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

Amendment of sections 100.2(p), 120.2, 120.3 and 120.4 of Title 8 NYCRR.

No Child Left Behind Act of 2001(NCLB) - school accountability.

To implement the NCLB Differentiated Accountability Pilot Program.

The Board of Regents proposes to amend subdivision (p) of section 100.2 of the Regulations of the Commissioner of Education, subdivisions (g)-(i) of section 120.2; subdivisions (a) and (g) of section 120.3; and subdivisions (b) and (f) of section 120.4 of the Regulations of the Commissioner of Education, effective December 10, 2009, to conform the Commissioner's Regulations with New York State's approval to participate in the No Child Left Behind (NCLB) Differentiated Accountability Pilot Program as granted by the United States Department of Education, particularly in terms of revising school accountability to increase the percentage of schools designated for Improvement that are able to make adequate yearly progress (AYP) for two consecutive years and be returned to Good Standing.

The substantive amendments to the regulations are as follows:

Section 100.2(p)(2)(ii)(a) is amended to replace the term "identified" with "designated" and to replace the phrase "school requiring academic progress" with "school in Improvement, Corrective Action or Restructuring."

Section 100.2(p)(5)(vii) is amended to replace the term "identified" with "designated" and to replace the phrase " a school requiring academic progress" with "a school in Improvement (year 1)."

The current paragraph 100.2(p)(6), School Requiring Academic Progress, is repealed and a new paragraph 100.2(p)(6), Differentiated Accountability for Schools, is added, beginning with the 2009-2010 school year. More specifically, the new paragraph 100.2(p)(6) will:

(1) integrate federal and State accountability systems;

(2) reduce the current number of school accountability categories by eliminating dual Title I and non-Title I streams of improvement;

(3) collapse identifications for improvement into three simplified accountability phases; Improvement, Corrective Action and Restructuring, based upon the number of years that a school failed to make adequate yearly progress on an accountability performance criterion and/or accountability indicator;

(4) further differentiate each phase into three categories of intervention: Basic, Focused and Comprehensive, based upon the number of accountability groups that failed to make adequate yearly progress in an accountability performance criterion and/or accountability indicator for which a school has been identified;

(5) determine a school's accountability designation for the 2009-2010 school year based upon the school's accountability status for the 2008-2009 school year and the school's AYP for the 2007-2008 and 2008-2009 school years;

(6) provide schools with diagnostic tools, planning strategies, and supports and interventions specific to that phase in the improvement process and the school's category of need;

(7) allow for differentiation in the accountability process, permitting schools and districts to prepare and implement two-year school improvement/corrective action/restructuring plans that best match a school's designation;

(8) better align the School Under Registration Review (SURR) and NCLB processes and ensure that schools with systemic and persistent failure fundamentally restructure or close;

(9) maximize SED's limited resources and utilize the resources of the University of the State of New York (USNY) to assign School Quality Review Teams, Joint Intervention Teams, and Distinguished Educators to schools in improvement; strengthen the capacity of districts to assist schools to improve; and

(10) empower parents by increasing combined participation in Public School Choice (PSC) and Supplemental Educational Services (SES) by providing for SES in the first year of a school's identification for improvement and PSC only after an identified school has failed to make AYP.

Section 100.2p(9) is amended to reference subparagraph 100.2(p)(5)(vi) rather than 100.2(p)(5)(vii) due to general reorganization of the section.

Section 100.2p(10) is amended to set forth the action that is to be taken when a school has been designated as Improvement, Corrective Action, or Restructuring and has been placed on registration review. More specifically, under the amended regulations, a school designated as Improvement (year 1) or Corrective Action (year 1) shall modify its plan to meet the requirements of a restructuring plan for implementation no later than the beginning of the next school year following the year identified for registration review. The amended regulations also provide that a school designated as Restructuring (advanced) may be warned of revocation of registration unless an acceptable plan for closure or phase out has been submitted. In addition, a school identified for registration review may be identified for phase out or closure if after two full academic years of implementing a restructuring plan progress has not been demonstrated.

Section 100.2p(11) is amended to eliminate the provision allowing a board of education to replace a school under registration review with a redesigned school, and to provide for the phase out or closure of such.

Conforming amendments are also made to section 120.2(g), (h) and (i), section 120.3 (a) and (g) and section 120.4(b) and (f), for purposes of ensuring consistency with the above amendments to section 100.2(p).

Substantial revisions were made in section 100.2(p)(6)(iv).

Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234, (518) 473-8296, email: [email protected]

Johanna Duncan-Poitier, Senior Deputy Comm of Educ. P-16, State Education Department, State Education Building Annex Room 875, 89 Washington Avenue, Albany, NY 12234, (518) 474-5915, email: [email protected]

30 days after publication of this notice.

