On March 31, 2015, the New York State Education Department submitted to the United States Education Department (USDE) an ESEA Flexibility Waiver Renewal Request. On June 23, 2015, the USDE Secretary, based upon his authority to issue waivers pursuant to section 9401 of the ESEA, approved the Waiver Request.

The proposed rulemaking and amends Commissioner's Regulations sections 100.18 to align the Commissioner's Regulations with the approved ESEA Flexibility Renewal Waiver, and align the regulations with Commissioner’s Regulation 100.19 related to receivership. Adoption of the proposed amendment is necessary to ensure a seamless transition to the revised school and school district accountability plan under the Waiver and will allow school districts the option to demonstrate improvements, using options that closely align with the federal school turnaround principles described in Race to the Top and School Improvement Grant requirements.

The proposed amendment was adopted by emergency action at the July 20-21, 2015 Regents meeting, effective July 21, 2015, to timely implement New York State's approved ESEA Flexibility Renewal Waiver so that school districts may timely meet school/school district accountability requirements for the 2015-2016 school year and beyond, consistent with the approved ESEA Flexibility Waiver and pursuant to statutory requirements. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on August 5, 2015. Because the Board of Regents meets at scheduled intervals the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the October 26-27, 2015 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the September meeting, would be November 11, 2015, the date a Notice of Adoption would be published in the State Register. However, the July emergency rule will expire on October 18, 2015, 90 days from its filing with the Department of State on July 21, 2015.

Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the July 2015 Regents meeting remains continuously in effect until the proposed rule can be presented for adoption and take effect as a permanent rule, and thereby ensure that school districts may timely meet school/school district accountability requirements for the 2015-2016 school year and beyond, consistent with the approved ESEA Flexibility Waiver and pursuant to statutory requirements.

It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at its October 26-27, 2015 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.

Section 100.18(a), Definitions, is amended to revise the definitions of “performance levels”, “performance index” and “whole school reform model”; to add definitions of “re-identified focus school”, “re-identified priority school”, “Innovation framework model”, “evidence-based model”, and “early learning intervention model”; and to provide that “struggling school”, “persistently struggling school”, “school district receiver”, “school intervention plan”, “school receiver” and “consultation and collaboration” shall be as defined in 8 NYCRR section 100.19(a).

Section 100.18(f), Adequate Yearly Progress, is amended to provide that:

• commencing with 2014-15 school year results, a public school, charter school or school district will not be held accountable for an accountability group that consists of fewer than 30 students on performance criterion set forth in 100.18(j) if the "all students" accountability group for that performance criterion includes at least 30 students for that school year and the accountability group with fewer than 30 students did not fail to meet participation rate requirements pursuant to 100.18(f)(4)(ii);

• effective with 2014-2015 school year results and continuing with the results for each school year thereafter, the “all students” accountability group for a public school, charter school or school district shall be deemed to have made adequate yearly progress on a performance criterion specified in 100.18(j)(3) if all the accountability groups, except the “all students” group, for which a public school, charter school or school district is accountable on that performance criterion made adequate yearly progress.

Section 100.18(g), Differentiated Accountability for Schools and Districts, is amended to set forth criteria for:

(1) preliminary identification of priority schools, focus districts and schools based upon 2014-2015 school year results;

(2) identification of focus schools with the 2014-2015 school year results;

(3) identification of local assistance plan schools as focus schools;

(4) designation of schools requiring a local assistance plan, based on 2013-14 school year results;

and to provide that in the event a priority school has been identified as a struggling school or a persistently struggling school pursuant to 100.19, the annual public notification requirements of 100.19(c) shall apply.

