• Academic Intervention Services (AIS) determinations;

• Home instruction programs deadline for submission of the written notice of intention to instruct at home;

• School health screening waivers;

• Definition of the unity of study;

• Career development and occupational studies work-based learning experience hours;

• Science laboratory experience;

• Diagnostic screening for new school entrants;

• Psychological evaluations for students referred for being suspected of having a disability;

• Student observation for an initial evaluation of a student suspected of having a disability;

• Incidental teaching;

• Substitute teaching;

• Shorter semester for institutions of higher education;

• Class sizes for 3-year olds and 4-year olds;

• Process for initial enrollment, reentry identification and parent notification, orientation, and placement of English Language Learners (ELLs), identification of ELLs with inconsistent/interrupted formal education, and the timeline for review of ELLs identification; and

• School bus drills.

Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (nonemergency) adoption, after publication in the State Register and expiration of the 60-day public comment period required in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), is the October 2020 Regents meeting. However, because the COVID-19 crisis is presently affecting the State of New York, emergency action is necessary for the preservation of public health and the general welfare in order to immediately provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to prepare for the reopening of schools.

It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the October 2020 Regents meeting, which is the first scheduled meeting after the 60-day public comment period prescribed in SAPA for State agency rule makings. However, since the emergency regulation will expire before the October meeting, it is anticipated that an additional emergency action will be presented for adoption at the September 2020 Regents meeting.

• Academic Intervention Services

o Section 100.2(ee) of the Commissioner’s regulations is amended to provide that schools are not required to conduct the two-step identification prescribed for identification of students to receive AIS for the 2020-21 school year due to the cancelation of State assessments for the 2019-20 school year due to the COVID-19 crisis.

• Home Instruction

o Section 100.10(b) of the Commissioner’s regulations is amended to provide that for the 2020-21 school year, the home instruction program deadline for submission of the written notice of intention to instruct at home is extended from July 1 until August 1, 2020 due to the COVID-19 crisis.

• Health Screening Waiver

o Section 136.3(e) of the Commissioner’s regulations is amended to provide that hearing, vision, and scoliosis screenings required to be provided by public schools are waived for the 2020-21 school year due to the COVID-19 crisis, unless the screening is otherwise deemed necessary.

• Curriculum and Instruction

o Unit of Study: The definition of “Unit of study” in section 100.1(a) of the Commissioner’s regulations is amended to provide that “equivalent” shall mean at least 180 minutes of instructional time per week for instruction delivered in a traditional face to face model or through alternative instructional experiences, including but not limited to through digital technology or blended learning, that represents standards-based learning under the guidance and direction of an appropriately certified teacher. Instructional experiences shall include, but not be limited to: meaningful and frequent interaction with an appropriately certified teacher; academic and other supports designed to meet the needs of the individual student and instructional content that reflects consistent academic expectations as in-person instruction. Any alternative instructional experience must include meaningful feedback on student assignments and methods of tracking student engagement. This amendment is necessary so that schools may plan for various types of instructional models, including hybrid models, because of contingencies that may make it impossible for a specific amount of face to face contact between teachers and students due to the COVID-19 crisis.

o CDOS: Section 100.6(b) of the Commissioner’s regulations is amended to provide that a career development and occupational studies (CDOS) commencement credential may be awarded to students exiting school in the 2020-2021 school year who are unable to complete all of the 54 hours of documented school supervised work-based learning experiences required and otherwise meet all other requirements for such credential, where such schools are unable to provide students a certain portion of their scheduled work-based learning experience in the 2020-2021 school year due to the COVID-19 crisis.

o Science laboratory experience: Section 100.5(b) of the Commissioner’s regulations is amended to provide that for the 2020-2021 school year as a result of the COVID-19 crisis the 1,200 minutes of lab experience may be met through a combination of hands-on and simulated laboratory experience.

o Diagnostic screening: Section 117.3(b) of the Commissioner’s regulations is amended to provide that for the 2020-21 school year diagnostic screening for new entrants and students with low test scores shall be conducted as soon as practicable due to the COVID-19 crisis rather than by December 1st of the school year.

• Special Education

o Section 200.4(b) of the Commissioner’s regulations is amended to provide that an individual psychological evaluation is only a required component for an initial evaluation when it is determined to be necessary by a school psychologist due to the COVID-19 crisis when schools are closed pursuant to an Executive Order of the Governor and students are learning remotely.

o Additionally, such section is amended to require an observation of a student as a required component for an initial evaluation only when it is determined appropriate by the Committee on Preschool Special Education or Committee on Special Education due to the COVID-19 crisis when schools are closed pursuant to an Executive Order of the Governor and students are learning remotely.

o Classroom observations would continue to be a required component of an initial evaluation for students suspected of having a learning disability.

