Furthermore, Education Law section 3204(2-a)(1), as amended by section 10 of Chapter 57 of the Laws of 2007, requires each school district which is receiving total foundation aid to develop a comprehensive plan consistent with requirements as the Commissioner may establish in regulations to meet the educational needs of pupils of limited English proficiency. Such plan shall include a description of the programs, activities and services used to meet the educational needs of such pupils that comply with the regulations of the Commissioner governing such programs.

Consistent with Education Law section 3204(2-a)(1), as amended by section 10 of Chapter 57 of the Laws of 2007, the proposed amendment will require school districts receiving total foundation aid to develop a comprehensive plan for the education of students with limited English proficiency. Each school district receiving total foundation aid must develop a comprehensive plan consistent with Education Law section 3204(2-a)(1) and Part 154 of the Commissioner's Regulations, commencing with the 2007–2008 school year. As a result, it is critically important to expedite the submission and approval of the proposed amendment.

The proposed amendment was adopted at the June 25–26, 2007 Regents meeting as an emergency measure, effective June 29, 2007, in order to immediately establish requirements for the development of comprehensive plans for students with limited English proficiency by school districts pursuant to Education Law section 3204, as amended by Chapter 57 of the Laws of 2007, and to otherwise conform Part 154 of the Commissioner's Regulations to the statute, so that school districts may timely prepare and implement such plans pursuant to statutory requirements for the 2007–2008 school year. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on June 27, 2007.

The proposed rule has been adopted as a permanent rule at the September 10–11, 2007 Regents meeting. Pursuant to the State Administrative Procedure Act section 203(1), the earliest the adopted rule can become effective is upon its publication in the State Register on October 3, 2007. However, the June emergency rule will expire on September 26, 2007, 90 days after its filing with the Department of State on June 29, 2007. A lapse in the rule's effectiveness would disrupt development of comprehensive plans and other services provided for students with limited English proficiency by school districts pursuant to Education Law section 3204, as amended by Chapter 57 of the Laws of 2007.

A second emergency adoption is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the June Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule.

Part 154

[APPORTIONMENT AND] SERVICES FOR PUPILS WITH LIMITED ENGLISH PROFICIENCY

2. Paragraph (1) of subdivision (d) of section 154.2 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(1) The language arts instructional component shall include English language arts instruction and English as a second language instruction. The learning standards for English language arts (ELA) and English as a second language (ESL), and key ideas and performance indicators for such standards, shall serve as the basis for the [(ELA)] ELA and ESL curriculums, respectively.

(i) …

(ii) …

3. Section 154.3 of the Regulations of the Commissioner of Education is repealed, effective September 27, 2007.

4. A new section 154.3 of the Regulations of the Commissioner of Education is added, effective September 27, 2007, as follows:

(1) the district's philosophy for the education of such pupils;

(2) administrative practices and procedures to:

(i) diagnostically screen pupils for limited English proficiency pursuant to Part 117 of this Title;

(ii) identify such pupils with limited English proficiency;

(iii) annually evaluate each such pupil including each such pupil's performance in content areas to measure the pupil's academic progress.

(3) a description of the nature and scope of the bilingual and/or English as a second language instructional program and services available to limited English proficient pupils;

(4) a description of the criteria used by the district to place limited English proficient pupils in appropriate bilingual or free-standing English as a second language programs;

(5) a description by building of the curricular and extracurricular services provided to pupils with limited English proficiency;

(6) a description of the district and school level procedures for the management of the program, including staffing, site selection, parental notification, coordination of funds, training and program planning;

(1) an assurance:

(i) of access to appropriate instructional and support services for such pupils, including guidance programs pursuant to section 100.2(j) of this Title;

(ii) that each such pupil has equal opportunities to participate in all school programs and extracurricular activities as non-limited English proficient pupils;

(iii) that the minimum ESL and ELA requirements prescribed in section 154.2(d) of this Part for the freestanding ESL programs are adhered to;

(iv) that the minimum ESL, ELA and NLA requirements prescribed in section 154.2(e) of this Part for bilingual education programs are adhered to;

(v) that teachers in the district's free-standing ESL and bilingual education programs are appropriately certified pursuant to Part 80 of this Title;

(vi) the district will comply with the requirements of this Part and the provisions of the Education Law governing programs for pupils with limited English proficiency;

(vii) that programs for limited English proficient pupils will be administered in accordance with applicable federal and state law and regulations and the district's comprehensive plan;

