(1) Step 1. Administration of the home language questionnaire by qualified personnel as defined in section 154-2.2(u) of this Subpart to parents or persons in parental relation to determine if a language other than English is spoken at home.

(2) Step 2. An individual interview with the student by qualified personnel in English and the student's home language, and a review of the student's abilities or work samples in reading and writing in English and the home language and math that are collected or generated during the interview, and for students reentering the New York State public school system, a review of prior experience in home language and/or English instruction, to determine if the student shall be administered the statewide English language proficiency identification assessment and to determine the student's grade level of literacy in their home language and grade level in math. The individual interview is waived in circumstances when the school district can document that video conferencing was used to remotely conduct an individual interview during a school closure ordered pursuant to an Executive Order(s) of the governor pursuant to a State of emergency for the COVID-19 crisis. In such cases, qualified personnel as defined by Part 154-2.2(q) will review the previously completed Home Language Questionnaire with the parent or person in parental relation.

(3) Step 3. Students who have a disability, follow a process, as specified in Subpart 154-3 of this Part, to determine whether the student shall take the statewide English language proficiency identification assessment and whether the student should be identified as an English language learner.

(4) Step 4. Administration of a statewide English language proficiency identification assessment as prescribed by the commissioner, except for such students defined in paragraph (3) of this subdivision for whom it has determined that such assessment is not appropriate.

(5) If the student receives a score below a State designated level of proficiency established by the commissioner on the Statewide English language proficiency identification assessment, or in the case of a student with a disability, the process defined in Subpart 154-3 of this Part has led to a determination that the student shall be initially identified as an English language learner, within five school days of such identification, the school district must provide the student, if the student is 18 years of age or older, or the student's parent or person in parental relation written notice of such identification determination the right to seek review of such identification determination pursuant to subdivision (b) of this section. Day(s) during a school closure ordered pursuant to an Executive Order(s) of the Governor pursuant to a State of emergency for the COVID-19 crisis and day(s) where a school or a local educational agency central office, where such office is responsible for implementing and completing the English Language Learners (ELLs) identification process, temporarily shifted from in-person or hybrid instruction to full remote instruction due to an increase in COVID-19 cases in a school or surrounding geographic area shall not count towards the five-day timeline prescribed in this paragraph.

(6) If the student is identified as an English language learner, and step 2 in paragraph (2) of this subdivision indicates that the student has attended schools in the United States (the 50 states and the District of Columbia) for less than 12 months and is two or more years below grade level in literacy in their home language and/or math due to inconsistent or interrupted schooling prior to arrival in the United States (the 50 states and the District of Columbia), the student shall also be identified as a student with inconsistent/interrupted formal education.

(7) The identification process shall commence no later than the date of the student's initial enrollment or reentry in a New York State school district, except that the statewide English language proficiency identification assessment may not be administered before July 15th for students in grades 1-12 enrolling for the start of classes in September. For students enrolling in kindergarten for the start of classes in September, the statewide English language proficiency identification assessment may not be administered before June 1st.

(8) Districts must complete all steps of the identification process in this section prior to the student's final placement in a school. A student shall be provisionally placed in a school until the identification process is completed.

(9) If a student is identified as an English language learner with a disability pursuant to paragraph (3) of this subdivision, each school district shall ensure that:

(10)

(1) A school district shall initiate a review of a determination made in the initial or reentry identification process upon receipt within the first 45 school days of a student's initial or reentry determination of a written request in such form as may be prescribed by the commissioner from any of the following:

(2) Upon receipt of a written request, the school principal and qualified personnel, as defined by section 154-2.2(u) of this Subpart, shall:

(3) The review shall be completed and a determination made within 10 school days of the district's receipt of a written request, unless consultation with the CSE is required, in which case a determination shall be made within 20 school days of the district's or the charter school's receipt of a written request.

