The proposed amendment will advance initiatives of inclusion of students with disabilities in the overall academic experience by allowing these students who would otherwise not be able to participate in interscholastic athletic competition due to their age or years in school to participate in a sport for an additional season if they have not yet graduated as a result of their disability delaying their education. This amendment is designed to offer students with disabilities continued socialization with teammates during practice and games and to further develop the student’s skills and personal abilities associated with participation in such sport, all while assuring the safety of the given student and the other students competing in the sport and preserving fair athletic competition.

The proposed amendment was adopted at the July 2010 Regents meeting as an emergency action, effective July 27, 2010, in order to timely and effectively implement the waiver process for the 2010-2011 school year. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on August 11, 2010. The proposed amendment was revised in response to public comment and, as so revised, adopted as second emergency action at the October 2010 Regents meeting, effective October 26, 2010. A Notice of Revised Rule Making was published in the State Register on November 3, 2010.

The proposed amendment has been adopted as a permanent rule at the December 2010 Regents meeting. Pursuant to the State Administrative Procedure Act, the earliest the adopted rule can become effective is after its publication in the State Register on January 5, 2011. However, the emergency rule which took effect on October 26, 2010 will expire on December 25, 2010. The expiration of the emergency rule would disrupt administration of the waiver process for participation in senior athletic competition by students with disabilities during the 2010-2011 school year.

Therefore, a third emergency action is necessary for the preservation of the general welfare in order to ensure that the emergency rule adopted at the October 2010 Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule, in order to avoid disruption to the administration of the waiver process for participation in senior athletic competition by students with disabilities during the 2010-2011 school year.

(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, or except as authorized by a waiver granted under clause (d) of this subparagraph to a student with a disability. 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) or clause (d) 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 that is a direct result of the illness, accident or other circumstance beyond the control of the student, the pupil will be required to attend school or one or more additional semesters in order to graduate.

(ii) If the chief school officer demonstrates to the satisfaction of the section that the pupil's failure to enter competition during one or more seasons of a sport is caused by such pupil's enrollment in a national or international student exchange program or foreign study program, that as a result of such enrollment the pupil will be required to attend school for one or more additional semesters in order to graduate, and that the pupil did not enter competition in any sport while enrolled in such program, such pupil's eligibility shall be extended accordingly in such sport.

2. Clause (d) of subparagraph (ii) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education is added, effective December 26, 2010, as follows:

(d) Waiver from the age requirement and four-year limitation for interschool athletic competition for students with disabilities in senior high school grades 9, 10, 11, and 12. For purposes of this clause, the term non-contact sport shall include swimming and diving, golf, track and field, cross country, rifle, bowling, gymnastics, skiing and archery, and any other such non-contact sport deemed appropriate by the Commissioner. A student with a disability, as defined in section 4401 of the Education Law, who has not yet graduated from high school may be eligible to participate in a senior high school noncontact athletic competition for a fifth year under the following limited conditions:

(1) such student must apply for and be granted a waiver to the age requirement and four-year limitation prescribed in subclause (b) (1) of this subparagraph. A waiver shall only be granted upon a determination by the superintendent of schools or chief executive officer of the school or school system, as applicable, that the given student meets the following criteria:

(i) such student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more;

(ii) such student is otherwise qualified to compete in the athletic competition for which he or she is applying for a waiver and the student must have been selected for such competition in the past;

(iii) such student has not already participated in an additional season of athletic competition pursuant to a waiver granted under this subclause;

(iv) such student has undergone a physical evaluation by the school physician, which shall include an assessment of the student's level of physical development and maturity, and the school physician has determined that the student's participation in such competition will not present a safety or health concern for such student; and

(v) the superintendent of schools or chief executive officer of the school or school system has determined that the given student's participation in the athletic competition will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

(2) Such student's participation in the additional season of such athletic competition shall not be scored for purposes of such competition.

1. STATUTORY AUTHORITY:

Education Law section 101 charges the Department with the general management and supervision of public schools and the educational work of the State.

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

Education Law sections 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education.

Education Law section 803 provides the Board of Regents with overall authority over physical education instruction in schools.

Education Law section 3204(2) and (3) relates to compulsory education.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement policy enacted by the Board of Regents relating to the age and four-year limitations for senior high school athletic competition.

3. NEEDS AND BENEFITS:

The proposed amendment will provide a waiver for a student with a disability to participate in senior high school athletic competition for an additional season despite the age and four-year limitations prescribed in section 135.4 of the Commissioner's regulations. The proposed amendment will advance initiatives of inclusion by allowing students with disabilities who would otherwise not be able to participate in interscholastic athletic competition due to their age or years in school to participate in a sport for an additional season if they have not graduated as a result of their disability delaying their education. This amendment will offer these students continued socialization with teammates and continued opportunity to develop the skills and abilities associated with his or her participation in such sport.

4. COSTS:

(a) Costs to State government: It is anticipated that the waiver provided by the proposed amendment will be exercised in limited circumstances and that appeals from a decision regarding a waiver will be limited, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff.