(2) a report by building of the number of pupils identified as being limited English proficient in the preceding year, including their grade level, native language and instructional program;

(3) a report by building of the number of limited English proficient pupils served in the preceding year, including their grade level, native language and instructional program;

(4) a report by building of the number of pupils that took the NYSESLAT in the preceding school year;

(5) a report by building of the number and qualifications of teachers and support personnel providing services to pupils with limited English proficiency;

(6) a fiscal report containing such data concerning the preceding school year as may be required by the commissioner; and

(7) beginning in July 2008 and annually thereafter, a report on the expenditure of state, local and federal funds in the prior year on programs, activities and services for pupils with limited English proficiency.

(1) Bilingual Education Program. Each school district which has an enrollment of 20 or more pupils with limited English proficiency of the same grade level assigned to a building, all of whom have the same native language which is other than English, shall provide such pupils with bilingual education programs.

(2) Free-standing English as a Second Language Program. Each school district which has pupils with limited English proficiency of the same grade level assigned to a building, but which does not have 20 of such pupils with the same native language which is other than English, shall provide either a free-standing English as a second language program, or a bilingual education program to such pupils.

(k) Parental notification. (1) The parents or other persons in a parental relation to a pupil designated as limited English proficient shall be notified, in English and the language they understand, of their child's placement in an instructional bilingual or free-standing English as a second language program and their options as set forth in paragraphs (2) and (3) of this subdivision. School districts offering programs to limited English proficient pupils shall make an effort to meet with the parents or other persons in parental relation to such pupils, at least twice a year, to help them understand the goals of the program and how they might help their children.

(2) The parents or other persons in parental relation to a pupil designated as limited English proficient shall have the option to withdraw their child only from participation in an instructional bilingual education program, provided that:

(i) the parents or other persons in parental relation to a pupil designated as limited English proficient meet with the school principal along with the school or district supervisor of bilingual education to discuss and explain further the nature, purposes, educational values of the program and the skills required of personnel;

(ii) as a minimum such pupil shall participate in a free-standing English as a second language program.

(3) In a school building where the number of eligible pupils does not require the offering of a bilingual education program, parents or other persons in parental relation to a pupil identified as limited English proficient shall have the option of transferring their child to a school within the district provided such program is available at such other school. A parent who chooses not to exercise the transfer option shall be informed that his or her child shall participate in a free-standing English as a second language program.

(4) Parents or other persons in parental relation to a pupil designated as limited English proficient who is a new entrant, as defined in section 117.2 (d) of this Title, shall be provided an orientation session on the state standards, assessments, school expectations and general program requirements for the bilingual education program and the free-standing English as a second language program. Such orientation shall take place within the first semester of their child's enrollment in the school and, when needed, shall be provided in the first language of the pupil's parents or other persons in parental relation to the pupil.

5. Section 154.4 of the Regulations of the Commissioner of Education is repealed, effective September 27, 2007.

STATUTORY AUTHORITY:

Education Law section 207 empowers the Board of Regents and the Commissioner of Education to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the State Education Department by law.

Education Law section 215 authorizes the Board of Regents and the Commissioner of Education to require school districts to prepare and submit reports containing such information as they may prescribe.

Education Law section 2117(1) empowers the Board of Regents and the Commissioner of Education to require school districts to submit any information they deem appropriate.

Education Law section 3204(2) and (2-a) provide for instructional programs for pupils with limited English proficiency to be conducted in accordance with regulations of the Commissioner. Education Law section 3204(3) authorizes the Commissioner to establish standards for the instruction of children with limited English proficiency, and section 3204(6) requires the Commissioner to establish such standards by regulation.

Education Law section 3204(2-a)(1), as amended by section 10 of Chapter 57 of the Laws of 2007, requires each school district which is receiving total foundation aid to develop a comprehensive plan consistent with requirements as the Commissioner may establish in regulations to meet the educational needs of pupils of limited English proficiency. Such plan shall include a description of the programs, activities and services used to meet the educational needs of such pupils that comply with the regulations of the Commissioner governing such programs.

LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement Education Law section 3204(2-a)(1), as amended by section 10 of Chapter 57 of the Laws of 2007.