Section 100.18(h), Interventions, is amended to provide that:

• commencing with the 2015-16 school year, re-identified focus schools must revise their school comprehensive education plan to focus on the needs identified through their most recent Integrated Intervention Team (IIT), district-led, or School-led with district oversight Diagnostic Tool for School and District Effectiveness reviews, and to require the plan include a review of the re-identified focus school leader, and a description of how the school will implement at least one ESEA turnaround principle starting no later than the 2016-17 school year;

• for schools that are identified as Persistently Struggling or Struggling Schools and that are under a School District Receiver, the comprehensive education plan must also include the requirements specified in 8 NYCRR section 100.19(d)(1), related to development of a community engagement plan and inclusion of rigorous performance metrics and goals;

• for schools designated as struggling or persistently struggling, in creating the school intervention plan or in revising the Department-approved school comprehensive education plan or intervention model plan, the school receiver shall ensure that the plan addresses the tenets of the Diagnostic Tool For School and District Effectiveness and include student outcome data pursuant to section 100.19(f)(4); and

• No later than September 30, 2012 for schools identified during the 2011-12 school year, and no later than July 31, 2016 for schools identified during the 2016-17 school year, except that the commissioner may waive this timeline for good cause, each focus district with one or more priority schools shall submit in such format as prescribed by the commissioner the schedule by which each of the school district's priority schools shall implement, as part of the school's comprehensive improvement plan, a whole school reform model. A school implementing a transformation, turnaround, innovative framework model, early learning intervention model or evidence based model, or restart model pursuant to a school improvement grant or a school innovation fund grant, shall be deemed to be implementing a whole school reform model. Upon approval of the schedule by the commissioner, each priority school shall implement the whole school reform model according to the timeline specified in the schedule, which shall require that implementation begin no later than the 2014-2015 school year for schools identified during the 2012-13 school year, and no later than the 2018-19 school year for schools identified during the 2015-16 school year. The schedule for implementation of the whole school reform model may not be modified without prior approval of the commissioner.

Section 100.18(i), Removal from accountability designation, is amended to provide that:

• for a focus school that is identified pursuant to 100.18(g)(8), a district may petition for removal if the school meets the criteria specified in 100.18(g)(8)(vi); and

• commencing with 2015-16 school year results, if the school district does not meet the criteria for removal but each priority and focus school within the school district meets the criteria for removal, the district will remain a focus district but each school within the district shall be removed from priority or focus school designation.

Section 100.18(k), Identification of Schools for Public School Registration Review, is amended to:

• add the following additional grounds as among the factors the Commissioner may consider in determining whether a school is to be identified as a poor learning environment: (1) evidence the school does not maintain required programs and services; (2) evidence of failure to appropriately refer for identification and/or provide required programs and services to students with disabilities pursuant to 8 NYCRR Part 200; and (3) evidence of failure to appropriately identify and/or provide required programs and services to English language learners pursuant to 8 NYCRR Part 154.

• provide that, notwithstanding the provisions of 100.18(g), any school identified as a School Under Registration Review pursuant to 100.18(k) shall also be identified as a priority school and shall be subject to all of the requirements of this section;

Subdivision (l) of section 100.18 is amended to provide:

• in the event that the Commissioner places a struggling school or a persistently struggling school pursuant to section 100.19 under registration review, the district may use a single notification to fulfill the annual public notification requirements of subdivisions 100.18(g)(7)(ii) and (l)(1)(ii) and section 100.19(c)(1)(ii);

• a school district may fulfill the requirements for implementation of a revised or new improvement plan by: (a) entering into a contract with an Educational Partnership Organization; (b) converting a school to a charter school; (c) entering into a contract with the state university trustees, subject to the approval of the commissioner of education, for the education of the children of the school; (d) for the city school district of New York, entering into a contract with the City University of New York (CUNY) to administer a New York City public high school; (e) implementing a plan to provide enhanced support and oversight of the school through an alternative governance structure, pursuant to prescribed criteria.

• A school that is identified for registration review that has also been identified as a struggling school or persistently struggling school pursuant to section 100.19 of this Part shall implement the school receivership provisions of that section, except that if the school fails to make demonstrable improvement pursuant to section 100.19 of this Part for two consecutive years, the Commissioner may direct that the school receivership be terminated and provide the district the opportunity to take one of the following actions: (a) convert the school to a charter school; (b) enter into a contract with SUNY trustees, subject to the approval of the commissioner of education, for the education of the children of the school; or (c) for the city school district of New York, entering into a contract with the city board and CUNY to administer a New York City public high school. In the event that the school district does not submit an acceptable plan in such format and in such timeline as the commissioner may establish, the commissioner may direct that the school district close or phase out the school pursuant to a plan approved by the commissioner.