(4) If, upon review, the school principal determines, based on the recommendation of qualified personnel, that the student designation should change, the principal shall inform the parent or person in 'parental relation of this recommendation, in the language or mode of communication the parent or other person in parental relation best understands. Upon receipt from the parent or person in parental relation of a signed acknowledgment letter in the language the parent or person in parental relation best understands, the principal shall submit for review and approval a recommendation to change the student's designation to the superintendent or his or her designee. A recommendation to change the student's designation shall not be made by the principal if the parent or person in parental relation, or student if the student is 18 years of age or older, does not submit a signed letter of consent in the language the parent or person in parental relation, or student if the student is 18 years of age or older, best understands.

(5) If the school principal recommends that the student designation should change and the parent or person in parental relation consents, the superintendent, or his or her designee, shall review the school principal's recommendation and make a final determination to accept or reject the principal's recommendation within 10 days of receiving the school principal's recommendation. If the superintendent, or his or her designee, accepts the principal's recommendation the district must inform the commissioner and the school principal in writing, and the student, if the student is 18 years of age or older, or the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands.

(6) If the superintendent, or his or her designee, accepts a recommendation determining whether or not an English language learner's designation should change, the school principal, no less than six months and no later than one school year following that determination shall review the decision to ensure that the student's academic progress has not been adversely affected by the determination. If the principal, based on the recommendation of qualified personnel and the written consent of the parent or person in parental relation, believes that the student may have been adversely affected by the determination, the school principal shall provide additional support services to the student as defined in subdivision (j) of this section and may reverse the determination no less than six months and no later than one year from such determination. A reversal of a determination must be made in consultation with the superintendent or his or her designee. If a reversal of a determination is made, the superintendent, or his or her designee, must inform the commissioner and the school principal in writing, and the student, if the student is 18 years of age or older, or the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands.

(7) If a determination is made pursuant to paragraphs (1) through (5) of this subdivision that a student is not an English language learner, the designation of such shall be changed in the student's cumulative record and the student shall not be reported as an English language learner. If a subsequent decision is made pursuant to paragraph (6) of this subdivision to reverse a determination that a student is not an English language learner, the student shall be re-designated as an English language learner in the student's cumulative record and the student shall be reported as an English language learner.

(8) Any day(s) during a school closure ordered pursuant to an Executive Order(s) of the Governor pursuant to a State of emergency for the COVID-19 crisis and day(s) where a school or a local educational agency central office, where such office is responsible for implementing and completing the English Language Learners (ELLs) identification process, temporarily shifted from in-person or hybrid instruction to full remote instruction due to an increase in COVID-19 cases in a school or surrounding geographic area shall not count towards the 45 school day timeline prescribed in paragraph (1) of this subdivision, 10 and 20 school day timelines prescribed in paragraph (3) of this subdivision, or the 10 day timeline prescribed in paragraph (5) of this subdivision.

(9) Notwithstanding paragraph (8) of this subdivision, due to the COVID-19 crisis for the 2020-2021 school year, the 45 day school timeline prescribed in paragraph (1) of this subdivision shall be extended to 65 days from the beginning of the 2020-2021 school year for any student that was either newly enrolled during the COVID-19 closures in the 2019-2020 school year, Summer 2020 or within the first 20 days of the 2020-2021 school year.

(1) Each school district shall maintain in the student's cumulative record information regarding the parent's or person in parental relation's preferred language or mode of communication, as indicated on the home language questionnaire.

(2) Each school district shall maintain all documents related to the initial identification and any subsequent review process, including the home language questionnaire, English language proficiency identification assessment results, and any other records generated as part of the identification process and review process as defined in subdivisions (a) and (b) of this section. Such information shall be maintained as part of the student's cumulative record.

(1) Annual estimate of enrollment of English language learners by school and grade. Each school district shall, by such date before the end of the current school year as determined by the commissioner, and in such format as determined by the commissioner, annually prepare and submit to the commissioner and make widely available through public means, which may include, but not be limited to posting on the Internet, distribution through the media, and distribution through public agencies, an estimate of the number of English language learners who are expected to be enrolled in each school and in each grade within each school, as well as the number of English language learners in the district who speak the same home language, in the following school year. Such annual estimate shall be based on the previous three years of enrollment data for English language learners by school, grade and home language.