NEEDS AND BENEFITS:

The proposed amendment is necessary to comply with the requirements of section 10 of Chapter 57 of the Laws of 2007. Changes to the Education Law related to the education of pupils with limited English proficiency, as enacted under Chapter 57 of the Laws of 2007, are no longer in line with the current Part 154 regulations. Current Part 154 regulations prescribe requirements for districts claiming state limited English proficiency aid as well as for districts not claiming state limited English proficiency aid for the education of pupils with limited English proficiency. Pursuant to Chapter 57 of the Laws of 2007, school districts will no longer claim State limited English proficiency aid. Beginning in 2007–08, all districts will receive total foundation aid. Each school district that receives total foundation aid must develop a comprehensive plan consistent with Education Law section 3204(2-a)(1) and Part 154 of the Commissioner's Regulations.

COSTS:

(a) Costs to State government: None.

(b) Cost to local government: It is anticipated that any costs to school districts would be minimal and will be absorbed using existing staff and resources, and/or State funded technical assistance resources.

(c) Cost to private regulated parties: None.

(d) Cost to Regulating agency: It is anticipated that the Statewide cost associated with the training and submission of required documents will be minimal and will be covered through State and federal funds.

For the 2008–2009 school year and thereafter, it is expected that costs associated with the development of the comprehensive plans will decrease since some of the activities were only carried out initially during the training phases and development of the initial plan.

LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to conform Part 154 of the Regulations of the Commissioner of Education to Education Law section 3204(2-a), as amended by Chapter 57 of the Laws of 2007.

Section 154.3 prescribes the specific requirements for school districts receiving total foundation aid. The amendment requires that each school district receiving foundation aid:

(1) develop a comprehensive plan. The plan must include the district's philosophy for the education of pupils with limited English proficiency (LEP) and the administrative practices and procedures to screen, identify and annually evaluate LEP pupils. The plan must also include a description of the bilingual or English as a Second Language (ESL) program to be implemented, the criteria for placement in such programs, the types of curricular and extracurricular activities and the program management procedures;

(2) distribute school related information to parents in the language that they understand;

(3) submit assessment data to the Department as prescribed by the Commissioner;

(4) refer students suspected of having a disability to the Committee on Special Education;

(5) submit a signed statement of assurances certifying that pupils with limited English proficiency will have access and equal opportunities to participate in appropriate instructional programs, extracurricular activities and support services; that such pupils will be provided the minimum language arts requirements prescribed under Part 154 of the Commissioner's Regulations; that teachers in free-standing and bilingual education programs are appropriately certified; and that programs for pupils with limited English proficiency will be administered in accordance with applicable statutes, regulations and the district's plan;

(6) submit a report by building of the number of students identified, served and who took the New York State English as a Second Language Achievement Test;

(7) submit a report of the number of teachers and their qualifications;

(8) beginning in July 2008 and annually thereafter, submit a report of the expenditures of State, local and federal funds in the prior year for programs and activities for pupils with limited English proficiency.

PAPERWORK:

Each school district receiving total foundation aid shall develop a comprehensive plan for the education of pupils with limited English proficiency. Such plan shall be kept on file in the district and made available for Department review upon request of the Department. The plan shall include:

(1) the district's philosophy for the education of such pupils;

(2) administrative practices and procedures to:

(i) diagnostically screen pupils for limited English proficiency pursuant to Part 117 of this Title;

(ii) identify such pupils with limited English proficiency;

(iii) annually evaluate each such pupil including each such pupil's performance in content areas to measure the pupil's academic progress.

(3) a description of the nature and scope of the bilingual and/or English as a second language instructional program and services available to limited English proficient pupils;

(4) a description of the criteria used by the district to place limited English proficient pupils in appropriate bilingual or free-standing English as a second language programs;

(5) a description by building of the curricular and extracurricular services provided to pupils with limited English proficiency; and

(6) a description of the district and school level procedures for the management of the program, including staffing, site selection, parental notification, coordination of funds, training and program planning.

The school district shall submit to the Commissioner the results of the annual evaluation of limited English proficient pupils, including test data and any additional data required by the Commissioner, in the format and timeframe specified by the Commissioner.