1. STATUTORY AUTHORITY:

Education Law section 101 continues existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.

Education Law section 207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on Department.

Education Law section 210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.

Education Law § 211-e sets forth provisions relating to contracts between a board of education (in New York City, the Chancellor of the city school district of the City of New York) and educational partnership organizations to intervene in a school designated by the Commissioner as a persistently lowest-achieving school, consistent with federal requirements, or a school under registration review.

Education Law § 211-f provides for appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance.

Education Law section 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.

Education Law section 305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents. Section 305(20) provides Commissioner shall have such further powers and duties as charged by Regents.

Education Law section 309 charges Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.

Education Law section 3713(1) and (2) authorize State and school districts to accept federal law making appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment relates to public school and school district accountability, is consistent with the above authority, and is necessary to implement and otherwise conform the Commissioner's Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal Request and to align section 100.18 with new section 100.19 relating to Receivership (July 8, 2015 State Register; EDU-27-15-00008-EP). The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.

3. NEEDS AND BENEFITS:

In September 2011, President Obama announced an ESEA regulatory flexibility initiative, based upon the Secretary of Education’s authority to issue waivers. In October 2011, the Board of Regents directed the Commissioner to submit an ESEA Flexibility Request to the United States Department of Education (USDE). On May 29, 2012, the USDE approved New York State’s ESEA Flexibility Waiver Request. In September 2013, the USDE offered states with approved ESEA Flexibility Waivers the opportunity to renew those waivers for the 2014-15 school year. At its February 2014 meeting, the Board of Regents directed the Department to submit its ESEA Renewal Application. On July 31, 2014, USDE approved New York State’s ESEA Waiver Renewal Request for the 2014-15 school year. On November 13, 2014, the USDE issued new guidance for states with approved ESEA Flexibility Waivers describing how states could apply for a three- or four-year renewal of their approved Flexibility Waivers. At its March 2015 meeting, the Board of Regents directed the Department to submit its ESEA Renewal application for the 2015-16, 2016-17, 2017-18, and 2018-19 school years. On June 15, 2015, the Board of Regents added section 100.19 to the Regulations of the Commissioner, in order to implement Education Law 211-f related to school receivership. On June 23, 2015, the USDE approved New York’s 2015-19 ESEA Renewal Request.

The approved request grants New York flexibility, among other things, to:

establish alternative Annual Measurable Objectives (AMOs) that do not require that all students by no later than the 2013-14 school year be proficient in language/arts and mathematics.

• replace the identification of schools and districts for improvement, corrective action, and restructuring based on failure to make Annual Yearly Progress (AYP) with the identification of Priority Schools and Focus Schools and Districts.

• revise the consequences for identified schools and districts, providing districts with greater flexibility to implement their plans for improvement without having to set aside significant percentages of funding to support activities such as supplementary educational services.

• waive the requirement that a school have a poverty percentage of 40 percent or more to become a school wide program.

• allow the use of 1003(a) school improvement funds to provide grants to Title I Reward Schools and Local Assistance Plan Schools.

• allow districts to forego testing students who take Regents math examinations in grade 7 or 8 on the mathematics assessments for those grade levels.

• allow 21st Century Community Learning Center funds to support expanded learning time both during the school day and when school is not in session.

• waive the requirement that districts develop improvement plans regarding highly qualified teachers; and

• allow districts to transfer up to 100 percent of funds from certain programs into Title I.

4. COSTS:

Cost to the State: None.

Costs to local government: None. The proposed rule does not impose any new or additional program, service or duty or responsibility upon local government.

Cost to private regulated parties: None.

Cost to regulating agency for implementation and continued administration of this rule: None.

