(i) Elementary instructional program-grades K through 6. Pupils in grades K - 6 shall participate in the physical education program as follows:

(a) all pupils in grades K-3 shall participate in the physical education program on a daily basis. All pupils in grades 4-6 shall participate in the physical education program not less than three times each week. The minimum time devoted to such programs (K-6) shall be at least 120 minutes in each calendar week, exclusive of any time that may be required for dressing and showering;

(b) pupils in grades 5-6 that are in a middle school shall participate in the physical education program a minimum of three periods per calendar week during one semester of each school year and two periods during the other semester, or a comparable time each semester if the school is organized in other patterns; or

(c) as provided in an equivalent program approved by the Commissioner of Education;

2. Paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education is amended, effective June 11, 2009, as follows:

(7) Basic code for extraclass athletic activities. Athletic participation in all schools shall be planned so as to conform to the following:

(i) General provisions. It shall be the duty of trustees and boards of education:

(a) to conduct school extra class athletic activities in accordance with this Part and such additional rules consistent with this basic code as may be adopted by such boards relating to items not covered specifically in this code. A board may authorize appropriate staff members to consult with representatives of other school systems and make recommendations to the board for the enactment of such rules;

(b) to make the extra class athletic activities an integral part of the physical education program;

(c) to [permit] appoint individuals, whether in a paid or non-paid (volunteer) status, to serve as coaches of interschool athletic teams, other than intramural teams or extramural teams, in accordance with the following:

(1) [certified] Certified physical education teachers may coach any sport in any school[;].

(2) [teachers] Teachers with coaching qualifications and experience certified only in areas other than physical education may coach any sport in any school, provided they have completed:

(i) the first aid requirement set forth in section 135.5 of this Part; and

(ii) an approved pre-service or in-service education program for coaches or will complete such a program within three years of appointment. Such program shall include an approved course in philosophy, principles and organization of athletics which shall be completed within two years after initial appointment as a coach. Upon application to the Commissioner of Education, setting forth the reasons for which an extension is necessary, the period in which to complete such training may be extended to no more than [five] seven years after such appointment. Such approved programs for coaches will consist of one of the following (credits and hours vary depending upon the contact and endurance involved in the sport): a department- approved college program of from two to eight credits; or a department approved in-service education program, conducted by schools, colleges, professional organizations or other recognized groups or agencies, from 30 to 120 clock hours; or an equivalent experience which is approved by the Commissioner of Education[;].

(iii) Coaches who have a lapse in service due to maternity leave, military leave, or other extenuating circumstances may apply in a format prescribed by the Commissioner for an additional extension to complete course work. Such application must set forth the reasons for which an extension is necessary. The period in which to complete such training shall be extended to no more than two additional years.

(3) [temporary] Temporary coaching license. Except as provided in subclause (4) of this clause and notwithstanding the provisions of section 80-5.10 of this Title, other persons with coaching qualifications and experience satisfactory to the board of education may be [employed] appointed as temporary coaches of interschool sport teams whether in a paid or non-paid (volunteer) status, when certified teachers with coaching qualifications and experience are not available, upon the issuance by the commissioner of a temporary coaching license. A temporary coaching license, valid for one year, will be issued under the following conditions:

(i) the superintendent of schools shall submit an application for a temporary coaching license, in which the inability of the district to obtain the services of a certified teacher with coaching qualifications and experience is demonstrated to the satisfaction of the commissioner;

(ii) candidates for initial temporary licensure shall have completed the first aid requirement set forth in section 135.5 of this Part prior to the first day of coaching;

(iii) candidates for the first renewal of a temporary license shall have completed or be enrolled in an approved course in philosophy, principles and organization of athletics;

(iv) candidates for any subsequent renewal of a temporary license shall have completed [or demonstrate evidence of satisfactory progress towards the completion of] an approved pre-service or in-service education program for coaches which shall include [an approved course in philosophy, principles and organization of athletics] approved courses in Health Sciences Applied to Coaching and Theory and Techniques of Coaching that is sport specific, within three years of appointment. Upon application in a format prescribed by the Commissioner of Education, setting forth the reasons for which an extension is necessary, the period in which to complete such training may be extended to no more than seven years after such appointment. Such approved programs for coaches shall consist of one of the following (credits and hours vary depending upon the contact and endurance involved in the sport): a department-approved college program of from two to eight credits; or a department approved in-service education program, conducted by schools, colleges, professional organizations or other recognized groups or agencies, from 30 to 120 clock hours; or an equivalent experience which is approved by the Commissioner of Education; and

(v) coaches who have a lapse in service due to maternity leave, military leave, or other extenuating circumstances may apply in a format prescribed by the Commissioner for an additional extension to complete course work. Such application must set forth the reasons for which an extension is necessary. The period in which to complete such training shall be extended to no more than two additional years.

