Substantially Equivalent Instruction for Nonpublic School Students

NY-ADR

7/3/19 N.Y. St. Reg. EDU-27-19-00010-P
NEW YORK STATE REGISTER
VOLUME XLI, ISSUE 27
July 03, 2019
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
 
I.D No. EDU-27-19-00010-P
Substantially Equivalent Instruction for Nonpublic School Students
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 130 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207, 215, 305(1), (2), 3204(1), (2), (3), 3205(1), 3210(2) and 3234
Subject:
Substantially Equivalent Instruction for Nonpublic School Students.
Purpose:
Provide guidance to local school authorities to assist them in fulfilling their responsibilities under the Compulsory Education Law.
Substance of proposed rule (Full text is posted at the following State website: http://www.counsel.nysed.gov/rules/full-text-indices):
The purpose of the proposed regulation is to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The intent of the substantial equivalency process is to ensure that all students receive the education to which they are entitled under the law. The substantial equivalency process must be a collaborative effort between LSAs and nonpublic schools.
The proposed regulation requires LSAs to make substantial equivalency determinations for all nonpublic schools within their geographical boundaries, except registered high schools, state-approved private special education schools, state-operated and state-supported schools, which are already subject to Department review, and nonpublic schools for which the Commissioner is required to make a substantial equivalency determination pursuant to Education Law § 3204(2)(ii)-(iii). Pursuant to Education Law § 3204(2)(ii)-(iii), the Commissioner is responsible for making final determinations on substantial equivalency reviews for nonpublic schools that meet the enumerated statutory criteria.
For schools that meet the statutory criteria for a Commissioner’s determination, LSAs must review such schools for substantial equivalency and forward a recommendation and supporting documentation to the Commissioner for his/her final determination.
The Department is proposing the following recommended timelines:
• New nonpublic schools that open on or after the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made within three years of when the nonpublic school commences instruction and regularly thereafter.
• Existing nonpublic schools that are operating on the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made by the end of the 2022-2023 school year or as soon as practicable thereafter and regularly thereafter.
The proposed regulation also recommends regular contact and communication between public and nonpublic schools, in an effort to keep each other informed of important updated information.
The proposed regulation states that substantial equivalency reviews and determinations should be conducted in a flexible and inclusive manner and should be the result of a collaboration between the LSA and the nonpublic school. Five core principles, defined in the regulation, are essential to the review process: objective, mindful, sensitive, respectful, and consistent.
The proposed regulation sets forth a recommended procedure for substantial equivalency reviews. Prior to commencing a substantial equivalency review, the LSA, after consulting with the nonpublic school, shall determine whether the Commissioner is responsible for making the final determination pursuant to Education Law § 3204(2)(ii) or (iii), or whether the LSA is responsible for making such final determination. Except for registered nonpublic high schools, state-approved private special education schools, state-operated schools and state supported schools, the superintendent or his/her designee (which may include a BOCES, where authorized under § 1950 of the Education Law) should review all nonpublic schools in the LSA’s geographic boundaries, including nonpublic schools that meet the criteria for a Commissioner’s determination, and, in conducting such reviews, the LSA must use the criteria outlined in the proposed regulation. For schools that meet the criteria for a Commissioner’s final determination, the LSA conducts the review using the appropriate criteria and makes a recommendation to the Commissioner for his/her final determination.
The proposed regulation recommends that a substantial equivalency review should be conducted by a team of at least two individuals, including individuals with expertise in instruction and the ability to communicate well with the nonpublic school community.
The proposed regulation sets forth a recommended procedure for LSAs to render determinations regarding substantial equivalency. If there are concerns about the substantial equivalency of the instruction, the proposed regulation recommends, among other things, that the LSA and nonpublic school work collaboratively to develop a clear plan and timeline, including benchmarks and targets, for attainting substantial equivalency in an amount of time that is reasonable given the concerns identified. The proposed regulation indicates that services must continue to nonpublic school students during any period for attaining substantial equivalency.
If, after the consultation described above, the concerns identified are addressed appropriately, the following steps should occur:
• the superintendent or his/her designee should inform the board of education in writing that the nonpublic school appears to be at least substantially equivalent.