The proposed amendment does not impose any direct costs on the State, school districts, BOCES or charter schools, or on the State Education Department. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment relates to public school and school district accountability and New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal, and aligns section 100.18 with new section 100.19 relating to Receivership. The proposed rule does not impose any new or additional program, service, duty, or responsibility upon local governments, including school districts or BOCES. The proposed amendment will:

• accelerate the ability of the Department to inform schools and districts of their accountability status without having any material effect on accountability determinations;

• allow affected districts to use one of the three new School Improvement Grant (SIG) intervention models (early learning model, evidence-based model, and innovative framework model) to meet the requirements to implement a whole school reform model in a Priority School;

• allow the Department to make modest revisions to the methodologies used to identify/remove schools from Priority School, Focus School and Local Assistance Plan (LAP) status and districts from Focus status and use these revised methodologies to create new lists in February 2016 of Priority Schools, Focus Schools, LAP Schools and Focus Districts based on 2014-15 school year data;

• extend through the 2018-19 school year the provision that allows districts to forego testing students on the Grade 7 and 8 Mathematics assessments, if these students have taken a Regents examination in mathematics;

• require more rigorous interventions and supports for Re-identified Focus Schools.

• revise the Schools under Registration Review (SURR) process to align to the receivership requirements in section 100.19 pertaining to Persistently Struggling and Struggling Schools, including provisions pertaining to parent and public notification. A SURR that has also been identified as a Struggling School or Persistently Struggling School pursuant to Section 100.19 will be required to implement school receivership.

• require that any school identified as a SURR automatically also be identified as a Priority School, subject to the requirements pertaining to such schools and restrict the identification of Focus and LAPs as SURRs to those schools that have been determined by the Commissioner to be a poor learning environment in which the health, safety or educational welfare of children is at risk and/or a school that has been the subject of persistent parent complaints.

• revise the conditions for which a school could be identified as a poor learning environment and therefore be identified as a SURR by the Commissioner.

6. PAPERWORK:

Commencing with the 2015-16 school year, Re-identified Focus Schools must revise their school comprehensive education plan (SCEP) to focus on the needs identified through their most recent Integrated Intervention Team (IIT), district-led, or School-led with district oversight Diagnostic Tool for School and District Effectiveness reviews and describe how the school will implement at least one ESEA turnaround principle (e.g., redesign the school day, week, or year; modify the instructional program to ensure it is research-based, rigorous, and aligned with State academic content standards; provide time for collaboration on the use of data) starting no later than the 2016-17 school year. The plan must also include a review of the Re-identified Focus School leader, if the principal has been leader of the school for more than two full academic years. The purpose of the review is to determine whether the school leader should be provided additional professional development and/or mentoring or replaced.

7. DUPLICATION:

The rule does not duplicate existing State or federal regulations.

8. ALTERNATIVES:

There were no significant alternatives and none were considered.

9. FEDERAL STANDARDS:

The rule is necessary to conform the Commissioner's Regulations to New York's approved ESEA Flexibility Waiver Renewal.

10. COMPLIANCE SCHEDULE:

It is anticipated parties will be able to achieve compliance with the rule by its effective date.

Small businesses:

The proposed amendment relates to public school and school district accountability and is necessary to conform the Commissioner's Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal Request. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.

The amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local governments:

1. EFFECT OF RULE:

The amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act of 1965, as amended.

2. COMPLIANCE REQUIREMENTS:

The amendment relates to public school and school district accountability and New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal, and aligns section 100.18 with new section 100.19 relating to Receivership (July 8, 2015 State Register; EDU-27-15-00008-EP). The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended. The amendment has been carefully drafted to meet specific federal and State requirements and does not impose any additional compliance requirements or costs on school districts and BOCES beyond those inherent in such federal and State requirements. The amendment will:

• accelerate the ability of the Department to inform schools and districts of their accountability status without having any material effect on accountability determinations;

• allow affected districts to use one of the three new School Improvement Grant (SIG) intervention models (early learning model, evidence-based model, and innovative framework model) to meet the requirements to implement a whole school reform model in a Priority School;

• allow the Department to make modest revisions to the methodologies used to identify/remove schools from Priority School, Focus School and Local Assistance Plan (LAP) status and districts from Focus status and use these revised methodologies to create new lists in February 2016 of Priority Schools, Focus Schools, LAP Schools and Focus Districts based on 2014-15 school year data;

• extend through the 2018-19 school year the provision that allows districts to forego testing students on the Grade 7 and 8 Mathematics assessments, if these students have taken a Regents examination in mathematics;

• require more rigorous interventions and supports for Re-identified Focus Schools.

