Education Law section 211-d requires certain school districts identified in the statute 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.

Chapter 57 of the Laws of 2008 amended Education Law section 211-d to revise the criteria for determining which school districts are required to prepare a contract for excellence, and to add model programs for students with limited English proficiency as a sixth category of allowable programs and services.

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 and adopted the revised rule as an emergency action, effective July 31, 2007. A Notice of Emergency Adoption and Revised Rule Making was published in the August 15, 2007 State Register.

At their September 10, 2007, October 23, 2007 and January 14-15, 2008 meetings, the Board of Regents readopted the July emergency rule to ensure that the emergency rule remains in effect until the effective date of its adoption as a permanent rule.

At their March 17-18, 2008 meeting, the Board of Regents made substantial revisions to the proposed rule, in response to the Department's experience with the implementation of the Contracts for Excellence and discussions held with educational advocates and representatives from school boards and school administrators. A Notice of Revised Rule Making, reflecting these revisions, was published in the State Register on March 5, 2008.

Further additional revisions to the rule are now proposed, as set forth in the Revised Regulatory Impact Statement submitted herewith, in response to public comment on the March 5, 2008 revised rule making and in response to Chapter 57 of the Laws of 2008. Pursuant to 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. Since the Board of Regents meets at fixed intervals, 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 July 28–29, 2008 Regents meeting. However, the March emergency adoption will expire on May 19, 2008, 60 days after its filing with the Department of State on March 21, 2008. A lapse in the rule's effectiveness would disrupt implementation of the contract for excellence program under Education Law section 211-d, and adversely affect the preparation and approval of contracts for the 2008–2009 school year.

An eighth emergency adoption is therefore necessary for the preservation of the general welfare to immediately adopt revisions to the rule in response to public comment and statutory changes enacted pursuant to Chapter 57 of the Laws of 2008, and to otherwise ensure that the emergency rule that was adopted at the April 2007 Regents meeting, revised and readopted at the June and July Regents meetings, and readopted at the September and October 2007, and January and March 2008 Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule.

It is anticipated that the proposed rule will be presented for permanent adoption at the July 28-29, 2008 Regents meeting, which is the first scheduled meeting after expiration of the 30-day public comment period for revised rule makings.

The rule is necessary to implement Education Law section 211-d 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 rule was adopted as an emergency measure at the April Regents 2007 meeting, revised and readopted as an emergency rule at the June and July Regents meetings, readopted as an emergency action at the September and October 2007 and January 2008 Regents meetings, and revised and readopted as an emergency action at the March 2008 Regents meeting.

At their May 2008 meeting, the Board of Regents revised and readopted the March 2008 emergency rule as an emergency rule, effective May 19, 2008. The following is a summary of the emergency 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; (7) response to intervention program and (8) students with low academic achievement.

Section 100.13(b) provides that each contract shall be prepared pursuant to the requirements of subdivision (d), 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(c); and specify how the contract amount will be distributed in accordance with 100.13(b)(3);

(2) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(c), 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, (c) students with disabilities, and (d) students with low academic achievement;

(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.

Paragraph (3) of section 100.13(b) prescribes requirements for the use of contract for excellence funds.

The Commissioner shall approve each contract meeting the provisions of section 100.13 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;

(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(c) establishes the allowable programs and activities, including experimental programs. Section 100.13(c)(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, students with disabilities, and students with low academic achievement; (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(c)(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(c)(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(c)(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(c)(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(c)(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(c)(2)(v) is added to provide that allowable programs and activities for model programs for student with limited English proficiency include: (1) programs serving limited English proficiency students to address their learning needs by providing education in their native language, provide targeted programs to student who have resided in the United State for 7 years or longer and who are below grade level in reading, writing and other targeted areas, and provide support services to students transitioning into mainstream educational settings; (2) native language support; (3) new immigrant programs; (4) recruitment and retention programs for bilingual teachers and personnel staff; and (5) parent involvement programs.

Section 100.13(c)(2)(vi) 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(c)(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(c)(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(d) 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(e) 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(f) 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.

