Education Law section 211-d requires each school district: (1) that has at least one school currently identified as (i) requiring academic progress or (ii) in need of improvement or (iii) in corrective action or (iv) in restructuring; and (2) that receives an increase in either (i) total foundation aid compared to the base year in an amount that equals or exceeds either $15 million dollars or 10 percent of the amount received in the base year, whichever is less, or (ii) a supplemental educational improvement plan grant, to prepare a contract for excellence, which shall describe how the total foundation aid and supplemental educational improvement plan grants shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement. The statute requires the Commissioner to establish by regulation the allowable programs and activities for such purposes. The statute also requires the Commissioner to prescribe a format by which each affected school district shall publicly report its expenditures of total foundation aid.

The proposed amendment was adopted at the April 23–24, 2007 Regents meeting as an emergency measure, effective April 27, 2007, in order to immediately establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for contracts for excellence under Education Law section 211-d, so that affected school districts may timely prepare such contracts for the 2007–2008 school year pursuant to statutory requirements. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 16, 2007.

At their June 25–26, 2007 meeting, the Regents substantially revised the proposed rule, and adopted the revised rule by emergency action, effective July 26, 2007. A Notice of Emergency Adoption and Revised Rule Making was published in the August 8, 2007 State Register.

At their July 25, 2007 meeting, the Board of Regents further revised the proposed rule in response to public comment, as set forth in the Statement Concerning the Regulatory Impact Statement and Assessment of Public Comment submitted herewith. Pursuant to the State Administrative Procedure Act section 202(4-a), the revised rule cannot be adopted by regular (non-emergency) action until at least 30 days after publication of the revised rule in the State Register. The earliest a Notice of Revised Rule Making could appear in the State Register would be the August 15, 2007 edition. Since the Board of Regents meets at fixed intervals, and there is no meeting scheduled for August 2007 and the September Regents meeting is scheduled for September 10–11, 2007, the earliest the proposed amendment can be adopted by regular action, after expiration of the 30-day public comment period for a revised rule making, is the October Regents meeting. However, the June emergency adoption will expire on September 21, 2007, 60 days after its filing with the Department of State on July 24, 2007. A lapse in the rule's effectiveness would disrupt implementation of the contract for excellence program under Education Law section 211-d. A third emergency adoption is therefore necessary for the preservation of the general welfare to adopt revisions to the rule in response to public comment and to otherwise ensure that the emergency rule adopted at the April Regents meeting, and revised at the June Regents meeting, remains continuously in effect until the effective date of its adoption as a permanent rule.

Section 100.13(a) defines: (1) total foundation aid; (2) supplemental educational improvement plan grant; (3) contract amount; (4) base year; (5) experimental programs; (6) highly qualified teacher; and (7) response to intervention program.

Section 100.13(b) establishes applicability provisions for determining whether a school district is required to prepare a contract for excellence. A contract shall be prepared by each district: (1) that has at least one school currently identified under section 100.2(p) as: (a) requiring academic progress; or (b) in need of improvement; or (c) in corrective action; or (d) in restructuring; and (2) that receives: (a) an increase in total foundation aid compared to the base year in an amount that equals or exceeds either fifteen million dollars or ten percent of the amount received in the base year, whichever is less; or (b) a supplemental educational improvement plan grant. For the 2007–2008 school year, such increase in total foundation aid shall be the amount of the difference between total foundation aid received for the current year and the total foundation aid base as defined in Education Law section 3602(1)(j). In the NYC school district, a contract shall be prepared for the city school district and each community district meeting the above criteria.

Section 100.13(c) establishes requirements for preparation and submission of contracts. Each contract shall be in a format, and submitted pursuant to a timeline, prescribed by the Commissioner and shall:

(1) describe how the contract amount shall be used to support new programs and new activities or expand use of programs and activities demonstrated to improve student achievement, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(d);

(2) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(d), for which each sub-allocation of the contract amount shall be used and affirm that such programs shall predominately benefit students with the greatest educational needs including, but not limited to: (a) limited English proficient (LEP) students and students who are English language learners (ELL); (b) students in poverty; and (c) students with disabilities;

(3) state, for all funding sources, whether federal, state or local, the instructional expenditures per pupil, the special education expenditures per pupil, and the total expenditures per pupil, projected for the current year and estimated for the base year; provided that no later than February 1 of the current school year, the district shall submit a revised contract stating such expenditures actually incurred in the base year;

(4) include any programmatic data projected for the current year and estimated for the base year, as the Commissioner may require; and

(5) in the NYC school district, include a plan that meets the requirements of section 100.13(d)(2)(i)(a), to reduce average class sizes within five years for the following grade ranges: (a) prekindergarten through grade three; (b) grades four through eight; and (c) grades nine through twelve. Such plan shall be aligned with the capital plan of the NYC school district and include continuous class size reduction for low performing and overcrowded schools beginning in the 2007–2008 school year and thereafter and include the methods to be used to achieve proposed class sizes, such as the creation or construction of more classrooms and school buildings, the placement of more than one teacher in a classroom or methods to otherwise reduce the student to teacher ratio. Beginning in the 2008–2009 school year, such plan shall provide for reductions in class size that, by the end of the 2011–2012 school year, will not exceed the prekindergarten through grade 12 class size targets prescribed by the Commissioner after consideration of the recommendation of an expert panel appointed to review class size research.