• revise the Schools under Registration Review (SURR) process to align to the receivership requirements in section 100.19 pertaining to Persistently Struggling and Struggling Schools, including provisions pertaining to parent and public notification. A SURR that has also been identified as a Struggling School or Persistently Struggling School pursuant to Section 100.19 will be required to implement school receivership.

• require that any school identified as a SURR automatically also be identified as a Priority School, subject to the requirements pertaining to such schools and restrict the identification of Focus and LAPs as SURRs to those schools that have been determined by the Commissioner to be a poor learning environment in which the health, safety or educational welfare of children is at risk and/or a school that has been the subject of persistent parent complaints.

• revise the conditions for which a school could be identified as a poor learning environment and therefore be identified as a SURR by the Commissioner.

• Commencing with the 2015-16 school year, Re-identified Focus Schools must revise their school comprehensive education plan (SCEP) to focus on the needs identified through their most recent Integrated Intervention Team (IIT), district-led, or School-led with district oversight Diagnostic Tool for School and District Effectiveness reviews and describe how the school will implement at least one ESEA turnaround principle (e.g., redesign the school day, week, or year; modify the instructional program to ensure it is research-based, rigorous, and aligned with State academic content standards; provide time for collaboration on the use of data) starting no later than the 2016-17 school year. The plan must also include a review of the Re-identified Focus School leader, if the principal has been leader of the school for more than two full academic years. The purpose of the review is to determine whether the school leader should be provided additional professional development and/or mentoring or replaced.

3. PROFESSIONAL SERVICES:

The amendment imposes no additional professional service requirements.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any direct costs on school districts or BOCES. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The amendment imposes no technological requirements on local governments. Costs are discussed under the Compliance Costs section above.

6. MINIMIZING ADVERSE IMPACT:

The amendment is necessary to implement and otherwise conform the Commissioner's Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Renewal Waiver Request, and to align section 100.18 with new section 100.19 relating to Receivership. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended. The amendment has been carefully drafted to meet specific federal and State requirements and does not impose any additional compliance requirements or costs on school districts or BOCES beyond those inherent in such federal and State requirements. The amendment will:

• accelerate the ability of the Department to inform schools and districts of their accountability status without having any material effect on accountability determinations;

• allow affected districts to use one of the three new School Improvement Grant (SIG) intervention models (early learning model, evidence-based model, and innovative framework model) to meet the requirements to implement a whole school reform model in a Priority School;

• allow the Department to make modest revisions to the methodologies used to identify/remove schools from Priority School, Focus School and Local Assistance Plan (LAP) status and districts from Focus status and use these revised methodologies to create new lists in February 2016 of Priority Schools, Focus Schools, LAP Schools and Focus Districts based on 2014-15 school year data;

• extend through the 2018-19 school year the provision that allows districts to forego testing students on the Grade 7 and 8 Mathematics assessments, if these students have taken a Regents examination in mathematics;

• require more rigorous interventions and supports for Re-identified Focus Schools.

• revise the Schools under Registration Review (SURR) process to align to the receivership requirements in section 100.19 pertaining to Persistently Struggling and Struggling Schools, including provisions pertaining to parent and public notification. A SURR that has also been identified as a Struggling School or Persistently Struggling School pursuant to Section 100.19 will be required to implement school receivership.

• require that any school identified as a SURR automatically also be identified as a Priority School, subject to the requirements pertaining to such schools and restrict the identification of Focus and LAPs as SURRs to those schools that have been determined by the Commissioner to be a poor learning environment in which the health, safety or educational welfare of children is at risk and/or a school that has been the subject of persistent parent complaints.