• Higher Education

o Incidental teaching: Section 80-5.3 of the Commissioner’s regulations is amended to allow a superintendent of schools to assign certified teachers to teach a subject not covered by their certificate for a period not to exceed ten classroom hours a week, when no certified or qualified teachers are available after extensive and documented recruitment, during the time period of the State of emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis.

o Substitute teacher: Section 80-5.4 of the Commissioner’s regulations is amended to allow substitute teachers who do not hold a valid certificate and who are not working towards certification but who holds a high school diploma or its equivalent, to be employed by the school district or BOCES beyond the 40-day limit, for up to 90 days in extreme circumstances and for more than 90 days in rare circumstances, under specified conditions during the time period of the State of Emergency declared by the Governor pursuant to an Executive Order for the COVID-19 crisis.

o Shorter semester: The definitions of full-time and part-time student for Tuition Assistance Programs (TAP) in Section 145-2.1 of the Commissioner’s regulations is amended to provide that for the 2020-21 academic year students shall be considered full-time and part-time where the student is unable to enroll in credit-bearing courses for at least 15 weeks for a semester due to the COVID-19 crisis, provided that such student is enrolled in such credit-bearing courses for a minimum of 12 weeks for a semester and still meets the semester hour requirements.

• Early Learning

o Section 151-1.3(d) of the Commissioner’s regulations is amended to provide that due to the COVID-19 crisis for the 2020-21 school year for school districts outside of NYC for 3-year old students, with a class size of 7 children or less there must be one teacher assigned to each class and for 4-year old students, with a class size of 8 children or less, there must be one teacher assigned to each class. For the City School District of the City of New York for 3-year old students, with a class size of 10 children or less, there must be one teacher assigned to each class and for 4-year old students, with a class size of 12 children or less there must be one teacher assigned to each class.

• English Language Learners

o Section 154-2.2(y) of the Commissioner’s regulations is amended to provide that 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 shall not count towards the calculation of less than twelve months for identifying English language learner (ELL) students with inconsistent/interrupted formal education.

o Section 154-2.3(a)(2) of the Commissioner’s regulations is amended to provide that the individual interview for the identification process to determine if a student is an English language learner is waived where a 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 will review the previously completed Home Language Questionnaire with the parent or person in parental relation.

o Section 154-2.3(b)of the Commissioner’s regulations is amended to provided that due to the COVID-19 crisis for the 2020-2021 school year, the 45-day timeline for a school district to initiate a review of a determination made in the initial or reentry identification process for English language learners after receipt of a written request is 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.

o Section 154-2.3(g) of the Commissioner’s regulations is amended to provide that:

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 English as New Language program within 30 school days after commencement of the 2020-2021 school year for school districts with 150 or more ELLs, or where ELLs 10% or more of the district’s population.

School districts with 149 or fewer ELLs or where ELLs constitute less than 10% of the district’s population may seek an exemption from the English language learner identification timeline for students who are 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 on an application form 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.

• Pupil Transportation

o Section 156.3(f) is amended to provide that for the first school bus drill to be conducted during the first seven days of schools, such seven days shall exclude any days where school is closed pursuant to an Executive Order of the Governor for the COVID-19 crisis for the Fall term for 2020-2021 school year.

1. STATUTORY AUTHORITY:

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

Education Law § 208 empowers the Regents to confer diplomas and degrees as they deem proper and to establish examination as to attainments in learning, and award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the prescribed requirements.

Education Law § 209 provides that the Regents shall establish, in secondary institutions, examinations in studies furnishing a suitable standard of graduation therefrom and of admission to colleges, and certificates or diplomas shall be conferred by the Regents to students who satisfactorily pass such examinations.

Education Law § 215 empowers the Regents and the Commissioner to visit, examine into and inspect, any institution in the University and any school or institution under the educational supervision of the State and may require reports therefrom giving information as the Regents or the Commissioner prescribe.

Education Law § 305 establishes the general powers and duties of the Commissioner of Education.

Education Law § 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.

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

Education Law § 602 prescribes the duties of the commissioner of education.

Education Law § 661 prescribed the eligibility requirements and conditions governing general awards, academic performance awards and student loans.

Education Law § 905 requires the director of school health services of each school district to conduct screening examinations of vision, hearing, and scoliosis of all students at such times and as defined in the Commissioner’s regulations, and at any time deemed necessary.

Education Law § 1709 enumerates the powers and duties of boards of education of union free school districts.

Education Law § 3001 prescribes the qualifications of teachers.

Education Law § 3004 directs the Commissioner of Education to prescribe regulations governing the examination and certification of teachers employed in all public schools of the State.