The school district shall submit to the Commissioner the following documents in a form and by a date specified by the Commissioner:

(1) an assurance:

(i) of access to appropriate instructional and support services for such pupils, including guidance programs pursuant to section 100.2(j) of the Commissioner's Regulations;

(ii) that each pupil has equal opportunities to participate in all school programs and extracurricular activities as non-limited English proficient pupils;

(iii) that the minimum ESL and ELA requirements prescribed in section 154.2(d) of the Commissioner's Regulations for the freestanding ESL programs are adhered to;

(iv) that the minimum ESL, ELA and NLA requirements prescribed in section 154.2(e) of this Part for bilingual education programs are adhered to;

(v) that teachers in the district's free-standing ESL and bilingual education programs are appropriately certified pursuant to Part 80 of the Commissioner's Regulations;

(vi) that the district will comply with the requirements of Part 154 and the provisions of the Education Law governing programs for pupils with limited English proficiency;

(vii) that programs for limited English proficient pupils will be administered in accordance with applicable federal and state law and regulations and the district's comprehensive plan;

(2) a report by building of the number of pupils identified as being limited English proficient in the preceding year, including their grade level, native language and instructional program;

(3) a report by building of the number of limited English proficient pupils served in the preceding year, including their grade level, native language and instructional program;

(4) a report by building of the number of pupils that took the NYSESLAT in the preceding school year;

(5) a report by building of the number and qualifications of teachers and support personnel providing services to pupils with limited English proficiency;

(6) a fiscal report containing such data concerning the preceding school year as may be required by the Commissioner; and

(7) beginning in July 2008 and annually thereafter, a report on the expenditure of state, local and federal funds in the prior year on programs, activities and services for pupils with limited English proficiency.

DUPLICATION:

The proposed amendment will not duplicate or exceed any other existing federal or State statute or regulation.

ALTERNATIVES:

The proposed amendment is necessary to comply with the requirements of Education Law section 3204(2-a), as amended by section 10 of Chapter 57 of the Laws of 2007. There are no significant alternatives and none were considered.

FEDERAL STANDARDS:

The proposed amendment does not exceed any federal rule in a similar area.

COMPLIANCE REQUIREMENTS:

The proposed amendment provides that the new requirements for the development of the comprehensive plan be fully implemented by the 2007–2008 school year.

Small Businesses:

The proposed amendment relates to the establishment of revised requirements for the development of comprehensive plans for pupils with limited English proficiency by school districts receiving total foundation aid. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on small businesses. No further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local governments:

EFFECT OF RULE:

The proposed amendment applies to all school districts in the State that receive total foundation aid.

COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to conform Part 154 of the Regulations of the Commissioner of Education to Education Law section 3204(2-a), as amended by Chapter 57 of the Laws of 2007.

Section 154.3 prescribes the specific requirements for school districts receiving total foundation aid. The amendment requires that each school district receiving foundation aid:

(1) develop a comprehensive plan. The plan must include the district's philosophy for the education of pupils with limited English proficiency (LEP) and the administrative practices and procedures to screen, identify and annually evaluate LEP pupils. The plan must also include a description of the bilingual or English as a Second Language (ESL) program to be implemented, the criteria for placement in such programs, the types of curricular and extracurricular activities and the program management procedures;

(2) distribute school related information to parents in the language that they understand;

(3) submit assessment data to the Department as prescribed by the Commissioner;

(4) refer students suspected of having a disability to the Committee on Special Education;

(5) submit a signed statement of assurances certifying that pupils with limited English proficiency will have access and equal opportunities to participate in appropriate instructional programs, extracurricular activities and support services; that such students will be provided the minimum language arts requirements prescribed under Part 154 of the Commissioner's Regulations; that teachers in free-standing and bilingual education programs are appropriately certified; and that programs for pupils with limited English proficiency will be administered in accordance with applicable statutes, regulations and the district's plan;

(6) submit a report by building of the number of students identified, served and who took the New York State English as a Second Language Achievement Test;

(7) submit a report of the number of teachers and their qualifications;

(8) beginning in July 2008 and annually thereafter, submit a report of the expenditures of State, local and federal funds in the prior year for programs and activities for pupils with limited English proficiency.

PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional services requirements on school districts.

COMPLIANCE COSTS:

It is anticipated that any costs to school districts would be minimal and will be absorbed using existing staff and resources, and/or State funded technical assistance resources.

It is further anticipated that the Statewide cost associated with the training of required documents will be minimal and will be covered through State and federal funds. For the 2008–2009 school year and thereafter, it is expected that costs associated with the development of the comprehensive plans will decrease since some of the activities were only carried out initially during the training phases and development of the initial plan.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any additional technological requirements on school districts. Economic feasibility is addressed above under compliance costs.

