTION 1. RL 1.03 (1g) and (1r) are created to read:
RL 1.03 (1g) “Breach of examination security" means any of the following:
(a) Removing from the examination room any examination materials without authorization.
(b) Reproducing, or assisting a person in reproducing, any portion of the credentialing examination by any means and without authorization.
(c) Paying a person to take the credentialing examination to discover the content of any portion of the credentialing examination.
(d) Obtaining examination questions or other examination materials, except by specific authorization before, during, or after an examination.
(e) Using, or purporting to use, improperly obtained examination questions or materials to instruct or prepare an applicant for the credentialing examination.
(f) Selling, distributing, buying, receiving or having unauthorized possession of any portion of a future, current, or previously administered credentialing examination.
(1r) “Cheating on an examination" includes but is not limited to:
(a) Communicating with other persons inside or outside of the examination room concerning examination content using any means of communication while the examination is being administered.
(b) Copying the answers of another applicant, or permitting answers to be copied by another applicant.
(c) Substituting another person for the applicant who writes one or more of the examination answers or papers in the place of the applicant.
(d) Referring to “crib notes," textbooks or other unauthorized information sources inside or outside the examination room while the examination is being administered.
(e) Disclosing the nature or content of any examination question or answer to another person prior to, during, or subsequent to the conclusion of the examination.
(f) Removing or attempting to remove any examination materials, notes or facsimiles of examination content such as photo, audiovisual, or electronic records from the examination room.
(g) Violating rules of conduct of the examination.
SECTION 2. RL 1.03 (4) is amended to read:
RL 1.03 (4) “Denial review proceeding" means a class 1 proceeding as defined in s.
227.01 (3) (a), Stats., in which a credentialing authority reviews
either a decision to deny a completed application for a credential
or a determination of cheating on an examination or breach of examination security.
SECTION 3. RL 1.03 (7) is created to read:
RL 1.03 (7). “Office of examinations" means the office of examinations in the department.
SECTION 4. RL 1.04 (title) is amended to read:
RL 1.04 (title) Examination failure: retake and hearing, consequences of cheating on an examination or breach of examination security.
SECTION 5. RL 1.04 (3) is created to read:
RL 1.04 (3)
Consequences imposed for cheating on an examination or for committing a breach of examination security shall be related to the seriousness of the offense and may include, but not be limited to; denial of grades; entering of a failing grade on all examinations in which cheating occurred; restrictions on reexamination; or denial of licensure. If more than one applicant is involved in a connected offense of cheating on an examination or breach of examination security, each applicant knowingly involved is subject to the consequences in this section.
(a) Restrictions on reexamination may include denying the applicant the right to retake the examination for a specified period of time, or the imposition of a permanent bar on reexamination.
(b) The department may provide information on the consequences imposed upon an applicant to other jurisdictions where the applicant may apply for credentialing or examination.
(c) If an approved or credentialed school or instructor is found to have facilitated actions constituting cheating on an examination or breach of examination security, the school or instructor may be subject to disciplinary action or revocation of approval.
SECTION 6. RL 1.05 (title) is amended to read:
RL 1.05 (title) Notice of intent to deny and, notice of denial and notice of cheating on an examination or breach of examination security.
SECTION 7. RL 1.05 (3) is created to read:
RL 1.05 (3) NOTICE OF CHEATING ON AN EXAMINATION OR BREACH OF EXAMINATION SECURITY. If after an investigation the office of examinations determines there is probable cause to believe that an applicant has cheated on an examination or breached examination security and the office of examinations and the applicant cannot agree upon a consequence acceptable to the credentialing authority, the office of examinations shall issue a notice of cheating on an examination or breach of examination security. The notice shall:
(a) Include the name and address of the applicant, the examination involved, and a statement identifying with reasonable particularity the grounds for the conclusion that the applicant has cheated on an examination or breached examination security.
(b) Be mailed to the applicant at the address provided in the materials submitted by the applicant when applying to take the examination. Notice is effective upon mailing.
SECTION 8. RL 1.07 (intro.) and (3) are amended to read:
RL 1.07 Request for hearing. (intro.) An applicant may request a hearing within 45 calendar days after the mailing of a notice of denial by the credentialing authority or notice of cheating on an examination or breach of examination security by the office of examinations. The request shall be in writing and set forth all of the following:
(3) A specific description of the mistake in fact or law that constitutes reasonable grounds for reversing the decision to deny the application for a credential or for reversing a determination of cheating on an examination or a determination of breach of examination security. If the applicant asserts that a mistake in fact was made, the request shall include a concise statement of the essential facts that the applicant intends to prove at the hearing. If the applicant asserts a mistake in law was made, the request shall include a statement of the law upon which the applicant relies.
SECTION 9. RL 1.08 (1) and (4) are amended to read:
RL 1.08 (1) REVIEW OF REQUEST FOR HEARING. Within 45 calendar days of receipt of a request for hearing, the credentialing authority or its designee shall grant or deny the request for a hearing on a denial of a credential
or on a determination of cheating on an examination or a determination of breach of examination security. A request shall be granted if requirements in s.
RL 1.07 are met, and the credentialing authority or its designee shall notify the applicant of the time, place and nature of the hearing. If the requirements in s.
RL 1.07 are not met, a hearing shall be denied, and the credentialing authority or its designee shall inform the applicant in writing of the reason for denial. For purposes of a petition for review under s.
227.52, Stats., a request is denied if a response to a request for hearing is not issued within 45 calendar days of its receipt by the credentialing authority.
(4) BURDEN OF PROOF. The applicant has the burden of proof to show by evidence satisfactory to the credentialing authority that the applicant meets the eligibility requirements set by law for the credential. The office of examinations has the burden of proof to show by satisfactory evidence that the applicant cheated on an examination or breached examination security.
SECTION 10. RL 1.09 (5) is amended to read:
RL 1.09 (5) EVIDENCE. The credentialing authority, the office of examinations and the applicant shall have the right to appear in person or by counsel, to call, examine and cross-examine witnesses and to introduce evidence into the record. If the applicant submits evidence of eligibility for a credential which was not submitted to the credentialing authority prior to denial of the application, the presiding officer may request the credentialing authority to reconsider the application and the evidence of eligibility not previously considered.
SECTION 11. RL 1.09 (5m) is created to read:
RL 1.09 (5m) CONFIDENTIALITY OF EXAMINATION RECORDS. The presiding officer shall take appropriate precautions to preserve examination security in conjunction with the conduct of a hearing held pursuant to this section.
SECTION 12. RL 1.11 and 1.12 are amended to read:
RL 1.11 Failure to appear. In the event that neither the applicant nor his or her representative appears at the time and place designated for the hearing, the credentialing authority may take action based upon the record as submitted. By failing to appear, an applicant waives any right to appeal before the action taken by the credentialing authority which denied the license.
RL 1.12 Withdrawal of request. A request for hearing may be withdrawn at any time. Upon receipt of a request for withdrawal, the credentialing authority shall issue an order affirming the withdrawal of a request for hearing on the denial or on the determination of cheating on an examination or determination of breach of examination security.
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
85.16 (1) and
348.07 (4), Stats., interpreting s.
348.07 (4), Stats., the Department of Transportation will hold a public hearing at the following location to consider the amendment of chapter Trans 276, Wisconsin Administrative Code, relating to allowing the operation of double bottoms and certain other vehicles on certain specified highways:
July 15, 2005 at 10:00 a.m.
Transportation Southeast Region
141 NW Barstow Street, Room 338A-B
Waukesha, WI
(Parking is available for persons with disabilities)