Education Law § 3009 provides that unqualified teachers shall not be paid from school moneys.

Education Law § 3204 provides that a minor required to attend upon instruction may attend at a public school or elsewhere.

Education Law § 3205 provides that each minor from six to sixteen years of age in each school district or on an Indian reservation shall attend upon full time instruction.

Education Law § 3208 provides for the screening of new entrants to school and the prohibition against mandatory medication.

Education Law § 3212 defines a person in parental relation and their duties.

Education Law § 3214 prescribes procedures and requirements for student placement, suspensions and transfers.

Education Law § 3602 provides for the apportionment of public moneys to school districts employing eight or more teachers.

Education Law § 3602-c provides for the apportionment of moneys to school district for the provision of services to pupils attending nonpublic schools.

Education Law § 3602-e authorizes and directs the Commissioner of Education to award grants for the establishment and implementation of a prekindergarten program to serve eligible children.

Education Law § 3604 enumerates conditions under which districts are entitled to the apportionment of state funds.

Education Law § 3623(1)(c) provides that the first school bus drill, of the three drills per school year, shall be conducted during the first seven days of sessions of the fall term.

Education Law § 3713 authorizes and empowers the State, any school district, or its trustees or board of education to accept appropriations from the federal government for educational purposes.

Education Law § 4401 provides definitions relating to children with handicapping conditions.

Education Law § 4403 outlines the Department’s responsibilities regarding special education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as the Commissioner deems in their best interest.

Education Law 4410(7) provides that a parent may file a written request with the board of education for an impartial hearing with respect to any matter relating to the identification, evaluation or educational placement of, or provision of a free appropriate public education to preschool students with disabilities. Subdivision (14) authorizes the Commissioner to adopt regulations to implement the such statute.

2. LEGISLATIVE OBJECTIVES:

The proposed amendments are consistent with the above statutory authority and are necessary to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. The purpose of the proposed amendment is to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to prepare for the reopening of schools.

3. NEEDS AND BENEFITS:

On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern. On March 7, 2020, the Governor of New York State declared a State disaster emergency for the entire State of New York pursuant to Executive Order 202. Subsequently, the Governor issued additional Executive Orders in response to the COVID-19 crisis, including orders directing the closure of schools for the remainder of the school year and summer school and directing nonessential work personnel to work from home. In response, the Department adopted emergency regulations at the April, May and June 2020 Board of Regents Meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, and to plan for the reopening of schools the Department is proposing further emergency regulatory amendments providing flexibility related to the following:

• Academic Intervention Services (AIS) determinations;

• Home instruction programs deadline for submission of the written notice of intention to instruct at home;

• School health screening waivers;

• Definition of the unity of study;

• Career development and occupational studies work-based learning experience hours;

• Science laboratory experience;

• Diagnostic screening for new school entrants;

• Psychological evaluations for students referred for being suspected of having a disability;

• Student observation for an initial evaluation of a student suspected of having a disability;

• Incidental teaching;

• Substitute teaching;

• Shorter semester for institutions of higher education;

• Class sizes for 3-year olds and 4-year olds;

• Process for initial enrollment, reentry identification and parent notification, orientation, and placement of English Language Learners (ELLs), identification of ELLs with inconsistent/interrupted formal education, and the timeline for review of ELLs identification; and

• School bus drills.

4. COSTS:

a. Costs to State government: The amendments do not impose any costs on State government.

b. Costs to local government: The amendments do not impose any costs on local government.

c. Costs to private regulated parties: The amendments do not impose any costs on private regulated parties.

d. Cost to the regulatory agency: There are no additional costs to the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon any local government.

6. PAPERWORK:

The proposed amendment does not impose any additional paperwork requirements.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or Federal requirements.

8. ALTERNATIVES:

The proposed amendments are necessary to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to plan for the reopening of schools. There are no significant alternatives to the proposed amendment and none were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

If adopted at the July 2020 Regents meeting, the emergency rule will become effective July 14, 2020. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption at its October 2020 meeting. If adopted at the October 2020 meeting, the proposed amendment will become effective on November 4, 2020. It is anticipated that regulated parties will be able to comply with the proposed amendment by the effective date.

(a) Small businesses:

The proposed rule relates to providing flexibility for certain regulatory requirements in response to the COVID-19 crisis and to plan for the reopening of schools. The proposed amendments do not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendments that they do 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.

(b) Local governments:

1. EFFECT OF RULE:

The purpose of the proposed amendments is to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to plan for the reopening of schools. The proposed amendments apply to each of the 695 public school districts in the State.