• the LSA should send written notification to the administration of the nonpublic school and provide a letter for the nonpublic school to distribute to parents;
• the LSA must notify SORIS of the positive determination; and
• the superintendent or designee should share the positive finding with superintendents of school districts in which the nonpublic school’s students reside.
If, after the consultation described above, the concerns cannot be remedied or if the nonpublic school does not make the changes necessary to achieve substantial equivalency, the following steps should occur:
• The superintendent or designee should notify the board of education that the nonpublic school does not appear to be substantially equivalent, and the board of education will vote and make a final determination in a regularly scheduled, public board meeting.
• The LSA should notify nonpublic school administration of the date that the board of education will consider the matter of substantial equivalency.
• The nonpublic school should be provided an opportunity to present additional relevant materials and/or a written statement to the board of education prior to its determination.
• The LSA must provide written notification to the administration of the nonpublic school and the parents or persons in parental relationship to students attending the nonpublic school of such determination and that the students will be considered truant if they continue to attend that school.
• The board must provide a reasonable timeframe, giving due consideration to the statutory and regulatory timeframes for services to nonpublic school students, for parents or persons in parental relationship to identify and enroll their children in a different appropriate educational setting, consistent with Education Law § 3204.
• SORIS must be notified of the negative determination in a manner prescribed by the Commissioner.
• Required services to the nonpublic school and must continue until the end of the reasonable timeframe.
• Student records shall be managed consistent with section 104.2 of this Title.
Additionally, the proposed regulation requires LSAs to report the following information to SORIS by September 1, 2020 and each September 1 thereafter:
• List of all nonpublic schools within the LSA’s geographical boundaries.
• List of all nonpublic schools in LSA’s boundaries that are state-approved private special education schools, state-operated schools, and state-supported schools.
• List of all the nonpublic schools in the LSA’s boundaries that are registered high schools pursuant to 8 NYCRR 100.2(p).
• List of all the nonpublic schools that are in the LSA’s boundaries that are not state-approved private special education schools, state-supported schools, state-operated schools, or registered high schools and are subject to Commissioner’s review pursuant to Education Law § 3204(2)(ii)-(iii).
• A list of the remaining nonpublic schools identified in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination.
The proposed regulation also requires that, commencing on September 1, 2024 and each September 1 thereafter, LSAs must submit an attestation that they:
• Made a final substantial equivalency determination for each nonpublic school in their geographic area subject to their final determination, and
• Forwarded a substantial equivalency recommendation to the Commissioner for each nonpublic school in their geographic area that is subject to a final determination by the Commissioner.
The proposed regulation includes procedures for the Commissioner’s determination of substantial equivalency. For nonpublic schools for which the Commissioner is required to make a final determination, the LSA must conduct a review and forward its recommendation regarding substantial equivalency and all relevant documentation to support its recommendation to the Commissioner. The proposed regulation sets forth procedures for when a school subject to a Commissioner’s determination appears not to be substantially equivalent and for when the Commissioner renders a positive or negative substantial equivalency determination. Such procedures are similar to those described above for LSAs to follow when making a final determination.
The proposed regulation provides that, when making a substantial equivalency determination, an LSA, and the Commissioner, when he/she is responsible for making the final determination, must consider the following criteria:
• Instruction given only by a competent teacher.
• English is the language of instruction for common branch subjects.
• Appropriate programs for students who have limited English proficiency.
• Accreditation materials should be taken into account if a nonpublic school has been accredited within the last five years.
• Whether the instructional program in the nonpublic school incorporates instruction in the following subjects:
o during grades 1 through 6, mathematics, including arithmetic, science, and technology; English language arts; social studies; the arts; career development and occupational studies; health education, physical education, and family and consumer sciences. Instruction in these subjects may be integrated or incorporated into the syllabus or syllabi of other courses;
o during grades 7 and 8, mathematics (two units of study); English language arts (two units of study); social studies (two units of study); science (two units of study); career and technical education, wherein the unit of study requirement may be initiated in grade 5 (one and three-fourths units of study); physical education (similar courses of instruction to those required in public schools pursuant to section 135.4 of this Title); health education (one-half unit of study); visual arts (one-half unit of study); music (one-half unit of study); library and information skills, which may in incorporated or integrated into any other subjects (the equivalent of one period per week in grades 7 and 8); career development and occupational studies, which may be incorporated or integrated into any other subjects;
o during grades 9 through 12, instruction in English (four units of study); social studies (four units of study); mathematics (three units of study); science (three units of study); health (one-half unit of study); physical education (two units of study); the arts (one unit of study);
• Whether the nonpublic school meets other statutory instructional requirements, including requirements pursuant to Education Law §§ 305(52), 801, 803(4), 804, 806, 807, 808, 3204(3), (5); and 8 NYCRR §§ 100.2(c)(1), 100.2(c)(3)-(7), 100.2(c)(11).