STATUTORY AUTHORITY:

Education Law sections 101, 207, 215, 305(1) and (2) and 211-d, and section 12 of Part A of Chapter 57 of the Laws of 2007 and section 2 of Part A of Chapter 57 of the Laws of 2008.

LEGISLATIVE OBJECTIVES:

The rule is necessary to implement Chapter 57 of the Laws of 2007 and Chapter 58 of the Laws of 2008.

NEEDS AND BENEFITS:

The rule establishes allowable programs and activities, reporting criteria, and other requirements for contracts for excellence.

COSTS:

a. Costs to State government: None.

b. Costs to local governments:

(i) Sustained Professional Development

Estimated costs to school districts of $400,000/year, assuming two extra days per year of sustained professional development for one to two dozen teachers per district at a cost of $125 per teacher per day.

(ii) Other Costs

Estimated costs to school districts of $9,435,000/year, depending upon allowable programs and activities selected, and assuming average need of each district to hire two new teachers at $53,000 per year/per teacher (salary plus benefits).

(iii) Public Process Costs

Cost scope and size will vary by district size, State region, contract allocation, and the nature of the proposed interventions, from an estimated lower cost of $1000 or less, based upon costs to a small rural district with the smallest total contract amount award Statewide, and a single school in accountability status, to an estimated upper cost of over $100,000, based upon costs to the New York City School district.

We anticipate minimal costs for preparation of the public comment record and assessment to be absorbed using existing staff and resources.

(iv) Complaint Process Costs

We anticipate additional, marginal costs for creating a complaint form and providing notice of complaint procedures, which are anticipated to be absorbed using existing staff and resources.

Translation costs for a small-to-medium size district may amount to a few hundred dollars. New York City might need several translations into the more than 100 languages spoken there. It is anticipated that translations for the complaint process can be included within other translating functions performed by the City's Department of Education, including centralized service in-house, in a cost-effective manner. However, any concomitant economies of scale this district might benefit from, would be offset by the higher costs of doing business there and the sheer number of languages to be translated. These two documents could also be posted to the district's website, or be sent out via other mailings, thereby incurring a small marginal cost.

Investigation, determination and appeal will vary by the size and scope of the contract and its allowable program activities. Assuming if initially two days of investigation were required for each million dollars of Foundation Aid subject to Contract for Excellence requirements, and districts paid, on average, $500 for a day of investigative services, and total Foundation Aid subject to Contract for Excellence requirements were $400 million in 2008-09 (this figure was $428 million in 2007–08), the cost statewide would be $400,000.

c. Costs to private, regulated parties: None.

d. Costs to the Department of implementation and continuing compliance:

There may be additional costs for convening an expert panel by the Commissioner to determine class size ranges, the cost of which will vary depending on the “formality” of the process.

LOCAL GOVERNMENT MANDATES:

Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.

Each school district shall post its contract for excellence, and any amended contract, on its website within 48 hours of submission to the commissioner for approval.

School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. The rule requires school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.

Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.

Districts shall prepare, and make available upon request, a record of public comment received. Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment. The public comment assessment shall be posted on a district website and made available upon request.

Districts shall develop a complaint form and instructions for use.

Districts shall provide reasonable notice to parents of students or persons in parental relation to students of the procedures for bringing a complaint concerning implementation of the contract for excellence, and provide translations of the complaint form and procedures into the languages other than English most commonly spoken in the district.

Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website, and make them available in schools and school district offices. Districts may use additional methods to provide notice, including providing copies in district mailings and distributions.

PAPERWORK:

School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.

Notice of the written public comment period and public hearing shall include:

(1) a general description of the contract;

(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;

(3) information where to obtain a copy of the proposed contract; and

(4) a description of the public comment process and public hearing process.

Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.

The rule requires school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.

Districts shall prepare, and make available upon request, a record of public comment received. Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.

Districts shall develop a complaint form and instructions for its use, including the locations and deadline for filing, and provide reasonable notice to parents or persons in parental relation, of the procedures for bringing a complaint concerning implementation of the district's contract.

Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district, and shall post, and make available in schools and school district offices, its notice of complaint procedures and complaint form on a district website, and may use additional methods to provide notice.