(4) . . .

(5) . . .

(d) . . .

(e) . . .

(f) . . .

(g) . . .

(h) . . .

(i) . . .

(j) . . .

(k) . . .

(l) . . .

(m) . . .

(n) . . .

(o) . . .

(p) . . .

(q) . . .

(r) . . .

(s) . . .

(ii) Provisions for interschool athletic activities for pupils in grades 7 through 12. It shall be the duty of the trustees and boards of education to conduct interschool athletic competition for grades 7 through 12 in accordance with the following:

(a) . . .

(b) Interschool athletic competition for pupils in senior high school grades 9, 10, 11 and 12. Inter-high school athletic competition shall be limited to competition between high school teams, composed of pupils in grades 9 to 12 inclusive, except as otherwise provided in subclause (a)(4) of this subparagraph. Such activities shall be conducted in accordance with the following:

(1) Duration of competition. A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation, except as otherwise provided in this subclause. If a board of education has adopted a policy, pursuant to subclause (a)(4) of this subparagraph, to permit pupils in the seventh and eighth grades to compete in senior high school athletic competition, such pupils shall be eligible for competition during five consecutive seasons of a sport commencing with the pupil's entry into the eighth grade, or six consecutive seasons of a sport commencing with the pupil's entry into the seventh grade. A pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest. A pupil shall be eligible for interschool competition in grades 9, 10, 11 and 12 until the last day of the school year in which he or she attains the age of 19, except as otherwise provided in subclause (a)(4) of this subparagraph or in this subclause. The eligibility for competition of a pupil who has not attained the age of 19 years prior to July 1st may be extended under the following circumstances.

(i) If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, accident, or similar circumstances beyond the control of the student, such pupil's eligibility shall be extended accordingly in that sport. In order to be deemed sufficient, the evidence must include documentation showing the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

(ii) . . .

(2) . . .

(3) . . .

(c) . . .

1. STATUTORY AUTHORITY:

Section 101 of the Education Law continues the existence of the Education Department, with the Board of Regents as its head and authorizes the Board of Regents to appoint the Commissioner of Education as the chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.

Section 207 of the Education Law authorizes 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.

Subdivisions (1) and (2) of section 305 of the Education Law provide that the Commissioner of Education shall enforce all general and specific laws relating to the educational system of the State and execute all educational policies determined by the Board of Regents and invests the Commissioner with general supervision over all schools and institutions subject to the provisions of the Education Law or any statue relating to education.

Subdivision (5) of section 803 of the Education Law specifically authorizes the Regents to adopt rules determining the subjects to be included in courses of physical education provided pupils in all elementary and secondary schools, the period of instruction in each of such courses, the qualifications of teachers, and the attendance upon such courses of instruction.

Subdivision (2) of section 3204 of the Education Law specifies the course of study for public schools, and includes instruction in physical training.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the legislative objectives set forth in the aforementioned statutes by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school, establishing qualifications and appropriate training of coaches who may be appointed by boards of education for interschool athletic teams.

3. NEEDS AND BENEFITS:

The Office of the State Comptroller Audit on Physical Education recommended the change in regulation to accommodate districts with middle schools and the New York State Public High School Athletic Association and the New York State Athletic Administrators' Association have actively pursued a change in Commissioner's Regulation section 135.4(c)(7)(i)(c), relating to the educational requirements of coaches, the timelines to complete required course work and duration of competition for athletes.

The current regulations do not provide flexibility for school districts that have organized their 5th and 6th grades into a middle school. The proposed amendment would revise the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. This amendment would eliminate scheduling and staffing issues in middle level schools. The proposed change was listed in the recommendations of the Office of the State Comptroller Audit on Physical Education and recommended by administrators in middle level buildings.

Furthermore, the current regulations do not reflect equality of coaching requirements for certified teacher coaches and non-teacher coaches. In addition, new teachers are required to complete a Master's degree within five years of receiving their baccalaureate. This has affected the time available to new coaches to complete the required coaching courses and has affected the number of certified teacher coaches available to school districts for appointment as an interscholastic athletic coach. The proposed amendment would establish equal timelines for coaches to completing required course work, extend the time for completing requirements, and provide authority for additional extensions for individuals who have had a lapse in service due to extenuating circumstances and clarify extension of eligibility for interscholastic athletes. New York State Education Department oversight and control over the required instruction and coaching regulations would remain intact.