(2) Each school district in which the sum of each school's annual estimate of enrollment of English language learners equals 20 or more English language learners of the same grade level, all of whom have the same home language that is other than English, shall provide a sufficient number of bilingual education programs in the district in the following school year, such that there are bilingual education programs available in the district for at least 70 percent of the estimated English language learners students who share the same home language other than English and grade level districtwide.

(3) Each school district shall place any new bilingual education programs required by paragraph (2) of this subdivision in a school that has not been identified as a school under registration review or as a focus or priority school pursuant to Part 100 of this Title, if such school exists in the district. If a school that has not been so identified does not exist or does not have the physical space for the new bilingual education program, the district must submit a justification, in a form and according to such timeline as prescribed by the commissioner, and receive approval from the commissioner to place the new bilingual education program(s) in a focus school or in a priority school if no focus school exists in the district. In the case of New York City, in the event that a priority school is the only option for placement of a new bilingual education program, the district shall open the program but give parents or persons in parental relation the option to transfer their child to a bilingual education program in a school that has not been identified as a school under registration review or as a focus or priority school pursuant to Part 100 of this Title in a neighboring community school district. In all such cases where the opportunity to transfer to another school is offered, the student shall be provided transportation in accordance with Education Law section 3635 and/or district policy as applicable.

(4) Each school district that has an annual estimate of enrollment of English language learners in which 20 or more English language learners of the same grade level assigned to a school, all of whom have the same home language that is other than English, shall provide such students with a bilingual education program at that school in the following school year.

(5) Each English language learner shall be provided the opportunity to transfer to another school in the district that operates a bilingual education program that serves the same grade level and language, if such bilingual education program does not exist in the school in which the student is enrolled. In all such cases where the opportunity to transfer to another school is offered, the student shall be provided transportation in accordance with Education Law section 3635 and/or district policy as applicable.

(6) A district may seek permission on an annual basis from the commissioner for a one-year exemption from providing bilingual education programs required by paragraph (2) of this subdivision in languages that are the home language of less than five percent of the statewide English language learner population. A district may seek permission for such exemption for no more than five consecutive school years, if the district demonstrates that:

(7) In order to qualify for a one-year exemption from providing such bilingual education program in languages that are spoken by less than five percent of the statewide English language learner population, a district must submit, in such format and according to such timeline, as may be prescribed by the commissioner, for approval:

(8) Upon a finding that the district has made adequate efforts to recruit bilingual teachers, has developed a plan to intensify its recruitment efforts, and will implement satisfactory alternate home language supports for students for whom the district would otherwise be required to provide a bilingual education program, the commissioner may grant a one-year exemption to the school district from the requirement to provide a bilingual education program.

(9) An English as a new language program must be provided to all English language learners who are not served by a bilingual education program.

(10) In instances where the commissioner has determined that a school district has demonstrated a pattern in its annual estimate of enrollment of English language learners of consistent underestimation of enrollment at the district or school level of English language learners in the same grade and who spoke the same home language, the commissioner may direct the school district to establish bilingual education programs as the commissioner deems necessary to ensure that appropriate opportunities to participate in bilingual education programs are provided to English language learners.

(1) The parent or other person in parental relation of a student designated as an English language learner who is a new entrant, as defined in section 117.2(d) of this Title, shall be provided a high quality orientation session on the State standards, assessments, and school expectations for English language learners, as well as the program goals and requirements for bilingual education and English as a new language programs, as prescribed by the commissioner. Such orientation shall occur prior to a student's enrollment in a program provided that a student shall not be withheld from timely program placement if a parent or person in parental relation does not attend an orientation session. Such orientation shall be provided in a language or mode of communication that the parent or person in parental relation best understands.

(2) Following such orientation, the parent or other person in parental relation of a student designated as an English language learner shall be notified, in English and the language or mode of communication the parent or other person in parental relation best understands, that, where available, bilingual education shall be the default program. Such notice must also indicate that a parent or person in parental relation may direct that his or her child be placed in an English as a new language program if the parent or person in parental relation does not want his or her child to be enrolled in a bilingual education program.