• Pursuant to Education Law § 3204 for nonpublic elementary and middle schools subject to a Commissioner’s final determination pursuant to Education Law § 3204(2)(ii), the LSA, when making a recommendation and the Commissioner in his/her final determination, must take into consideration whether the school’s instructional program meets the criteria set forth in Education Law § 3204(2)(ii).
• For nonpublic high schools that meet the criteria for a Commissioner’s final determination pursuant to Education Law § 3204(2)(iii), the Commissioner and the LSA making a recommendation to the Commissioner will take into consideration whether the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students, the outcomes of which, taking into account the entirety of the curriculum, result in a sound basic education.
The proposed regulation also sets forth the rights and responsibilities of parents and persons in a parental relationship to nonpublic school students, LSAs and nonpublic school leaders related to substantial equivalency determinations.
For the full text of the regulation, please refer to our website at http://www.counsel.nysed.gov/rules/full-text-indices.
Text of proposed rule and any required statements and analyses may be obtained from:
Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Christina Coughlin, NY Education Department, SORIS, 89 Washington Avenue, Room 1075 EBA, Albany, NY 12234, (518) 474-7206, email: seregcomments@nysed.gov
Public comment will be received until:
60 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Summary of Regulatory Impact Statement (Full text is posted at the following State website: http://www.counsel.nysed.gov/rulesandregs):
1. STATUTORY AUTHORITY:
Education Law 207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Education Law 215 authorizes the Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Education Law 305(1) empowers the Commissioner of Education to be the chief executive officer of the State system of education and the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Board of Regents. Education Law section 305(2) authorizes the Commissioner to have general supervision over all schools subject to the Education Law.
Education Law 3204(1) provides that minors required to attend upon instruction pursuant to the Compulsory Education Law may attend at a public school or elsewhere.
Education Law 3204(2) requires, among other things, that instruction may be given only be a competent teacher, English shall be the language of instruction, and that instruction in nonpublic schools must be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools. Paragraph (ii) of that section requires the Commissioner to make final substantial equivalency determinations regarding (1) nonpublic elementary and middles schools that are non-profit corporations, have a bi-lingual program, and have an educational program that extends from no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five thirty p.m. for grades four through eight, on the majority of weekdays and (2) nonpublic high schools that are established for pupils in high school who have graduated from an elementary school that provides instruction as described in Education Law 3204(2), are a non-profit corporation, have a bi-lingual program, and have an educational program that extends from no later than nine a.m. until no earlier than six p.m. on the majority of weekdays.
Education Law 3204(3) provides for required courses of study in the public schools and authorizes the State Education Department to alter such required subjects of instruction.
Education Law 3205(1) requires each child of compulsory school age to attend upon full time day instruction.
Education Law section 3210(2) provides the amount and character of required attendance for nonpublic school students, with the exception that a child may be permitted to attend for a shorter school day and/or year if the instruction received has been approved by the local school authorities as being substantially equivalent in amount and quality to that required by the Compulsory Education Law.
Education Law section 3234 gives the Commissioner authority to supervise enforcement of the Compulsory Education Law by withholding public school moneys for certain failures to enforce the Compulsory Education Law.
2. LEGISLATIVE OBJECTIVES:
Consistent with the above statutory authority, the proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools.
3. NEEDS AND BENEFITS:
The purpose of the proposed regulation is to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The intent of the substantial equivalency process is to ensure that all students receive the education to which they are entitled under the law.
