PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Amendment of section 100.5 of Title 8 NYCRR.

Diploma Requirements for Students with Disabilities.

Provide new safety net option for students with disabilities to earn a local diploma through the use of compensatory scoring.

Section 100.5 of the Regulations of the Commissioner of Education is amended, effective October 3, 2012, as follows:

§ 100.5 Diploma requirements.

(a) General requirements for a Regents or a local high school diploma. Except as provided in paragraph (d)(6) of this section, the following general requirements shall apply with respect to a Regents or local high school diploma. Requirements for a diploma apply to students depending upon the year in which they first enter grade nine. A student who takes more than four years to earn a diploma is subject to the requirements that apply to the year that student first entered grade nine. Students who take less than four years to complete their diploma requirements are subject to the provisions of subdivision (e) of this section relating to accelerated graduation.

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) State assessment system. (i) Except as otherwise provided in subparagraphs (ii), (iii) and (iv) of this paragraph, all students shall demonstrate attainment of the New York State learning standards:

(a) . . .

(b) . . .

(c) United States history and government:

(1) . . .

(2) . . .

(3) for students with disabilities who first enter grade nine in or after September 1998 and prior to September 2011 and who fail the Regents examination in United States history and government, the United States history and government requirements for a local diploma may be met by passing the Regents competency test in United States history and government. For students with disabilities who first enter grade nine in September 2005 and thereafter, the United States history and government requirements for a local diploma may also be met by passing the Regents examination in United States history and government with a score of 55-64 or as provided in subparagraph (b)(7)(vi) of this section. This provision shall apply only to students with disabilities who are entitled to attend school pursuant to Education Law, section 3202 or 4402(5);

(4) . . .

(d) Science:

(1) . . .

(2) . . .

(3) for students with disabilities who first enter grade nine in or after September 1999 and prior to September 2011 and who fail a Regents examination in science, the science requirements for a local diploma may be met by passing the Regents competency test in science. For students with disabilities who first enter grade nine in September 2005 and thereafter, the science requirements for a local diploma may also be met by passing a Regents examination in science with a score of 55-64 or as provided in subparagraph (b)(7)(vi) of this section. This provision shall apply only to students with disabilities who are entitled to attend school pursuant to Education Law, section 3202 or 4402(5);

(4) . . .

(e) Global history and geography:

(1) . . .

(2) . . .

(3) for students with disabilities who first enter grade nine in or after September 1998 and prior to September 2011 and who fail the Regents examination in global history and geography, the global history and geography requirements for a local diploma may be met by passing the Regents competency test in global studies. For students with disabilities who first enter grade nine in September 2005 and thereafter, the global history and geography requirements for a local diploma may also be met by passing the Regents examination in global history and geography with a score of 55-64 or as provided in subparagraph (b)(7)(vi) of this section. This provision shall apply only to students with disabilities who are entitled to attend school pursuant to Education Law, section 3202 or 4402(5);

(4) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(6) . . .

(7) . . .

(8) . . .

(b) Additional requirements for the Regents diploma. Except as provided in paragraph (d)(6) of this section, the following additional requirements shall apply for a Regents diploma.

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) Types of diplomas.

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(vi) Local diploma options for students with disabilities. The provisions of this subparagraph shall apply only to students with disabilities who are entitled to attend school pursuant to Education Law section 3202 or 4402(5).

(a) For students with disabilities who first enter grade nine in or after September 2001 and prior to September 2011 and who fail required Regents examinations for graduation but pass Regents competency tests in those subjects, as provided for in paragraph (a)(5) of this section, a local diploma may be issued by the local school district.

(b) For students with disabilities who first enter grade nine in September 2005 and thereafter, a score by such student of 55-64 may be considered as a passing score on any Regents examination required for graduation, and in such event and subject to the requirements of paragraph (c)(6) of this section, the school may issue a local diploma to such student. [This provision shall apply only to students with disabilities who are entitled to attend school pursuant to Education Law, section 3202 or 4402(5).]

(c) Notwithstanding the provisions of clause (b) of this subparagraph, for students with disabilities who first enter grade nine in September 2005 and thereafter, a student's score of 45-54 on a Regents examination required for graduation, other than the English and mathematics examinations, may, for purposes of earning a local diploma, be compensated by a score of 65 or higher on one of the other required Regents examinations; provided that:

(1) each examination for which the student earned a score of 45-54 must be compensated by a score of 65 higher on a separate examination; a score of 65 or higher on a single examination may not be used to compensate more than one examination for which the student earned a score of 45-54; and

(2) the student has attained at least a 65 course average in the subject area of the Regents examination in which he or she received a score of 45-54; and

(3) the student has an attendance rate of at least 95 percent for the school year during which the student took the Regents examination in which he or she received a score of 45-54, exclusive of excused absences; and

(4) a student shall not use the compensatory score option if the student is using a passing score on one or more Regents competency tests (RCT) pursuant to clause (a) of this subparagraph to graduate with a local diploma.