The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.

Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.

Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, written notice shall be provided the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.

DUPLICATION:

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

ALTERNATIVES:

An alternative proposal which was considered was to create a fiscal and program accountability system similar to the comprehensive education plan (CEP) process for districts, not meeting their Adequate Yearly Progress (AYP) targets pursuant to the federal No Child left Behind Act. However, a CEP-like process, which would have required large and comprehensive data collection and paperwork requirements, was rejected as too cumbersome, time-intensive and not flexible enough, relative to the simpler, automated, web-based application and monitoring approach enacted by this proposed rule.

FEDERAL STANDARDS:

The proposed rule does not exceed any minimum federal standards. There are no substantive federal standards that are applicable to this proposal insofar as there is no federal equivalent of the contract for excellence.

COMPLIANCE SCHEDULE:

Contracts for 2007–2008 were approved in November 2007 and will apply to expenditures through June 30, 2008. Districts will need to prepare and submit reports to the Department during Fall 2008 summarizing program activities, expenditures and results under their programs, and will need to have an independent audit performed and submitted to the Department.

Planning for the second year of the program (2008-2009) is ongoing and occurring concurrently. Changes in program regulations and requirements may occur as a result of the budgetary and legislative process. It is anticipated that a similar compliance scheduler under Chapter 57 of the Laws of 2008 will pertain, with districts required to submit or update their contracts by July 1, 2008 and the Department approving such contracts or updates by August 1, 2008.

Small Businesses:

The rule is necessary to implement Education Law § 211-d, relating to contracts for excellence by certain specified school districts, and does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on small businesses. Because it is evident from the rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required.

Local Governments:

EFFECT OF RULE:

The rule applies to 56 school districts in the State determined to meet the statutory requirements in Education Law § 211-d necessitating submission of a contract.

COMPLIANCE REQUIREMENTS:

Each district identified in statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on allowable programs and activities chosen, the rule mandates or requires certain actions.

School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.

Each district must post its contract for excellence, and any amended contract, on its website within 48 hours of submission to the commissioner.

Districts must establish a 30-day public comment period, and procedures for public hearings on proposed contracts, and provide reasonable notice to parents/persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law § 211-c.

Notice of the public comment period and public hearing shall include:

(1) a general description of the contract;

(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;

(3) information where to obtain a copy of the proposed contract; and

(4) a description of the public comment and public hearing process.

The rule requires school districts to provide reasonable notice to the public of each public hearing; to provide public notice of hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and provide for participation by any interested party.

Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.

Districts shall prepare, and make available upon request, a record of public comment received. Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.

Districts shall develop a complaint form for complaints concerning contract implementation, and instructions for use, including locations and filing deadline. Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district, and post its notice of complaint procedures and complaint form on a district website, make them available in schools and school district offices, and may use additional methods to provide notice.

The building principal, community superintendent or superintendent, as applicable, shall notify complainant in writing of the complaint determination, including the basis for such determination, within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.

Upon appeal, the superintendent or community superintendent, as applicable, shall notify complainant in writing of the appeal determination, including the basis for such determination, and an explanation of appeal procedures.

Upon appeal to the trustees/board of education or chancellor, written notice shall be provided of the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law § 310.

PROFESSIONAL SERVICES:

Depending on allowable programs and activities chosen, districts may be required to procure experts in: teacher professional development, curriculum and/or instructional design, school improvement and other related tasks and professional functions.

COMPLIANCE COSTS:

The rule is necessary to implement Education Law § 211-d and does not impose any significant, additional costs beyond those inherent in the statute.

The new requirements will result in additional costs, as follows:

(i) Sustained Professional Development

Assuming the need for two extra days per year of sustained professional development for contract of excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, it is estimated there might be a total annual cost for all of the districts of $400,000 per year (for purposes of this calculation, NYC was treated as thirty-four districts—one high school district, one special education district and thirty-two community school districts).

(ii) Other Costs

Depending on a district's selection of allowable programs and activities, there may be additional costs. Particular activities where the cost could be large include: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-based intervention; and analyzing, gathering and compiling the necessary research to support their proposed contract for excellence programs and activities. If it is estimated that each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $9,435,000 for all contract districts.