For the complete Regulatory Impact Statement, please visit the following website: http://www.counsel.nysed.gov/rulesandregs.
4. COSTS:
(a) Costs to State government: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
(b) Costs to local government: No additional costs are imposed on local governments beyond those imposed by law. The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The procedures and timelines set forth in the regulation for substantial equivalency reviews are merely recommendations to local school authorities and do not impose any requirements on LSAs beyond those imposed by law. Moreover, the Department developed a CO-SER by which an LSA may engage with a board of cooperative educational services to conduct substantial equivalency reviews, which may be used to offset any costs incurred by local governments to fulfill their statutory obligations under Education Law §§ 3204, 3205, and 3210.
The Department expects that any annual reporting requirements in the regulation would be necessary for the LSA to fulfill its existing statutory obligations.
(c) Costs to private regulated parties: No additional costs are imposed on regulated private parties.
(d) Costs to regulating agency for implementation and continued administration of this rule: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
5. LOCAL GOVERNMENT MANDATES:
The proposed rule is necessary to direct LSAs to make determinations and recommendations to the Commissioner, as applicable, regarding the substantial equivalency of instruction in nonpublic schools in accordance with Education Law §§ 3204, 3205, and 3210. The proposed regulation recommends a timeline and procedure for substantial equivalency reviews and determinations. The proposed regulation recommends regular contact and communication between public and nonpublic schools. It also requires an LSA to consider the listed criteria when making a substantial equivalency determination or recommendation to the Commissioner. The proposed regulation also imposes an annual reporting requirement on LSAs. See Needs and Benefits (contained in the complete Regulatory Impact Statement) and Paperwork sections for more information.
6. PAPERWORK:
The proposed rule requires LSAs to send recommendations and supporting documents to the Commissioner regarding the substantial equivalency of instruction at nonpublic schools that meet the criteria in Education Law § 3204(2). It also requires LSAs to document and retain findings of substantial equivalence and non-substantial equivalence and provide written confirmation to the nonpublic school.
The proposed rule requires LSAs to report to SORIS by September 1, 2020 and each September 1 thereafter: a list of all nonpublic schools located within the LSA’s geographic boundaries; a list of all nonpublic schools in LSA’s boundaries that are state-approved private special education schools, state-operated schools, and state-supported schools; a list of all the nonpublic schools in the LSA’s boundaries that are registered high schools pursuant to 8 NYCRR § 100.2(p); a list of all the nonpublic schools that are in the LSA’s boundaries that are not state-approved private special education schools, state-supported schools, state-operated schools, or registered high schools and are subject to Commissioner’s review pursuant to Education Law § 3204(2)(ii)-(iii); and a list of the remaining nonpublic schools identified in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination. The proposed rule also requires that, commencing on September 1, 2024 and each September 1 thereafter, LSAs must submit an attestation that they made a final substantial equivalency determination for each nonpublic school in their geographic area subject to their final determination, and forwarded a substantial equivalency recommendation to the Commissioner for each nonpublic school in their geographic area that is subject to a final determination by the Commissioner.
The proposed rule requires nonpublic schools to maintain a complete and accurate archive copy that includes detailed records of substantial equivalency determinations in the same manner as required for pupil academic records pursuant to 8 NYCRR 104.2.
7. DUPLICATION:
The proposed rule does not duplicate existing State or Federal regulations.
8. ALTERNATIVES:
The proposed rule is necessary to ensure that students who attend nonpublic schools receive substantially equivalent instruction to that provided in the public schools pursuant to Education Law § 3204. The Department engaged in a consultative process for over two years to produce the guidance that was released in November 2018. The proposed regulations make the following major changes to the updated guidance:
• Recommends that new schools be reviewed within three years of operation and that existing schools by reviewed by the end of the 2022-23 school year or as soon as practicable thereafter and regularly thereafter.
• Provides additional due process to the nonpublic school throughout the substantial equivalency process.
• Focuses on providing instruction in subject areas required by law rather than specific state learning standards.
• Explicitly allows for integrated curriculum that delivers content by incorporating more than one subject into the content of a course.
• Requires LSAs to annually file a list t of nonpublic schools subject to their review and Commissioner’s review by Sep. 1, 2020 and each September 1 thereafter; and
• Requires LSAs to file an annual update regarding the status of substantial equivalency reviews by Sep. 1, 2024 and each September 1 thereafter.