(3) Upon notification of the parent or person in parental relation, the school district shall provide the parent or person in parental relation 10 school days to sign and return to the district a statement that the parent or person in parental relation is either in agreement with the child being placed in a Bilingual Education program or directs the district to place the child in an English as a New Language program. If a parent or person in parental relation does not return the signed notification form within 10 school days of receiving the notice, the student shall be placed in a Bilingual Education program if there is one in the school that serves the grade and home language spoken by the student or in an English as a New Language program if the school is not required to provide a Bilingual Education program. In the event that a parent or person in parental relation does not return the signed notification form within 10 school days, the parent or person in parental relation shall retain the right to make a final decision regarding the placement of their child in a Bilingual Education or English as a New Language program. Day(s) during a school closure ordered pursuant to an Executive Order(s) of the Governor pursuant to a State of emergency for the COVID-19 crisis and day(s) where a school or a local educational agency central office, where such office is responsible for implementing and completing the English Language Learners (ELLs) identification process, temporarily shifted from in-person or hybrid instruction to full remote instruction due to an increase in COVID-19 cases in a school or surrounding geographic area shall not count towards the 10-day timeline prescribed in this paragraph.

(4) If a student is placed in an English as a new language program because the parent or person in parental relation requested that the student not be placed in a bilingual education program or because the parent or person in parental relation did not make a choice and the school was not required to open a bilingual education program pursuant to paragraph (d)(4) of this section, the parents or persons in parental relation shall be notified, in a language or mode of communication they best understand, that they retain the right to transfer their child to a bilingual education program and that transportation will be provided in accordance with Education Law section 3635 and/or district policy as applicable.

(5) School districts shall individually meet with the parents or persons in parental relation of English language learners at least once a year, in addition to parent-teacher conferences, quarterly progress meetings or other such scheduled meetings provided for parents or persons in parental relation of all students, to discuss the goals of the program, their child's language development progress, their child's English language proficiency assessment results, and language development needs in all content areas. This additional meeting shall include all school staff necessary to sufficiently inform the parents or persons in parental relation about the child's language development in all content areas in English and in the child's home language in the case of students enrolled in a bilingual education program. Such meeting shall be conducted with a qualified interpreter/translator in the language or mode of communication the parent or person in parental relation best understands. School districts shall determine the manner and form of such individual parent meetings, in accordance with local collective bargaining agreements.

(6) Each school district shall maintain records of signed notices of parents and persons in parental relation that indicate program selection as well as orientation session agendas and sign in sheets for such orientations. In the event that a parent or person in parental relation does not indicate a program choice, such information shall be recorded by the district. All such information must be accessible at all times that school is open for school staff. Signed notices of parents and persons in parental relation that indicate program selection shall be included in the student's cumulative record.

(1) Except as otherwise provided in this Part, the process for initial enrollment or reentry identification and parent notification, orientation, and placement shall be completed such that a student is placed in either a Bilingual Education or an English as a New Language program within 10 school days after the student's initial enrollment or reentry in the school district. Day(s) during a school closure ordered pursuant to an Executive Order(s) of the Governor pursuant to a State of emergency for the COVID-19 crisis and day(s) where a school or a local educational agency central office, where such office is responsible for implementing and completing the English Language Learners (ELLs) identification process, has temporarily shifted from in-person or hybrid instruction to full remote instruction due to an increase in COVID-19 cases in a school or surrounding geographic area shall not count towards the 10-day timeline prescribed in this paragraph.

(2) Except as otherwise provided in this Part, the process for initial or reentry identification and parent notification, orientation, and placement shall be completed such that a student is placed in either a bilingual education program or an English as a new language program by the first day of school in September for students identified more than 10 business days prior to such date.

(3) Notwithstanding paragraph (1) of this subdivision, due to the COVID-19 crisis for the 2020-2021 school year, the process for initial enrollment or reentry identification and parent notification, orientation, and placement shall be completed such that a student who was either newly enrolled during the COVID-19 closures in the 2019-2020 school year, Summer 2020 or the first 20 days of the 2020-2021 school year is placed in either a Bilingual Education or an English as a New Language program within 30 school days after the commencement of the 2020-2021 school year for school districts with 150 or more ELLs, or where ELLs constitute 10 percent or more of the district’s population.