MINIMIZE ADVERSE IMPACT:

The proposed rule is necessary to implement Education Law section 3204(2-a), as amended by Chapter 57 of the Laws of 2007. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing requirements or to exempt school districts and eligible agencies from coverage by the rule. Nevertheless, in establishing the uniform provisions necessary to conform Part 154 of the Commissioner's Regulations to the statute, the Department has considered a variety of options and selected those approaches that will achieve the goal of increased program quality while minimizing additional costs and compliance requirements upon school districts. Since school districts are directly responsible for the instruction of LEP pupils, it is not feasible to apply any of the approaches for minimizing adverse economic impacts pursuant to State Administrative Procedure Act section 202-b(1).

LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule will be solicited from school districts through the offices of the district superintendents of each supervisory district in the State. The proposed amendment will also be posted on the Department's New York State Bilingual Education (NYSBEN) web site to facilitate a wide distribution. Additionally, the proposed amendment will be shared with the Department's Committee of Practitioners on the Education of English Language Learners, the regional Bilingual Education Technical Assistance Centers and selected professional organizations.

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all school districts in the State that receive total foundation aid, 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.

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

The proposed amendment is necessary to conform Part 154 of the Regulations of the Commissioner of Education to Education Law section 3204(2-a), as amended by Chapter 57 of the Laws of 2007.

Section 154.3 prescribes the specific requirements for school districts receiving total foundation aid. The amendment requires that each school district receiving foundation aid:

(1) develop a comprehensive plan. The plan must include the district's philosophy for the education of pupils with limited English proficiency (LEP) and the administrative practices and procedures to screen, identify and annually evaluate LEP pupils. The plan must also include a description of the bilingual or English as a Second Language (ESL) program to be implemented, the criteria for placement in such programs, the types of curricular and extracurricular activities and the program management procedures;

(2) distribute school related information to parents in the language that they understand;

(3) submit assessment data to the Department as prescribed by the Commissioner;

(4) refer students suspected of having a disability to the Committee on Special Education;

(5) submit a signed statement of assurances certifying that pupils with limited English proficiency will have access and equal opportunities to participate in appropriate instructional programs, extracurricular activities and support services; that such students will be provided the minimum language arts requirements prescribed under Part 154 of the Commissioner's Regulations; that teachers in free-standing and bilingual education programs are appropriately certified; and that programs for pupils with limited English proficiency will be administered in accordance with applicable statutes, regulations and the district's plan;

(6) submit a report by building of the number of students identified, served and who took the New York State English as a Second Language Achievement Test;

(7) submit a report of the number of teachers and their qualifications;

(8) submit a report of the expenditures of State, local and federal funds in the prior year for programs and activities for pupils with limited English proficiency.

The proposed amendment does not impose any additional professional services requirements on school districts.

COMPLIANCE COSTS:

It is anticipated that any costs to school districts would be minimal and will be absorbed using existing staff and resources, and/or State funded technical assistance resources.

It is further anticipated that the Statewide cost associated with the training of required documents will be minimal and will be covered through State and federal funds. For the 2008–2009 school year and thereafter, it is expected that costs associated with the development of the comprehensive plans will decrease since some of the activities were only carried out initially during the training phases and development of the initial plan.

MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Education Law section 3204(2-a), as amended by Chapter 57 of the Laws of 2007. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing requirements or to exempt school districts and eligible agencies from coverage by the rule. Nevertheless, in establishing the uniform provisions necessary to conform Part 154 of the Commissioner's Regulations to the statute, the Department has considered a variety of options and selected those approaches that will achieve the goal of increased program quality while minimizing additional costs and compliance requirements upon school districts. Because this amendment implements statutory provisions that are applicable to school districts across the State, it was not possible to provide for a lesser standard or an exemption for school districts in rural areas.

RURAL AREA PARTICIPATION:

The proposed amendment will be sent for review and comment to members of the Department's Rural Advisory Committee, which includes representatives from rural areas. The proposed amendment will also be posted on the Department's New York State Bilingual Education (NYSBEN) web site to facilitate a wide distribution. Additionally, the proposed amendment will be shared with the Department's Committee of Practitioners on the Education of English Language Learners, the regional Bilingual Education and Technical Assistance Centers and selected professional organizations.

The proposed amendment relates to the establishment of revised requirements for the development of comprehensive plans for pupils with limited English proficiency by school districts receiving total foundation aid, and will not have an adverse impact on jobs or employment activities. Because it is evident from the nature of the proposed amendment that it will have no 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.