(iii) Public Process Costs

Costs are associated with providing notice of the public comment period and public hearings, including translations where applicable, and preparation of the public comment record and assessment. Cost scope and size will vary by district size, State region, contract allocation, and the nature of the proposed interventions.

For example, in the case of Alexander, a small rural district with the smallest total contract amount award Statewide, and a single school in accountability status, the costs should be a few thousand dollars or less. District mailings, newspaper advertising and website postings can be included with existing, similar routine district tasks, resulting in marginal added expense; and there should be little/no need for translations. The average cost of a column inch of advertising space in similar rural is around $7. A half page, posted twice during the comment period, results in about $1,000 costs: ($7 per inch × 70 inches × 2 days = $980).

In New York City, the costs would be much greater, including translation services, and greater reliance on print media to reach individuals lacking computer access. A half page advertisement posted twice in the following publications would impose a cost in excess of $115,000: African-American Observer ($59 per inch × 70 inches × 2 = $8,260); El Diario/La Prensa ($60 × 70 × 2 = $8,400); and the New York Post ($711 × 70 × 2 = $99,540).

We anticipate minimal costs for preparation of the public comment record and assessment, to be absorbed using existing staff and resources.

(iv) Complaint Process Costs

We anticipate additional, marginal costs for creating a complaint form and providing notice of complaint procedures, which are anticipated to be absorbed using existing staff and resources.

Translation costs for a small-to-medium size district may amount to a few hundred dollars: professional translation of a 1000-word legal document into Latin-American Spanish could be procured for $165; and the same document for Korean, Haitian-Creole, Caribbean-Spanish and Chinese could cost $650. New York City might need several translations into the more than 100 languages spoken there. It is anticipated that translations for the complaint processes can be included within other translating functions performed by the City's Department of Education, including centralized service in-house, in a cost-effective manner. However, any concomitant economies of scale this district might benefit from, would be offset by the higher costs of doing business there and the sheer number of languages to be translated. These documents could be posted to the district's website, or sent out via other mailings, thereby incurring a small marginal cost.

The rule requires districts make reasonable efforts to investigate complaints by parents and notify complainants of their determination within 30 days of its receipt, and provides for appeal procedures. Costs are hard to estimate and should vary by size and scope of the contract and allowable program activities. We anticipate the amount of professional, including legal and perhaps investigative or inspector general staff time (in the case of the NYC Department of Education) would not be insignificant in light of the importance of the contract for excellence and its prominence as a school improvement initiative. We might expect more complaints initially and fewer over time as the public process for developing contracts results in more public buy-in to the programs in which districts are investing. So, for example, if initially two days of investigation were required for each million dollars of Foundation Aid subject to Contract for Excellence requirements, and districts paid, on average, $500 for a day of investigative services, and total Foundation Aid subject to Contract for Excellence requirements were $400 million in 2008-09 (this figure was $428 million in 2007–08), the cost statewide would be $400,000.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The rule imposes very few compliance and no paperwork requirements not already imposed by the authorizing statute. Those reporting requirements imposed by the statute are made feasible in that they are generally automated and web-based, using data entry screens and edit checks. Nothing would prohibit districts from using funds to procure professional services, such as certified professional accountants, software developers or experts in curriculum and instruction, or education research, all of whom may be necessary to meet the rule's requirements.

MINIMIZING ADVERSE IMPACT:

The rule is necessary to implement Education Law § 211-d and is applicable to all identified school districts throughout the State. Consequently, the major provisions of the rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt districts from the rule's coverage. A substantial effort was made to involve districts in the development of this rule, and to the extent possible, the rule has been drafted incorporating their comments, to provide flexibility in implementing many of the provisions.

SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

The Department sent guidance memos to school districts and their component schools on April 4, April 9, June 21 and June 25, 2007, seeking the input, impact, questions and feedback of the rule on districts, as well as communicating in broad terms, how the contract would be implemented. Moreover, on April 12, 2007 districts were invited to meet with key Department stakeholders, including teleconferencing abilities for those district personnel unable to travel to Albany. Department staff were available to respond to questions from 9 AM to 7:30 PM, from April 9-12. Copies of the rule were also provided to District Superintendents with the request they distribute it to school districts for review and comment.