• revise the conditions for which a school could be identified as a poor learning environment and therefore be identified as a SURR by the Commissioner.

• Commencing with the 2015-16 school year, Re-identified Focus Schools must revise their school comprehensive education plan (SCEP) to focus on the needs identified through their most recent Integrated Intervention Team (IIT), district-led, or School-led with district oversight Diagnostic Tool for School and District Effectiveness reviews and describe how the school will implement at least one ESEA turnaround principle (e.g., redesign the school day, week, or year; modify the instructional program to ensure it is research-based, rigorous, and aligned with State academic content standards; provide time for collaboration on the use of data) starting no later than the 2016-17 school year. The plan must also include a review of the Re-identified Focus School leader, if the principal has been leader of the school for more than two full academic years. The purpose of the review is to determine whether the school leader should be provided additional professional development and/or mentoring or replaced.

The proposed amendment has been carefully drafted to meet specific federal and State requirements and does not impose any additional compliance requirements or costs beyond those inherent in such federal and State requirements. Since these requirements apply to all local educational agencies in the State that receive ESEA funds, it is not possible to adopt different standards for school districts and BOCES.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the amendment have been provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts and to charter schools.

8. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement and otherwise conform the Commissioner’s Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended. Consequently, the major, substantive provisions of the proposed rule are subject to the approved Waiver Request and generally cannot be changed without approval by the U.S. Department of Education.

The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item number 16. of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the date the Notice is published in the State Register.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act (ESEA) of 1965, as amended, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The amendment relates to public school and school district accountability and New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal, and aligns section 100.18 with new section 100.19 relating to Receivership. The proposed amendment has been carefully drafted to meet specific federal and State requirements and does not impose any additional compliance requirements or costs on school districts, BOCES and charter schools in rural areas beyond those inherent in such federal and State requirements. The amendment will:

• accelerate the ability of the Department to inform schools and districts of their accountability status without having any material effect on accountability determinations;

• allow affected districts to use one of the three new School Improvement Grant (SIG) intervention models (early learning model, evidence-based model, and innovative framework model) to meet the requirements to implement a whole school reform model in a Priority School;

• allow the Department to make modest revisions to the methodologies used to identify/remove schools from Priority School, Focus School and Local Assistance Plan (LAP) status and districts from Focus status and use these revised methodologies to create new lists in February 2016 of Priority Schools, Focus Schools, LAP Schools and Focus Districts based on 2014-15 school year data;

• extend through the 2018-19 school year the provision that allows districts to forego testing students on the Grade 7 and 8 Mathematics assessments, if these students have taken a Regents examination in mathematics;

• require more rigorous interventions and supports for Re-identified Focus Schools.

• revise the Schools under Registration Review (SURR) process to align to the receivership requirements in section 100.19 pertaining to Persistently Struggling and Struggling Schools, including provisions pertaining to parent and public notification. A SURR that has also been identified as a Struggling School or Persistently Struggling School pursuant to Section 100.19 will be required to implement school receivership.

• require that any school identified as a SURR automatically also be identified as a Priority School, subject to the requirements pertaining to such schools and restrict the identification of Focus and LAPs as SURRs to those schools that have been determined by the Commissioner to be a poor learning environment in which the health, safety or educational welfare of children is at risk and/or a school that has been the subject of persistent parent complaints.

• revise the conditions for which a school could be identified as a poor learning environment and therefore be identified as a SURR by the Commissioner.

• Commencing with the 2015-16 school year, Re-identified Focus Schools must revise their school comprehensive education plan (SCEP) to focus on the needs identified through their most recent Integrated Intervention Team (IIT), district-led, or School-led with district oversight Diagnostic Tool for School and District Effectiveness reviews and describe how the school will implement at least one ESEA turnaround principle (e.g., redesign the school day, week, or year; modify the instructional program to ensure it is research-based, rigorous, and aligned with State academic content standards; provide time for collaboration on the use of data) starting no later than the 2016-17 school year. The plan must also include a review of the Re-identified Focus School leader, if the principal has been leader of the school for more than two full academic years. The purpose of the review is to determine whether the school leader should be provided additional professional development and/or mentoring or replaced.