(vii) . . .

(viii) . . .

(ix) . . .

(x) . . .

(c) . . .

(d) . . .

(e) . . .

(f) . . .

Mary Gammon, Administrative Assistant, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: [email protected]

Ken Slentz, Deputy Comm. P-12 Education, State Education Department, State Education Building, 2M West, 89 Washington Ave., Albany, NY 12234, (518) 474-5520, email: [email protected]

45 days after publication of this notice.

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and educational work of the State.

Education Law section 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 section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.

Education Law section 209 authorizes the Regents to establish secondary examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations; and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.

Education Law section 305(1) empowers the Commissioner of Education to be the chief executive officer of the state system of education and of the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Regents. Education Law section 305(2) authorizes the Commissioner of Education to have general supervision over all schools subject to the Education Law.

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

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement Regents policy to expand the safety net options for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma.

3. NEEDS AND BENEFITS:

Over a decade ago, the Regents Competency Test (RCT) safety net option was adopted as a temporary measure to provide students with disabilities increased opportunities to earn a diploma. Access to the RCTs was meant to terminate once districts revised their instructional programs to provide students with disabilities full access to the general education standards in both elementary and secondary school. To provide adequate time for the transition, the Board of Regents delayed the phase out of the RCT three times and decided to apply the phase-out to the entering cohort of September 2011. As a result, under current regulations, only the 55-64 pass score Safety Net option to earn a local diploma remains available to students with disabilities entering ninth grade in September 2011 and thereafter.

In January 2012, the Regents discussed the need to consider additional options for students with disabilities to earn a local diploma. Discussions around the Safety Net focused on the group of students with disabilities who, with appropriate accommodations, supports and services, can reach the State's learning standards at the Commencement Level. At the April 2012 Regents Meeting, the Department recommended that the Board expand the safety net options for students with disabilities to earn a local diploma beyond the current option of the 55-64 pass score on the five required Regents exams.

The proposed amendment establishes a new safety net local diploma option, that would provide opportunity for approximately the same number of students with disabilities to earn a local high school diploma based on performance on Regents examinations or approved alternatives. Specifically, the proposed amendment would allow students with disabilities, who first enter grade nine in September 2005 or thereafter, to earn a local high school diploma if:

(1) the student attains a score of 55-64 on each of the five required Regents exams (English, mathematics, U.S history and government, science, and global history and geography) and/or passes an alternative examination; or

(2) the student scores 45-54 on one or more of the five required Regents exams, other than the English or mathematics exam, but scores 65 or higher on one or more of the other required Regents exams, in which case, for purposes of earning a local diploma, the lower score(s) can be compensated by the higher score(s); provided that

(a) each examination for which the student scores 45-54 must be compensated by a score of 65 or higher on a separate examination;

(b) the student must have also attained at least a 65 course average in the subject area of the Regents examination in which he/she obtained a score of 45-54;

(c) the student has an attendance rate of at least 95 percent for the school year during which the student took the Regents examination in which he or she received a score of 45-54, exclusive of excused absences; and

(d) a student cannot use the compensatory score option if the student is using a passing score on one or more Regents competency tests pursuant to section 100.5(b)(7)(vi)(a).

4. COSTS:

a. Costs to State government: None.

b. Costs to local governments: None.

c. Costs to regulated parties: None.

d. Costs to the State Education Department of implementation and continuing compliance: None.

The proposed amendment is necessary to expand the safety net for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma and does not impose any additional costs beyond those imposed by federal statutes and regulations and State statutes.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations. The proposed amendment will provide students with disabilities who are not able to earn a 55-64 score on one or more of the required Regents examinations with an additional option to graduate with a local diploma by permitting students with disabilities to earn a local diploma through the use of a compensatory score option, which would allow a student with a disability to earn a local diploma based on the student attaining a score of 65 or higher on one or more of the five required Regents exams, which score(s) could be used to compensate score(s) of 45-54 on one or more of the other required Regents exams (other than the English and mathematics Regents tests), provided that certain conditions specified in the proposed amendment are met.

6. PAPERWORK:

The proposed amendment does not impose any additional paperwork requirements. It merely expands the current safety net for students with disabilities to allow a student to earn a local diploma through the use of a compensatory score option, based on the student attaining a score of 65 or higher on one or more of the five required Regents exams, which score(s) could be used to compensate score(s) of 45-54 on one or more of the other required Regents exams (other than the English and mathematics Regents tests), provided that certain conditions specified in the proposed amendment are met.

7. DUPLICATION:

The proposed amendment does not duplicate, overlap or conflict with any other State or federal statute or regulation.