Following approval of the contracts by the Commissioner in November 2007, a meeting was held in Troy, New York on December 19, 2007 to engage in collaborative discussions with representatives of each Contract for Excellence school districts. 82 superintendents and school district representatives attended the full-day session, along with many others participating via a web cast. Constructive feedback was sought and received on what worked well in the first year and areas for improvement. Changes to the proposed 2008-2009 legislation, regulations and the on-line contract system have been made and will continue to develop as a direct result of these meetings and discussions.

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed rule applies to school districts in the State identified pursuant to Education Law § 211-d as having to file a contract for excellence, 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. Eight (8) of the school districts that will have to file contracts for excellence for the 2007–2008 school year are rural school districts.

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

Each district identified in statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on allowable programs and activities chosen, the rule mandates or requires certain actions.

School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.

Each district must post its contract for excellence, and any amended contract, on its website within 48 hours of submission to the commissioner.

Districts must establish a 30-day public comment period, and procedures for public hearings on proposed contracts, and provide reasonable notice to parents/persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law § 211-c.

Notice of the public comment period and public hearing shall include:

(1) a general description of the contract;

(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;

(3) information where to obtain a copy of the proposed contract; and

(4) a description of the public comment and public hearing process.

The rule requires school districts to provide reasonable notice to the public of each public hearing; to provide public notice of hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and provide for participation by any interested party.

Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.

Districts shall prepare, and make available upon request, a record of public comment received. Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.

Districts shall develop a complaint form for complaints concerning contract implementation, and instructions for use, including locations and filing deadline. Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district, and post its notice of complaint procedures and complaint form on a district website, make them available in schools and school district offices, and may use additional methods to provide notice.

The building principal, community superintendent or superintendent, as applicable, shall notify complainant in writing of the complaint determination, including the basis for such determination, within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.

Upon appeal, the superintendent or community superintendent, as applicable, shall notify complainant in writing of the appeal determination, including the basis for such determination, and an explanation of appeal procedures.

Upon appeal to the trustees/board of education or chancellor, written notice shall be provided of the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law § 310.

Depending on which allowable programs and activities are chosen, districts may be required to hire or procure experts in: teacher professional development, curriculum and/or instructional design, school improvement and other related tasks and professional functions.

COSTS:

The rule is necessary to implement Education Law § 211-d and does not impose any significant, additional costs beyond those inherent in the statute.

The new requirements will result in additional costs, as follows:

(i) Sustained Professional Development

Assuming the need for two extra days per year of sustained professional development for contract of excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, it is estimated there might be a total annual cost for all of the districts of $400,000 per year (for purposes of this calculation, NYC was treated as thirty-four districts — one high school district, one special education district and thirty-two community school districts).

(ii) Other Costs

Depending on a district's selection of allowable programs and activities, there may be additional costs. Particular activities where the cost could be large include: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-based intervention; and analyzing, gathering and compiling the necessary research to support their proposed contract for excellence programs and activities. If it is estimated that each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $9,435,000 for all contract districts.

(iii) Public Process Costs

Costs are associated with providing notice of the public comment period and public hearings, including translations where applicable, and preparation of the public comment record and assessment. Cost scope and size will vary by district size, State region, contract allocation, and the nature of the proposed interventions.

For example, in the case of Alexander, a small rural district with the smallest total contract amount award Statewide, and a single school in accountability status, the costs should be a few thousand dollars or less. District mailings, newspaper advertising and website postings can be included with existing, similar routine district tasks, resulting in marginal added expense; and there should be little/no need for translations. The average cost of a column inch of advertising space in similar rural is around $7. A half page, posted twice during the comment period, results in about $1,000 costs: ($7 per inch × 70 inches × 2 days = $980).