Thus, many alternatives were considered in the development of the proposed regulation.
9. FEDERAL STANDARDS:
There are no related Federal standards.
10. COMPLIANCE SCHEDULE:
The Department is proposing the following recommended timelines:
• New nonpublic schools that open on or after the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made within three years of when the nonpublic school commences instruction and regularly thereafter.
• Existing nonpublic schools that are operating on the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made by the end of the 2022-2023 school year or as soon as practicable thereafter and regularly thereafter.
Summary of Regulatory Flexibility Analysis (Full text is posted at the following State website: http://www.counsel.nysed.gov/rulesandregs):
(a) Small businesses:
The proposed amendment will not impose any additional compliance requirements on small businesses, and is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools.
(b) Local government:
The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The proposed rule is necessary to direct LSAs to make determinations and recommendations to the Commissioner, as applicable, regarding the substantial equivalency of instruction in nonpublic schools in accordance with Education Law §§ 3204, 3205, and 3210. The proposed regulation recommends a timeline and procedure for substantial equivalency reviews and determinations. The proposed regulation recommends regular contact and communication between public and nonpublic schools. It also requires an LSA to consider the listed criteria when making a substantial equivalency determination or recommendation to the Commissioner. The proposed regulation also imposes an annual reporting requirement on LSAs.
1. EFFECT OF RULE:
The proposed rule applies to each of the 695 public school districts in the State.
2. COMPLIANCE REQUIREMENTS:
The purpose of the proposed regulation is to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The intent of the substantial equivalency process is to ensure that all students receive the education to which they are entitled under the law.
For the complete Regulatory Flexibility Analysis for Small Business and Local Government, please visit the following website: http://www.counsel.nysed.gov/rulesandregs.
3. PROFESSIONAL SERVICES:
The rule imposes no additional professional service requirements.
4. COMPLIANCE COSTS:
(a) Costs to State government: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
(b) Costs to local government: No additional costs are imposed on local governments beyond those imposed by law. The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The procedures and timelines set forth in the regulation for substantial equivalency reviews are merely recommendations to local school authorities and do not impose any requirements on LSAs beyond those imposed by law. Moreover, the Department developed a CO-SER by which an LSA may engage with a board of cooperative educational services to conduct substantial equivalency reviews, which may be used to offset any costs incurred by local governments to fulfill their statutory obligations under Education Law §§ 3204, 3205, and 3210.
The Department expects that any annual reporting requirements in the regulation would be necessary for the LSA to fulfill its existing statutory obligations.
(c) Costs to private regulated parties: No additional costs are imposed on regulated private parties.
(d) Costs to regulating agency for implementation and continued administration of this rule: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the “Compliance Costs” section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to ensure that students who attend nonpublic schools receive substantially equivalent instruction to that provided in the public schools pursuant to Education Law § 3204. The Department engaged in a consultative process for over two years to produce the guidance that was released in November 2018. The proposed regulations make the following major changes to the updated guidance:
• Recommends that new schools be reviewed within three years of operation and that existing schools by reviewed by the end of the 2022-23 school year or as soon as practicable thereafter and regularly thereafter.
• Provides additional due process to the nonpublic school throughout the substantial equivalency process.
• Focuses on providing instruction in subject areas required by law rather than specific state learning standards.
• Explicitly allows for integrated curriculum that delivers content by incorporating more than one subject into the content of a course.
• Requires LSAs to annually file a list t of nonpublic schools subject to their review and Commissioner’s review by Sep. 1, 2020 and each September 1 thereafter; and
• Requires LSAs to file an annual update regarding the status of substantial equivalency reviews by Sep. 1, 2024 and each September 1 thereafter.
Thus, many alternatives were considered in the development of the proposed regulation.
Because the statutory requirements upon which the proposed rule is based applies to the instruction received by all New York students elsewhere than at a public school, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.
7. LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed rule have been 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.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
The proposed rule applies to all school districts in the State, 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 proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The proposed rule is necessary to direct LSAs to make determinations and recommendations to the Commissioner, as applicable, regarding the substantial equivalency of instruction in nonpublic schools in accordance with Education Law §§ 3204, 3205, and 3210. The proposed regulation recommends a timeline and procedure for substantial equivalency reviews and determinations. The proposed regulation recommends regular contact and communication between public and nonpublic schools. It also requires an LSA to consider the listed criteria when making a substantial equivalency determination or recommendation to the Commissioner. The proposed regulation also imposes an annual reporting requirement on LSAs.
The proposed rule requires LSAs to send recommendations and supporting documents to the Commissioner regarding the substantial equivalency of instruction at nonpublic schools that meet the criteria in Education Law § 3204(2). It also requires LSAs to document and retain findings of substantial equivalence and non-substantial equivalence and provide written confirmation to the nonpublic school.
The proposed rule requires LSAs to report to SORIS by September 1, 2020 and each September 1 thereafter: a list of all nonpublic schools located within the LSA’s geographic boundaries; a list of all nonpublic schools in LSA’s boundaries that are state-approved private special education schools, state-operated schools, and state-supported schools; a list of all the nonpublic schools in the LSA’s boundaries that are registered high schools pursuant to 8 NYCRR § 100.2(p); a list of all the nonpublic schools that are in the LSA’s boundaries that are not state-approved private special education schools, state-supported schools, state-operated schools, or registered high schools and are subject to Commissioner’s review pursuant to Education Law § 3204(2)(ii)-(iii); and a list of the remaining nonpublic schools identified in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination. The proposed rule also requires that, commencing on September 1, 2024 and each September 1 thereafter, LSAs must submit an attestation that they made a final substantial equivalency determination for each nonpublic school in their geographic area subject to their final determination, and forwarded a substantial equivalency recommendation to the Commissioner for each nonpublic school in their geographic area that is subject to a final determination by the Commissioner.
The proposed rule requires nonpublic schools to maintain a complete and accurate archive copy that includes detailed records of substantial equivalency determinations in the same manner as required for pupil academic records pursuant to 8 NYCRR 104.2.
3. COSTS:
(a) Costs to State government: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
(b) Costs to local government: No additional costs are imposed on local governments beyond those imposed by law. The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The procedures and timelines set forth in the regulation for substantial equivalency reviews are merely recommendations to local school authorities and do not impose any requirements on LSAs beyond those imposed by law. Moreover, the Department developed a CO-SER by which an LSA may engage with a board of cooperative educational services to conduct substantial equivalency reviews, which may be used to offset any costs incurred by local governments to fulfill their statutory obligations under Education Law §§ 3204, 3205, and 3210.
The Department expects that any annual reporting requirements in the regulation would be necessary for the LSA to fulfill its existing statutory obligations.
(c) Costs to private regulated parties: No additional costs are imposed on regulated private parties.
(d) Costs to regulating agency for implementation and continued administration of this rule: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
4. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to ensure that students who attend nonpublic schools receive substantially equivalent instruction to that provided in the public schools pursuant to Education Law § 3204. The Department engaged in a consultative process for over two years to produce the guidance that was released in November 2018. The proposed regulations make the following major changes to the updated guidance:
• Recommends that new schools be reviewed within three years of operation and that existing schools by reviewed by the end of the 2022-23 school year or as soon as practicable thereafter and regularly thereafter.
• Provides additional due process to the nonpublic school throughout the substantial equivalency process.
• Focuses on providing instruction in subject areas required by law rather than specific state learning standards.
• Explicitly allows for integrated curriculum that delivers content by incorporating more than one subject into the content of a course.
• Requires LSAs to annually file a list t of nonpublic schools subject to their review and Commissioner’s review by Sep. 1, 2020 and each September 1 thereafter; and
• Requires LSAs to file an annual update regarding the status of substantial equivalency reviews by Sep. 1, 2024 and each September 1 thereafter.
Thus, many alternatives were considered in the development of the proposed regulation. Because the statutory requirements upon which the proposed rule is based applies to the instruction received by all New York students elsewhere than at a public school, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.
5. RURAL AREA PARTICIPATION:
Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§ 3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools.
The proposed rule will not have a substantial adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed rule that it will have no impact, or a positive impact, on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
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