The Commissioner shall approve each contract meeting the provisions of section 100.13(c) and certify, for each contract, that the expenditure of additional aid or grant amounts is in accordance with Education Law section 211-d(2). Approval shall be given to contracts demonstrating to the Commissioner's satisfaction that the allowable programs selected:

(i) predominately benefit students with the greatest educational needs, including but not limited to: (a) LEP and ELL students; (b) students in poverty; and (c) students with disabilities;

(ii) predominately benefit students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools; and

(iii) are based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards.

Section 100.13(d) establishes the allowable programs and activities, including experimental programs. Section 100.13(d)(1) establishes general requirements, including that such programs and activities: (1) predominately benefit students with the greatest educational needs including, but not limited to: LEP and ELL students; students in poverty; and students with disabilities; (2) predominately benefit students in schools identified as requiring academic progress, in need of improvement, in corrective action, or restructuring and address the most serious academic problems in those schools; (3) be consistent with federal and State statutes and regulations governing the education of such students; (4) be developed in reference to practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards; (5) where applicable, be accompanied by high quality, sustained professional development focused on content pedagogy, curriculum development, and/or instructional design in order to ensure successful implementation of each program and activity; (6) ensure that expenditures of the contract amount shall be used to supplement and not supplant funds expended by the district in the base year for such purposes; (7) ensure that all additional instruction is provided by appropriately certified teachers or highly qualified teachers where required by section 120.6 of this Title, emphasizing skills and knowledge needed to facilitate student attainment of State learning standards; and (8) be coordinated with all other allowable programs and activities included in the district's contract as part of the district's comprehensive educational plan.

Section 100.13(d)(2) establishes criteria for specific allowable programs and activities, which shall include: (1) class size reduction for (a) the NYC school district and (b) all other school districts; (2) student time on task; (3) teacher and principal quality initiatives; (4) middle school and high school restructuring; and (5) full-day kindergarten or prekindergarten programs.

Section 100.13(d)(2)(i) establishes requirements for class size reduction, including special provisions for NYC. NYC must allocate some of its total contract amount to class size reduction according to a plan, included in their contract and approved by the Commissioner pursuant to section 100.13(c), to reduce the average class size for the following grade ranges: prekindergarten to grade three, grades four through eight, and grades nine through twelve, commencing in the 2007–2008 school year and ending in the 2011–2012 school year, to target levels recommended by the expert panel appointed by the Commissioner. Districts outside of NYC shall establish class size reduction goals in the 2007–2008 school year and demonstrate measurable progress towards meeting such goals; and beginning with the 2008–2009 school year, shall demonstrate measurable progress towards meeting the target levels recommended by the expert panel. The rule also mandates NYC give priority to prekindergarten through grade 12 students in schools requiring academic progress, correction, improvement or in restructuring and to overcrowded schools. Furthermore, it requires that classrooms created shall provide adequate and appropriate physical space to students and staff, among others. Class size reduction may be accomplished through the creation of additional classrooms and buildings, through assignment of more than one teacher to a classroom or, in NYC, by other methods to reduce the student to teacher ratio, as approved by the Commissioner.

Section 100.13(d)(2)(ii) provides that allowable programs and activities related to student time on task may be accomplished by: (1) lengthened school days, (2) lengthened school years and (3) dedicated instructional time, including individual intervention, tutoring and student support services.

Section 100.13(d)(2)(iii) prescribes requirements for teacher and principal quality initiatives, including: (1) recruitment and retention of teachers, (2) mentoring for teachers and principals in their first or second year of a new assignment, (3) incentive programs for teacher placement, (4) instructional coaches, and (5) school leadership coaches. Districts shall ensure that an appropriately certified, or highly qualified teacher where required under section 120.6, is in every classroom and an appropriately certified principal is assigned to every school.

Section 100.13(d)(2)(iv) provides that allowable programs and activities for middle and high school restructuring include: (1) instructional program changes to improve student achievement and attainment of the State learning standards and (2) structural organization changes. The section further requires that districts choosing to make organization changes must also make instructional program changes.

Section 100.13(d)(2)(v) provides that allowable programs and activities for full-day kindergarten or prekindergarten programs include: (1) a minimum full school day program, (2) a minimum full school day program with additional hours for children and families, (3) a minimum full school day program with additional hours in collaboration with community based agencies (prekindergarten only), and (4) classroom integration programs for students with disabilities (specifically for full-day prekindergarten).

Section 100.13(d)(3) lists the following requirements for experimental programs, not included in the allowable programs and activities described above: (1) a maximum percentage of the contract amount that may be used for experimental programs, (2) a plan must be submitted to the Commissioner, (3) the program must be based on an established theoretical base supported by research or other comparable evidence, (4) the implementation plan for an experimental program must be accompanied by a program evaluation plan based on empirical evidence to assess the impact on student achievement, and (5) the experimental program may be in partnership with an institution of higher education or other organization with extensive research experience and capacity.