In New York City, the costs would be much greater, including translation services, and greater reliance on print media to reach individuals lacking computer access. A half page advertisement posted twice in the following publications would impose a cost in excess of $115,000: African-American Observer ($59 per inch × 70 inches × 2 = $8,260); El Diario/La Prensa ($60 × 70 × 2 = $8,400); and the New York Post ($711 × 70 × 2 = $99,540).

We anticipate minimal costs for preparation of the public comment record and assessment, to be absorbed using existing staff and resources.

(iv) Complaint Process Costs

We anticipate additional, marginal costs for creating a complaint form and providing notice of complaint procedures, which are anticipated to be absorbed using existing staff and resources.

Translation costs for a small-to-medium size district may amount to a few hundred dollars: professional translation of a 1000-word legal document into Latin-American Spanish could be procured for $165; and the same document for Korean, Haitian-Creole, Caribbean-Spanish and Chinese could cost $650. New York City might need several translations into the more than 100 languages spoken there. It is anticipated that translations for the complaint processes can be included within other translating functions performed by the City's Department of Education, including centralized service in-house, in a cost-effective manner. However, any concomitant economies of scale this district might benefit from, would be offset by the higher costs of doing business there and the sheer number of languages to be translated. These documents could be posted to the district's website, or sent out via other mailings, thereby incurring a small marginal cost.

The rule requires districts make reasonable efforts to investigate complaints by parents and notify complainants of their determination within 30 days of its receipt, and provides for appeal procedures. Costs are hard to estimate and should vary by size and scope of the contract and allowable program activities. We anticipate the amount of professional, including legal and perhaps investigative or inspector general staff time (in the case of the NYC Department of Education) would not be insignificant in light of the importance of the contract for excellence and its prominence as a school improvement initiative. We might expect more complaints initially and fewer over time as the public process for developing contracts results in more public buy-in to the programs in which districts are investing. So, for example, if initially two days of investigation were required for each million dollars of Foundation Aid subject to Contract for Excellence requirements, and districts paid, on average, $500 for a day of investigative services, and total Foundation Aid subject to Contract for Excellence requirements were $400 million in 2008-09 (this figure was $428 million in 2007–08), the cost statewide would be $400,000.

MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Chapter 57 of the Laws of 2007 and is applicable to all identified school districts throughout the State. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt school districts in rural areas from coverage by the rule. Nevertheless, a substantial effort was made to involve school districts, including rural districts, in the development of this rule, and to the extent possible, the proposed rule has been drafted incorporating their comments, to provide flexibility in implementing many of the provisions.

RURAL AREA PARTICIPATION:

The proposed rule was submitted for discussion and comment to the Department's Rural Education Advisory Committee that includes representatives of school districts in rural areas as well as the Rural Schools Association. Guidance memos to school districts and their component schools were sent out from the Senior Deputy Commissioner for P-16 education of the State Education Department on April 4, April 9, June 21 and June 25, 2007. In these documents, the Education Department sought the input, impact, questions and feedback of the proposed rule on districts as well as communicating in broad terms, how the contract would be implemented. Moreover, on April 12, 2007 districts were invited to meet with key Department stakeholders, including teleconferencing abilities for those district personnel unable to travel to Albany. In these memoranda, the Department communicated that staff in the Department's Office of School Operations and Management Services were available to respond to questions from 9 AM to 7:30 PM, from April 9-12. Copies of the proposed rule were also provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment.

Following approval of the contracts by the Commissioner in November 2007, a meeting was held in Troy, New York on December 19, 2007 to engage in collaborative discussions with representatives of each Contract for Excellence school districts. 82 superintendents and school district representatives attended the full-day session, along with many others participating via a web cast. Constructive feedback was sought and received on what worked well in the first year and areas for improvement. Changes to the proposed 2008-2009 legislation, regulations and the on-line contract system have been made and will continue to develop as a direct result of these meetings and discussions.

The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007 and amended by Chapter 57 of the Laws of 2008, 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.

Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the State Education Department (SED) received substantial public comment. A summary of the public comment follows:

I. Public Participation/Public Process

1. In response to comment to allow all interested parties to participate in the public process for development of Contracts for Excellence and require public hearings be held pursuant to Open Meetings Law requirements, section 100.13(e)(2)(ii)(b) was revised to require school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require districts to provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party including, but not limited to, parents and persons in parental relation to students, teachers, administrators and distinguished educators. However, the provisions in 100.13(e)(2)(i) relate to the consultation process for development of contracts for excellence, and statute restricts participation in such instance to parents and persons in parental relation to students, teachers, administrators and distinguished educators. Therefore, no changes have been made to such provisions.

2. In response to comment to require that contracts submitted to the commissioner for approval be made publicly available, section 100.13(d)(2)(iv)(a) has been added to require each school district to post its contract on the district's website, within 48 hours of submission to the Commissioner.

3. In response to a comment that the Commissioner should review district's public process to ensure compliance with 100.13(d) before approving their contract, section 100.13(b)(2) has been revised to clarify that the Commissioner's approval will be based upon the contract meeting the provisions of the entire section 100.13, which would include the public process provisions. In addition, this will be incorporated into the superintendent's certification statement on the on-line Contracts for Excellence system.

4. In response to comment to require any amendment resulting in a reallocation of resources of greater than 5% be subject to public comment requiring a 15 day notice and a 15 day comment period, section 100.13(b)(4)(iii) has been added to require the amended contract be posted on a district website within 48 hours of submission. In addition, SED notes the amended contract would be subject to the complaint process.

Additional comments were determined to require revisions to statute before regulations could be adopted. These include: (1) allow NYC county level public hearings to incorporate the community district education council public meeting; (2) require all complaints be initiated with filing with community superintendent; and (3) extend NYC public comment process to school districts in rest of State.

Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) require transcripts of public hearing comments be posted on district's website, (2) require consultation with professional educators, community-based organizations, education experts, bilingual and special education coordinators; (3) public hearings and meeting be accessible to those with limited English proficiency; (4) require districts to record persons making comments and include in public comment assessment; (5) provide in NYC, a public hearing shall be held within each county of the city, a transcript be included when contract is submitted to commissioner, and that each community district contract be submitted by community superintendent to community school district education council for review at a public meeting; (6) regulation doesn't provide for public process to develop contracts; (7) delete requirement that school district must respond to all substantive comments; and (8) school districts should provide public comment assessment and public hearing transcript when they submit contracts to commissioner.

II. Complaint procedures

1. In response to comment to require school districts to make complaint forms available in other forms than just on the school district website, section 100.13(e)(2)(ii)(c) has been revised to require districts to make copies of the complaint notice and complaint form available in schools and district offices.

One comment requests provision be added that no reprisal of any kind may be taken by a school district or any employee of a school district against any person bringing a complaint under this procedure. While SED agrees that no reprisals may be taken, remedies exist elsewhere in the law and it is not necessary to include this provision in the regulations.

Some comments require a revision to statutes, including: (1) allowing individual students and staff and representative organizations to bring complaints concerning district's implementation of the contract; (2) provide for expedited appeal procedure directly to Commissioner; (3) clarify that use or availability of the procedures provided in regulation shall not be construed as limiting exercise of any of the rights or remedies available to any person under state or federal law.

Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation sufficient to address the comments' concerns, or disagreed with the comments. These include: (1) complaint form and complaint process too complicated and burdensome for parents; (2) require consultation with parent and community organizations when developing complaint form; (3) allow complaints to be brought at any time during school year of contract; (4) require school district to provide written response if it fails to investigate and respond to complaint; (5) require school district to publicly report complaint resolutions; (6) specify criteria for when notice is deemed reasonable; and (7) require notice of public comment include information about contract planning and approval process;.

III. Class Size Reduction

1. In response to comment that public needs better information on the number of additional teachers hired and additional classes formed to lower class size, and to what levels class sizes have been reduced as a result, SED agrees and will study this with the Commissioner's class size panel.

2. In response to comment that data on number of classes, average class size and number of classroom teachers be provided for baseline year and each year thereafter, section 100.13(c)(2)(i)(a)(1)(ii) has been revised to provide for such data for the 2007–2008 school year and continuing for each school year thereafter up to and including the 2011–2012 school year.