Additional changes in regulation on duration of competition are requested to clarify the extension of eligibility rule. The proposed amendment provides that in order to be an acceptable cause for extending a student's eligibility for interscholastic athletics, the chief school officer must present sufficient evidence that includes documentation showing that the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

4. COSTS:

(a) Costs to State government: none

(b) Costs to local government: none.

(c) Costs to private regulated parties: none.

(d) Costs to regulating agency for implementation and continued administration of this rule: none.

The proposed amendment does not impose any additional costs. The proposed amendment clarifies existing provisions in the regulation, including clarifying coursework requirements for coaches in paid or non-paid (volunteer) status and clarifying evidential requirements for extension of eligibility for interscholastic athletics. The proposed amendment also adds provisions permitting coaches to apply to the Commissioner for extensions to complete required coursework.

Furthermore, the proposed amendment provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. This will allow such districts to provide physical education in a cost-effective manner, consistent with a middle school organizational structure.

5. LOCAL GOVERNMENT MANDATES:

A school district must ensure that all students are provided the required instruction in physical education under section 803 of the Education Law. The proposed amendment provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school.

In addition, a school district that appoints an individual as an athletic coach for interschool athletic team must ensure that the individual possesses New York State Teacher Certification or Coaching Certification under section 803 of the Education Law, regardless of whether that individual is in a paid or non-paid (volunteer) status. The proposed amendment eliminates discrepancies between teacher-coaches and non-teacher coaches appointed by school districts.

A coach who has a lapse in service due to maternity leave, military leave or other extenuating circumstances may apply in a format prescribed by the Commissioner for an additional extension to complete course work, setting forth the reasons for which an extension is necessary.

In order to be an acceptable cause for extending a student's eligibility for interscholastic athletics, the chief school officer must present sufficient evidence that includes documentation showing that the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

6. PAPERWORK:

A coach who has a lapse in service due to maternity leave, military leave or other extenuating circumstances may apply in a format prescribed by the Commissioner for an additional extension to complete course work, setting forth the reasons for which an extension is necessary.

In order to be an acceptable cause for extending a student's eligibility for interscholastic athletics, the chief school officer must present sufficient evidence that includes documentation showing that the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

7. DUPLICATION:

The proposed amendment will not duplicate any other State or Federal statute or regulation.

8. ALTERNATIVES:

There were no significant alternatives. The proposed amendment would retain New York State Education Department oversight and control over the certification related to coaches in high schools, and would enable school districts to employ the most qualified candidates for coaching positions and clarify extension of athletic eligibility.

9. FEDERAL STANDARDS:

The proposed amendment does not exceed any minimum standards of the Federal government for the same or similar subject areas.

10. COMPLIANCE SCHEDULE:

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

Small Businesses:

The proposed amendment revises the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school, eliminates discrepancies between teacher-coaches and non-teacher coaches appointed by school districts and clarifies extension of eligibility for interscholastic athletics, and does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Since it is evident from the nature of the rule that it does not affect 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:

1. EFFECT OF RULE:

The proposed amendment applies to each of the 700 school districts, Charter Schools, and non-public schools in the State.

2. COMPLIANCE REQUIREMENTS:

A school district must ensure that all students are provided the required instruction in physical education under section 803 of the Education Law. The proposed amendment provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school.

In addition, a school district that appoints an individual as a coach for an interschool athletic team must ensure that the individual possesses New York State Teacher Certification or Coaching Certification under Article 803 of the Education Law, regardless of whether that individual is in a paid or non-paid (volunteer) status. The proposed amendment eliminates discrepancies between teacher-coaches and non-teacher coaches appointed by school districts. The proposed amendment also clarifies existing language, including clarifying extension of eligibility for interscholastic athletics, and adds provisions permitting coaches to apply to the Commissioner for extensions to complete required coursework.

A coach who has a lapse in service due to maternity leave, military leave or other extenuating circumstances may apply in a format prescribed by the Commissioner for an additional extension to complete course work, setting forth the reasons for which an extension is necessary.