8. ALTERNATIVES:

The Department considered other acceptable scoring variations than 55-64 on the required Regents exams that could warrant a local diploma; passing scores on tests other than the current five mandated Regents exams (ELA, Math, Science, Global History, U.S. History) and allowing students with disabilities to substitute courses for currently required courses and credits. The Regents selected the compensatory model as the most appropriate option, based on review of data and in consideration of disability issues that may preclude a student from receiving a score off 55 or higher on all Regents examinations. In establishing the 45-54 score range, the Department considered the need to encourage appropriate effort by students on all required Regents examinations, while recognizing that a 45-54 does not represent a 'passing' score. In considering the attendance requirements, the disability-related factors were considered through the exclusion of excused absences. In establishing the course average requirement, the Department considered the related requirements for the appeals process for Regents examinations scores that apply to all students. The Regents deferred decisions on the other options as it discusses broader policy on alternative pathways to graduation for all students.

9. FEDERAL STANDARDS:

The proposed amendment is not required by federal law or regulations. There are no applicable Federal statutes, regulations or other requirements.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.

Small Businesses:

The proposed amendment relates to diploma requirements, and is necessary to implement Regents policy to expand the safety net options for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma. The proposed amendment 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 affirmative steps are 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:

The proposed amendment applies to all public school districts, charter schools, and registered nonpublic high schools in the State, to the extent that they offer instruction in the high school grades.

1. COMPLIANCE REQUIREMENTS:

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

The proposed amendment would expand the safety net options for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma. The proposed amendment will provide students with disabilities who are not able to earn a 55-64 score on one or more of the required Regents examinations with an additional option to graduate with a local diploma by permitting students with disabilities to earn a local diploma through the use of a compensatory option, which would allow a student with a disability to earn a local diploma based on the student attaining a score of 65 or higher on one or more of the five required Regents exams, which score(s) could be used to compensate score(s) of 45-54 on one or more of the other required Regents exams (other than the English and mathematics Regents tests). The proposed amendment would require that, in order to earn a local diploma through the compensatory option, the student must have also attained at least a 65 course average in the subject area of the Regents examination in which he/she obtained a score of 45-54; and the student must have an attendance rate of at least 95 percent for the school year during which the student took the Regents examination in which he or she received a score of 45-54, exclusive of excused absences, provided that certain conditions specified in the proposed amendment are met.

2. PROFESSIONAL SERVICES:

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

3. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs on local governments. The proposed amendment expands the safety net for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma.

4. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements or costs on local governments.

5. MINIMIZING ADVERSE IMPACT:

The proposed amendment establishes a new safety net local diploma option that would provide opportunity for approximately the same number of students with disabilities to earn a local high school diploma based on performance on Regents examinations or approved alternatives. The proposed amendment does not impose any costs or compliance requirements, and therefore would have no adverse impact on local governments.

6. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed 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.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment will apply to all public school districts, charter schools, and registered nonpublic high schools in the State, to the extent that they offer instruction in the high school grades, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less.

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

The proposed amendment does not impose any additional compliance requirements or professional services requirements on entities in rural areas.

The proposed amendment would expand the safety net options for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma. The proposed amendment will provide students with disabilities who are not able to earn a 55-64 score on one or more of the required Regents examinations with an additional option to graduate with a local diploma by permitting students with disabilities to earn a local diploma through the use of a compensatory score option, which would allow a student with a disability to earn a local diploma based on the student attaining a score of 65 or higher on one or more of the five required Regents exams, which score(s) could be used to compensate score(s) of 45-54 on one or more of the other required Regents exams (other than the English and mathematics Regents tests). The proposed amendment would require that, in order to earn a local diploma through the compensatory option, the student must have also attained at least a 65 course average in the subject area of the Regents examination in which he/she obtained a score of 45-54; and the student must have an attendance rate of at least 95 percent for the school year during which the student took the Regents examination in which he or she received a score of 45-54, exclusive of excused absences.

3. COSTS:

The proposed amendment does not impose any additional costs on entities in rural areas. The proposed amendment expands the safety net for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment establishes a new safety net local diploma option that would provide opportunity for approximately the same number of students with disabilities to earn a local high school diploma based on performance on Regents examinations or approved alternatives. The proposed amendment does not impose any costs or compliance requirements, and therefore would have no adverse impact on entities in rural areas. Since these requirements apply to all local and State educational agencies in the State, it is not possible to adopt different standards for school districts in rural areas.

5. RURAL AREA PARTICIPATION:

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

The proposed amendment is necessary to implement Regents policy to expand the safety net for students with disabilities that currently exist in section 100.5 of the Regulations of the Commissioner of Education to further enable graduation with a local diploma.

The proposed amendment will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the amendment that it will not affect job and employment opportunities, no affirmative 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.