(4) School districts with 149 or fewer ELLs, or where ELLs constitute less than 10 percent of the district’s population may seek an exemption from the timeline requirements of paragraph (1) of this subdivision for the newly enrolled students identified in paragraph (3) of this subdivision on an application form and in a timeframe prescribed by the commissioner; provided that such school demonstrates sufficient need for such exemption notwithstanding the size and percentage of its ELL population.

(1) English as new language K-8. Each school district shall provide an English as a new language program in grades K-8, based on a student's English language proficiency level, as identified by the Statewide English language proficiency identification assessment or the annual English language proficiency assessment, as follows:

(2) English as a new language 9-12. Each school district shall, provide an English as a new language program in grades 9-12, based on a student's English language proficiency level, as identified by the Statewide English language proficiency identification assessment or the annual English language proficiency assessment, as follows:

(3) Bilingual education programs. A bilingual education program in grades K-12 shall provide:

(4) For the 2019-20 school year a student may be exempted from the unit of study requirements prescribed under this subdivision where a student is unable to meet such requirements due to a school being closed pursuant to an Executive Order(s) of the Governor pursuant to a state of emergency for the COVID-19 crisis where such student otherwise achieves the learning outcomes for such unit of study requirement.

(1) The maximum allowable grade span for grouping instruction in grades K-12 English as a new language or bilingual education classes is two contiguous grades, except for English language learners in a special class, as defined by section 200.1(uu) of this Title. Provided, however, that beginning with the 2018-2019 school year the commissioner may waive such requirement for school districts with enrollment of fewer than thirty English language learner students and permit such districts to utilize a maximum allowable grade span for instruction in grades K-12 English as a new language or bilingual education classes of three contiguous grades, except for English language learners in a special class, as defined by section 200.1(uu) of this Title. A district seeking permission for such a waiver shall annually submit to the commissioner for approval an application on a form prescribed by the commissioner which must include:

(1) number of years of instruction in a bilingual education or English as a new language program;

(2) English and home language literacy, content area and socio-emotional support needs of students with inconsistent/interrupted formal education;

(3) English and home language literacy needs of long-term ELLs;

(4) results on the annual English language proficiency assessment exam;

(5) bilingual education or English as a second language teacher recommendation;

(6) content area teacher recommendation;

(7) parent or other person in parental relation request;

(8) sample of student work in English and, if possible, in their home language; and

(9) bilingual educational evaluation, if the student has or is suspected of having a disability.

(1) Consistent with section 80-6.3 and section 100.2(dd) of this Title, a minimum of 15 percent of the required professional learning clock hours for all teachers and administrators shall be dedicated to language acquisition, including a focus on best practices for co-teaching strategies and integrating language and content instruction for English language learners. For holders of a level III teaching assistant certificate, a minimum of 15 percent of the required professional learning clock hours shall be dedicated to language acquisition and content instruction for English language learners. For all bilingual and English to speakers of other languages (ESOL) certified teachers, a minimum of 50 percent of the required professional learning clock hours prescribed by Part 80 of this Title shall be dedicated to language acquisition in alignment with core content area instruction, including a focus on best practices for co-teaching strategies and integrating language and content instruction for English language learners. All school districts must align and integrate such professional learning for bilingual and English as a second language teachers with the professional learning plan for core content area for all teachers in the district.

(2) A school district or board of cooperative educational services may seek permission on an annual basis from the commissioner for an exemption from the professional learning requirements of this subdivision where there are fewer than 30 English language learner students enrolled or English language learners make up less than five percent of the district's or board of cooperative educational services’ total student population as of such date as established by the commissioner. A district or board of cooperative educational services seeking permission for such exemption shall submit to the commissioner for approval an application, in such format and according to such timeline as may be prescribed by the commissioner, that includes:

(1) Each school district will annually determine if a student identified as an English language learner will continue to be identified as an English language learner. The following criteria shall be used to make a determination to exit a student from English language learner status:

(2) Students with disabilities. Each school district will annually determine if a student with a disability who is identified as an English language learner will continue to be identified as an English language learner pursuant to this Part.