In order to be an acceptable cause for extending a student's eligibility for interscholastic athletics, the chief school officer must present sufficient evidence that includes documentation showing that the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

3. PROFESSIONAL SERVICES:

A school district that appoints an individual as a coach for an interschool athletic team must ensure that the individual possesses New York State Teacher Certification or Coaching Certification under Article 803 of the Education Law, regardless of whether that individual is in a paid or non-paid (volunteer) status.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs. The proposed amendment clarifies existing provisions in the regulation, including clarifying coursework requirements for coaches in paid or non-paid (volunteer) status and clarifying evidential requirements for extension of eligibility for interscholastic athletics. The proposed amendment also adds provisions permitting coaches to apply in a format prescribed by the Commissioner for extensions to complete required coursework.

Furthermore, the proposed amendment provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. This will allow such districts to provide physical education in a cost-effective manner, consistent with a middle school organizational structure.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any additional technological requirements on school districts. Economic feasibility is addressed under the Compliance Costs section above.

6. MINIMIZING ADVERSE IMPACT:

The current regulations do not provide flexibility for school districts that have organized their 5th and 6th grades into a middle school. The proposed amendment would revise the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. This would eliminate scheduling and staffing issues in middle level schools.

In addition, current regulations do not reflect equal provisions for New York State Certification of certified coaches pursuant to Article 803 of the Education law, thereby causing confusion in obtaining such certification and for schools to appoint qualified personnel. The proposed amendment would enable school districts to appoint the most qualified candidates for coaching positions. The proposed amendment also clarifies evidential requirements for extension of eligibility for interscholastic athletics and adds provisions permitting coaches to apply to the Commissioner for extensions to complete required coursework.

7. LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed amendment were solicited from school districts through the offices of the district superintendents of each supervisory district in the State. Comments were also solicited from the New York State Public High School Athletic Association and the New York State Athletic Administrators Association.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all school districts in the State, including school districts in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

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

A school district must ensure that all students are provided the required instruction in physical education under section 803 of the Education Law. The proposed amendment provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school.

In addition, a school district that appoints an individual as a coach for an interschool athletic team must ensure that the individual possesses appropriate certification under Article 803 of the Education Law, regardless of whether that individual is in a paid or non-paid (volunteer) status. The proposed amendment eliminates discrepancies between teacher-coaches and non-teacher coaches appointed by school districts.

A coach who has a lapse in service due to maternity leave, military leave or other extenuating circumstances may apply in a format prescribed by the Commissioner for an additional extension to complete course work, setting forth the reasons for which an extension is necessary.

In order to be an acceptable cause for extending a student's eligibility for interscholastic athletics, the chief school officer must present sufficient evidence that includes documentation showing that the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs. The proposed amendment clarifies existing provisions in the regulation, including clarifying coursework requirements for coaches in paid or non-paid (volunteer) status and clarifying evidential requirements for extension of eligibility for interscholastic athletics. The proposed amendment also adds provisions permitting coaches to apply in a format prescribed by the Commissioner for extensions to complete required coursework.

Furthermore, the proposed amendment also provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. This will allow such districts to provide physical education in a cost-effective manner, consistent with a middle school organizational structure.

4. MINIMIZING ADVERSE IMPACT:

The current regulations do not provide flexibility for school districts that have organized their 5th and 6th grades into a middle school. The proposed amendment would revise the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. This would eliminate scheduling and staffing issues in middle level schools.

In addition, current regulations do not reflect equal provisions for New York State Certification of certified coaches pursuant to Article 803 of the Education Law, thereby causing confusion in obtaining such certification and for schools to appoint qualified personnel. The proposed amendment also clarifies evidential requirements for extension of eligibility for interscholastic athletics and adds provisions permitting coaches to apply to the Commissioner for extensions to complete required coursework.

Since these requirements must have State-wide application in order to ensure uniform, consistent practices relating to school districts' employment of coaches for interschool athletic teams, it is not feasible to impose a lesser standard on, or otherwise exempt, school districts and coaches in rural areas.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee and Nonpublic Schools Advisory Council, whose memberships include schools located in rural areas. Comments were also solicited from the New York State Public High School Athletic Association and the New York State Athletic Administrators Association.

The proposed amendment relates to required physical education instruction for elementary grades, coaching certification and qualifications and duration of competition extension of athletic eligibility, and will not have a substantial adverse impact on job or employment opportunities. The proposed amendment revises the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school, and specifies the qualifications of those to be appointed (whether paid or unpaid) by school districts to fill existing athletic coaching positions or openings but does not adversely affect the number of such positions or openings. The proposed amendment also clarifies evidential requirements for extension of eligibility for interscholastic athletics and adds provisions permitting coaches to apply to the Commissioner for extensions to complete required coursework. Since it is evident from the subject matter of the proposed amendment that the amendment 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.