Since publication of the Notice of Proposed Rule Making in the State Register on July 1, 2009, the following revisions were made to the proposed rule:

In sections 100.2(p)(6)(iv)(a)(2)(i), 100.2(p)(6)(iv)(b)(2)(i) and 100.2(p)(6)(iv)(c)(2)(i), references that school improvement, corrective action, and school restructuring plans in New York City be approved by "both the New York City Board of Education and the community school board for schools under the jurisdiction of the community school district" were replaced with references to approval "by the Chancellor or the Chancellor's designee" in order to conform to the governance structure of the City School District of the City of New York, as provided in Chapter 345 of the Laws of 2009. Similar changes were also made in section 100.2(p)(10)(i) and (iii) and section 100.2(p)(11)(ii).

In section 100.2(p)(6)(iv)(a)(2)(v) and (vi), and in section 100.2(p)(6)(iv)(b)(2)(iv), references to 20 U.S.C. section 6316(b)(3)(A)(i-x) and to 20 U.S.C. section 6316(b)(7)(C)(iv)(I-VI), were updated to refer to the most recent United States Code edition available for such sections, as follows: "United States Code, 2006 Edition, Volume 13; Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2008."

In section 100.2(p)(6)(v), references to "supplemental education services" was replaced with the correct term "supplemental educational services."

The above changes do not require any further changes to the previously published Regulatory Impact Statement.

Since publication of the Notice of Proposed Rule Making in the State Register on July 1, 2009, revisions were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement.

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

Since publication of the Notice of Proposed Rule Making in the State Register on July 1, 2009, revisions were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement.

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

Since publication of the Notice of Proposed Rule Making in the State Register on July 1, 2009, revisions were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement.

The proposed rule, as so revised, is necessary to conform the Commissioner's Regulations with New York State's approval to participate in the No Child Left Behind (NCLB) Differentiated Accountability Pilot Program as granted by the United States Department of Education. The proposed revised rule applies to school districts, boards of cooperative educational services (BOCES) and charter schools, and implements the NCLB Differentiated Accountability Pilot Program in order to increase the percentage of schools designated for Improvement that are able to make adequate yearly progress for two consecutive years and be returned to Good Standing. Local educational agencies, including school districts, BOCES and charter schools, are required to comply with the requirements of the NCLB as a condition to their receipt of federal funding under Title I of the Elementary and Secondary Education Act of 1965, as amended.

The proposed revised rule 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 Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 1, 2009, the Department received the following comments on the proposed rule.

1. COMMENT:

Replace references in the proposed rule that school improvement, corrective action, and school restructuring plans in New York City be approved by "both the New York City Board of Education and the community school board for schools under the jurisdiction of the community school district" with references to approval "by the Chancellor or the Chancellor's designee(s)." In addition, revise similar references elsewhere in the proposed rule to provide for approval or action by "the Chancellor or Chancellor's designee."

DEPARTMENT RESPONSE:

The suggested changes are consistent with the New York City School District governance structure, as set forth in the recently enacted Chapter 345 of the Laws of 2009. Accordingly, the proposed rule has been revised, as further described in the Statement Concerning the Regulatory Impact Statement submitted herewith, to refer to the Chancellor or Chancellor's designee.

2. COMMENT:

Revise provision in section 100.2(p)(6)(iv)(a)(3) to provide that on-site reviews for schools designated as Improvement/Focused or Improvement/Comprehensive shall be "assisted" by school quality review teams, rather than "conducted" by a school quality review team.

DEPARTMENT REPONSE:

The Department disagrees. The proposed rule is consistent with the Differentiated Accountability plan as approved by the United States Department of Education in January 2009, which provides: "This on-site SQR review is conducted by the SQR team focusing on the accountability measure(s) and student groups identified." Further, this rule was written to best ensure that on-site reviews are conducted in a like manner throughout the State. The on-site reviews result in recommendations that focus on the actions the identified schools must take to improve student achievement in the identified content areas and subgroups that failed to meet AYP.

3. COMMENT:

Revise provision in section 100.2(p)(6)(iv)(b)(1), relating to participation in curriculum audits by schools initially designated for the Corrective Action phase, to provide that such audits shall be in a form and content "approved" by the Commissioner, rather than "prescribed" by the Commissioner.

DEPARTMENT RESPONSE:

The Department disagrees. Once a school has reached the level of Corrective Action in Differentiated Accountability, the Department believes the form and content of the curriculum audit must be prescribed by the commissioner in order to establish a consistent, uniform, State-wide process for conducting the audits and thereby ensure the alignment of instruction to the NY State Learning Standards and assessments for the accountability measures/student groups identified as failing to make adequate yearly progress (AYP) for four or more years.