3. In response to comment that NYC should report staffing of classroom teachers in core instructional course, SED notes this recommendation can be considered in Commissioner's class size panel's deliberations

4. In response to comment that NYC be required to maintain effort despite budget cuts, SED notes that pursuant to recent amendment of Education Law § 211-d, all contract districts are required under the 2008-2009 application system to maintain base year contract amount of expenditures, allowing for reallocation to other approval program areas.

Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) parents should be allowed to comment on class size reduction plan; and (2) capital plan should be aligned with class size reduction plan; and (3) hold NYC to class size standards at beginning of school year.

IV. English Language Learners (ELL)

1. In response to comment to require district and school level expenditure projections/reports to outline the amount of funds serving ELL's, as well as data on students served, teachers/staff hired, programs established or expanded, class size reductions and focused professional development hours, SED notes these comments will be taken into account as options are developed for ELL allowable programs.

2. In response to comment to expand allowable activities under the existing five contract program areas, to include ELL-focused strategies: more teachers; teacher recruitment/retention; professional development; extended school day, Saturday academy and Summer School; books and learning resources in various languages; students with interrupted formal education intervention and instruction; develop appropriate tests and monitor instruction and assessment implementations; guidance, mentoring and social support services for immigrant/ELL youth; high school readiness and dropout prevention; immigration/LEP parent engagement and leadership training, SED notes that consistent with recent amendment to Education Law section 211-d, the regulation has been revised to add a sixth category of allowable programs and services to provide for model programs for students with limited English proficiency, Including programs serving limited English proficient students, native language support, new immigrant programs, recruitment and retention of bilingual general education and special education teachers, English as a Second Language teachers, bilingual teachers of students with speech and language disabilities, and bilingual pupil personnel staff, and parent involvement.

Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) establish separate “predominately benefit” ELL benchmark; and (2) add ELL students who have not achieved sufficient scores on the limited English proficiency test to the definition of “students with low academic achievement.”

V. Contract Approval and Amendment

1. In response to comment that limiting contract funds to five allowable programs limits districts' ability to continue systemic reform, SED notes that, consistent with the recent amendment to Education Law § 211-d, the regulation has been revised to provide for a sixth allowable program for LEP model programs. Any additional programs would require statutory change.

2. In response to comment that SED's approval needed for any district's reallocation of last year's contract funds to an allowable program, SED agrees and notes this is being incorporated into the 2008-2009 application system.

Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) amendment process be more flexible and clarify amendment provisions; and (2) provide for 30-day public comment period once contracts are submitted to commissioner; and (3) specify date for SED contract approval notification.

VI. Allocation, Targeting and Maintenance of Effort

1. In response to comment to clarify “contract amount” to provide for second year contract for excellence requirements enacted by recent amendments to Education Law § 211-d, SED notes proposed rule will be revised to refer to annual contract amount.

2. In response to comment that performance or achievement goals are not enough, and that there needs to be measures of inputs as well, SED agrees and notes this has been incorporated in the web-based reporting system consistent with statutory requirements.

3. In response to comment to revise applicability provisions to also include schools that are below the school district (or State) average on the ELA and Math assessment or the 4-year graduation rate, SED notes regulation has been revised in response to recent amendments to Education Law § 211-d to delete specific applicability provisions in the regulation, and instead reference the statute for purposes of determining applicability.

4. In response to comment to allow schools to target funds to predominately benefit students having the greatest educational needs who are enrolled in schools identified under section 100.2(p) and not only to students enrolled in SURR schools, SED agrees and notes that the reference to SURR schools was just an example of acceptable strategies, and does not preclude others.

A comment that cap for maintenance of existing programs be changed to 25% for all districts, would require a statutory change.

Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) that large city school districts outside NYC should be allowed to use funds for district-wide initiatives; (2) provide that schools in improvement status shall receive at least pro rata share based on share of actual high need, low-performing students, instead of share of total district need; (3) include contract terms in each school's comprehensive education plan; and (4) regulation's lack of specificity resulted in non-uniform response from districts and in may cases lacked transparency.