The amendment imposes no additional professional service requirements on school districts and BOCES in rural areas.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any direct costs on school districts, BOCES or charter schools located in rural areas. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.

4. MINIMIZING ADVERSE IMPACT:

The amendment is necessary to implement and otherwise conform the Commissioner's Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Renewal Waiver Request, and to align section 100.18 with new section 100.19 relating to Receivership (July 8, 2015 State Register; EDU-27-15-00008-EP) . The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended. The amendment has been carefully drafted to meet specific federal and State requirements and does not impose any additional compliance requirements or costs on school districts, BOCES and charter schools in rural areas beyond those inherent in such federal and State requirements. The amendment will:

• accelerate the ability of the Department to inform schools and districts of their accountability status without having any material effect on accountability determinations;

• allow affected districts to use one of the three new School Improvement Grant (SIG) intervention models (early learning model, evidence-based model, and innovative framework model) to meet the requirements to implement a whole school reform model in a Priority School;

• allow the Department to make modest revisions to the methodologies used to identify/remove schools from Priority School, Focus School and Local Assistance Plan (LAP) status and districts from Focus status and use these revised methodologies to create new lists in February 2016 of Priority Schools, Focus Schools, LAP Schools and Focus Districts based on 2014-15 school year data;

• extend through the 2018-19 school year the provision that allows districts to forego testing students on the Grade 7 and 8 Mathematics assessments, if these students have taken a Regents examination in mathematics;

• require more rigorous interventions and supports for Re-identified Focus Schools.

• revise the Schools under Registration Review (SURR) process to align to the receivership requirements in section 100.19 pertaining to Persistently Struggling and Struggling Schools, including provisions pertaining to parent and public notification. A SURR that has also been identified as a Struggling School or Persistently Struggling School pursuant to Section 100.19 will be required to implement school receivership.

• require that any school identified as a SURR automatically also be identified as a Priority School, subject to the requirements pertaining to such schools and restrict the identification of Focus and LAPs as SURRs to those schools that have been determined by the Commissioner to be a poor learning environment in which the health, safety or educational welfare of children is at risk and/or a school that has been the subject of persistent parent complaints.

• revise the conditions for which a school could be identified as a poor learning environment and therefore be identified as a SURR by the Commissioner.

• Commencing with the 2015-16 school year, Re-identified Focus Schools must revise their school comprehensive education plan (SCEP) to focus on the needs identified through their most recent Integrated Intervention Team (IIT), district-led, or School-led with district oversight Diagnostic Tool for School and District Effectiveness reviews and describe how the school will implement at least one ESEA turnaround principle (e.g., redesign the school day, week, or year; modify the instructional program to ensure it is research-based, rigorous, and aligned with State academic content standards; provide time for collaboration on the use of data) starting no later than the 2016-17 school year. The plan must also include a review of the Re-identified Focus School leader, if the principal has been leader of the school for more than two full academic years. The purpose of the review is to determine whether the school leader should be provided additional professional development and/or mentoring or replaced.

The amendment relates to public school and school district accountability and New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal, and aligns section 100.18 with new section 100.19 relating to Receivership. Since these requirements apply to all local educational agencies in the State that receive ESEA funds, it is not possible to adopt different standards for school districts, BOCES and charter schools in rural areas.

5. RURAL AREA PARTICIPATION:

The amendment was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement and otherwise conform the Commissioner’s Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended. Consequently, the major, substantive provisions of the proposed rule are subject to the approved Waiver Request and generally cannot be changed without approval by the U.S. Department of Education.

The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item number 16. of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the date the Notice is published in the State Register.

The proposed amendment relates to public school and school district accountability and is necessary to implement and otherwise conform the Commissioner's Regulations to New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal Request and to align section 100.18 with new section 100.19 relating to Receivership (July 8, 2015 State Register; EDU-27-15-00008-EP). The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.

The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.