2. COMPLIANCE REQUIREMENTS:

On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern. On March 7, 2020, the Governor of New York State declared a State disaster emergency for the entire State of New York pursuant to Executive Order 202. Subsequently, the Governor issued additional Executive Orders in response to the COVID-19 crisis, including orders directing the closure of schools for the remainder of the school year and summer school and directing nonessential work personnel to work from home. In response, the Department adopted emergency regulations at the April, May and June 2020 Board of Regents Meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, and to plan for the reopening of schools the Department is proposing further emergency regulatory amendments providing flexibility related to the following:

• Academic Intervention Services (AIS) determinations;

• Home instruction programs deadline for submission of the written notice of intention to instruct at home;

• School health screening waivers;

• Definition of the unity of study;

• Career development and occupational studies work-based learning experience hours;

• Science laboratory experience;

• Diagnostic screening for new school entrants;

• Psychological evaluations for students referred for being suspected of having a disability;

• Student observation for an initial evaluation of a student suspected of having a disability;

• Incidental teaching;

• Substitute teaching;

• Shorter semester for institutions of higher education;

• Class sizes for 3-year olds and 4-year olds;

• Process for initial enrollment, reentry identification and parent notification, orientation, and placement of English Language Learners (ELLs), identification of ELLs with inconsistent/interrupted formal education, and the timeline for review of ELLs identification; and

• School bus drills.

3. PROFESSSIONAL SERVICES:

The proposed amendment does not impose any additional professional services requirements on local governments.

4. COMPLIANCE COSTS:

The proposed amendment will not impose any additional program, service, duty, responsibility or costs beyond those imposed by statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any additional costs or technological requirements on local governments.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendments are necessary to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to plan for the reopening of schools. Accordingly, no alternatives were considered.

7. LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State and from the chief school officers of the five big city school districts.

The purpose of the proposed amendments to the Regulations of the Commissioner of Education is to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to plan for the reopening of schools. On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern. On March 7, 2020, the Governor of New York State declared a State disaster emergency for the entire State of New York pursuant to Executive Order 202. Subsequently, the Governor issued additional Executive Orders in response to the COVID-19 crisis, including orders directing the closure of schools for the remainder of the school year and summer school and directing nonessential work personnel to work from home. In response, the Department adopted emergency regulations at the April, May and June 2020 Board of Regents Meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, and to plan for the reopening of schools the Department is proposing further emergency regulatory amendments providing flexibility related to the following:

• Academic Intervention Services (AIS) determinations;

• Home instruction programs deadline for submission of the written notice of intention to instruct at home;

• School health screening waivers;

• Definition of the unity of study;

• Career development and occupational studies work-based learning experience hours;

• Science laboratory experience;

• Diagnostic screening for new school entrants;

• Psychological evaluations for students referred for being suspected of having a disability;

• Student observation for an initial evaluation of a student suspected of having a disability;

• Incidental teaching;

• Substitute teaching;

• Shorter semester for institutions of higher education;

• Class sizes for 3-year olds and 4-year olds;

• Process for initial enrollment, reentry identification and parent notification, orientation, and placement of English Language Learners (ELLs), identification of ELLs with inconsistent/interrupted formal education, and the timeline for review of ELLs identification; and

• School bus drills.

The proposed amendment provides flexibility for certain regulatory requirements during the COVID-19 crisis and plans for the reopening of schools. Thus, the proposed amendment does not adversely impact entities in rural areas of New York State. Accordingly, no further steps were needed to ascertain the impact of the proposed amendment on entities in rural areas and none were taken. Thus, a rural flexibility analysis is not required and one has not been prepared.

The purpose of the proposed amendments is to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to plan for the reopening of schools. The proposed amendment provides flexibility related to the following:

• Academic Intervention Services (AIS) determinations;

• Home instruction programs deadline for submission of the written notice of intention to instruct at home;

• School health screening waivers;

• Definition of the unity of study;

• Career development and occupational studies work-based learning experience hours;

• Science laboratory experience;

• Diagnostic screening for new school entrants;

• Psychological evaluations for students referred for being suspected of having a disability;

• Student observation for an initial evaluation of a student suspected of having a disability;

• Incidental teaching;

• Substitute teaching;

• Shorter semester for institutions of higher education;

• Class sizes for 3-year olds and 4-year olds;

• Process for initial enrollment, reentry identification and parent notification, orientation, and placement of English Language Learners (ELLs), identification of ELLs with inconsistent/interrupted formal education, and the timeline for review of ELLs identification; and

• School bus drills.

Because it is evident from the nature of the proposed amendment that it will have no impact on the number of jobs or employment opportunities in New York State, no further steps were needed to ascertain that fact and none were taken.