Section 100.13(d)(3)(ii) states provides a maximum amount of up to $30 million dollars or twenty-five percent of the contract amount, whichever is less, that districts may use in the 2007–2008 school year to maintain existing programs and activities listed in Education Law section 211-d(3)(a).

Section 100.13(e) establishes criteria for the development of the contract for excellence pursuant to a public process, in consultation with parents or persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c, which shall include at least one public hearing. Special provisions for NYC's development of the contracts are included.

Section 100.13(f) establishes requirements to assure procedures are in place by which parents may bring complaints concerning implementation of a district's contract for excellence, including special provisions for the NYC.

Section 100.13(g) establishes requirements for the public reporting by districts of their school-based expenditures of total foundation aid.

Section 170.12(e)(1), relating to requirements of an annual audit of school district records, is amended to provide that, for schools required to prepare a contract for excellence pursuant to Education Law section 211-d, the annual audit for the year such contract is in effect shall also include a certification by the accountant or, where applicable, the NYC comptroller, in a form prescribed by the Commissioner, that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes.

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 8, 2007, the following substantial revisions were made to the proposed rule.

Section 100.13(a)(7) has been revised to replace the definition of a response to intervention program with a cross-reference to section 100.2(ii). Section 100.2(ii) was adopted by emergency action at the June Regents meeting, effective July 1, 2007, and now provides the definition of a response to intervention program.

Section 100.13(c)(2) has been revised to clarify that the allowable programs and activities selected by the district must be made pursuant to the requirements of section 100.13(d).

Section 100.13(c)(3) has been added to prescribe procedures for the amendment of contracts for excellence.

Sections 100.13(d)(1), 100.13(d)(2)(ii) and 100.13(d)(2)(iv) have been revised in response to public comment to clarify that visual arts, music, dance and/or theatre programs; career and technical education programs; programs involving the use of instructional technology; and after-school programs and summer camp programs offering supplemental instruction, tutoring, and/or other academic support and enrichment may be included as allowable programs and activities, provided the programs meet the applicable requirements of section 100.13(d) and are approved by the Commissioner pursuant to 100.13(c)(2).

Section 100.13(d)(2)(iii) has been revised to clarify that teacher and principal quality initiatives shall ensure that an appropriately certified teacher, or a highly qualified teacher where required by section 120.6 of this Title, is assigned to every classroom.

Section 100.13(d)(2)(iii)(a) has been revised in response to public comment to include within teacher and principal quality initiatives, programs and activities to recruit and retain appropriately certified principals.

Section 100.13(d)(2)(iii)(b) has been revised in response to public comment to also permit mentoring to improve the performance of teachers and principals who are not newly appointed, consistent with collective bargaining and other applicable requirements; and to delete the provision limiting mentoring to teachers and principals who are in their first or second year of a new assignment.

Section 100.13(d)(2)(iii)(c) has been revised to conform to Education Law section 211-d.

Section 100.13(d)(2)(iii)(e) has been revised in response to public comment to allow individuals holding school district administrator, school administrator and supervisor and/or school business administrator title certifications to be eligible to serve as school leadership coaches.

Section 100.13(d)(2)(iii)(d) has been revised in response to public comment to also permit instructional coaches to provide professional development to teachers in pedagogy and/or classroom management, to improve student attainment of State learning standards.

Section 100.13(d)(3)(i)(e) has been revised to make it an option, rather than a requirement, that experimental programs be in partnership with an institution of higher education or other organization with extensive research experience. While such partnerships are highly encouraged, it is recognized that some school districts seeking to implement experimental programs may be unable to find institutions and organizations with which to form such partnerships.

Section 100.13(d)(3)(i)(f) has been added to clarify that experimental programs involving the use of instructional technology may be included as allowable programs and activities, provided the programs meet the requirements of section 100.13(d)(3).

Section 100.13(e)(2) has been revised in response to public comment, and to ensure consistency with Education Law section 211-d(4), to clarify that the requirements in former section 100.13(e)(3) that the contracts for excellence for community districts in New York City shall be consistent with the citywide contract and be submitted by the community superintendent to the community district education council for review and comment at a public meeting, are applicable to the 2008–2009 school year and thereafter.

Section 170.12(e)(1) has been revised to clarify that the requirement for certification in a district's annual audit that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement and not supplant funds allocated by the district in the base year for such purposes, is applicable only to school districts required to prepare a contract for excellence pursuant to Education Law section 211-d.

The above revisions to the proposed rule do not require any changes to the previously published Regulatory Impact Statement.

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 8, 2007, the proposed rule has been substantially revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The above revision to the proposed rule does not require any revisions to the previously published Regulatory Flexibility Analysis.

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 8, 2007, the proposed rule has been substantially revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The above revision to the proposed rule does not require any revisions to the previously published Rural Area Flexibility Analysis.

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 8, 2007, the proposed rule has been substantially revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The proposed rule, as so revised, is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the rule that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

The agency received no public comment.