(b) Costs to local government: It is anticipated that the waiver provided by the proposed amendment will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

(c) Costs to private regulated parties: For the same reasons as discussed in (b) above, it is anticipated that costs to private schools will be minimal and capable of being absorbed using existing staff and resources.

(d) Costs to the regulating agency for implementation and administration of this rule: There will be minimal costs imposed on the State Education Department to implement and enforce the regulations. These costs will be absorbed by existing staff.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment will require local school districts to implement a process for granting waivers to students with disabilities to participate for an additional season in high school athletic competition if such a student meets certain criteria. Specifically, the amendment requires that (1) the student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more, (2) the student previously was selected for and competed in the sport which he or she is applying for a waiver, (3) the student is otherwise qualified to compete in such sport, (4) the student has not previously been granted such a waiver, (5) the student has undergone and passed an evaluation by the school physician, and (6) the superintendent of schools or chief executive officer, as applicable, has determined that the student's participation will not adversely affect the opportunity of the other students to successfully compete in the competition.

The superintendent of schools or the chief executive officer of a private school will be required to determine whether the given student meets all such criteria and whether the student will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

It is anticipated that where applicable, a decision regarding a waiver may be appealed to the New York State Public High School Athletic Association in accordance with the Association's rules. As applicable in accordance with Education Law section 310, such a decision may be appealed to the Commissioner of Education.

6. PAPERWORK:

This proposed amendment will impose minimal additional paperwork requirements on local school districts and on the State.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or federal regulations.

8. ALTERNATIVES:

The State Education Department considered applying the waiver to both non-contact and contact sports, but determined that this was not appropriate given substantial concerns for student safety. There is likely to be significant differences in physical maturity and development between a 14 year-old and a 19 or 20 year-old. Moreover, in light of selection/classification, a 12 or 13 year-old may be competing in a sport with a 19 or 20 year-old, which presents a significant difference in not only physical maturity but athletic ability and performance. These physical disparities pose a substantial risk of harm to the given student and the other students competing in the sport. Therefore, this alternative was considered, but rejected.

9. FEDERAL STANDARDS:

There are no related federal standards.

10. COMPLIANCE SCHEDULE:

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

1. EFFECT OF RULE:

The proposed amendment applies to each school district within the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment will provide a waiver for a student with a disability to participate in senior high school athletic competition for an additional season despite the age and four-year limitations prescribed in section 135.4 of the Commissioner's regulations. The proposed amendment will require local school districts to implement a process for granting waivers to students with disabilities to participate for an additional season in such competition if such student meets certain eligibility criteria. Specifically, the amendment requires that (1) the student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more, (2) the student previously was selected for and competed in the sport which he or she is applying for a waiver, (3) the student is otherwise qualified to compete in such sport, (4) the student has not previously been granted such a waiver, (5) the student has undergone and passed an evaluation by the school physician, and (6) the superintendent of schools or chief executive officer, as applicable, has determined that the student's participation will not adversely affect the opportunity of the other students to successfully compete in the competition.

The superintendent of schools or the chief executive officer of a private school will be required to determine whether the given student meets such criteria and whether the student will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

It is anticipated that where applicable, a decision regarding a waiver may be appealed to the New York State Public High School Athletic Association in accordance with the Association's rules. As applicable in accordance with Education Law section 310, such a decision may be appealed to the Commissioner of Education.

The proposed amendment is expected to only impose minimal reporting, recordkeeping and other compliance requirements associated with reviewing and deciding a student's application for a waiver. It is anticipated that the waiver will be exercised in limited circumstances, given the restrictions on eligibility for such waiver and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

3. PROFESSIONAL SERVICES:

The proposed amendment imposes no additional professional service requirements on school districts.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any significant costs on school districts. The proposed amendment will require local school districts to implement a process for granting waivers to students with disabilities to participate for an additional season in such competition if such student meets certain eligibility criteria. The superintendent of schools or the chief executive officer of a private school will be required to determine whether the given student meets such criteria and whether the student will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

It is anticipated that the waiver provided by the proposed amendment will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

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

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement educational policy as determined by the Board of Regents by permitting, under certain specified circumstances, a waiver from the age requirement and four-year limitation for interschool athletic competition to students with disabilities in senior high school grades 9, 10, 11, and 12 who seek to participate in interschool non-contact sport competition. Specifically, the amendment requires that (1) the student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more, (2) the student previously was selected for and competed in the sport which he or she is applying for a waiver, (3) the student is otherwise qualified to compete in such sport, (4) the student has not previously been granted such a waiver, (5) the student has undergone and passed an evaluation by the school physician, and (6) the superintendent of schools or chief executive officer, as applicable, has determined that the student's participation will not adversely affect the opportunity of the other students to successfully compete in the competition.

The proposed amendment has been carefully drafted to address the specific circumstances for granting a waiver and it is anticipated that the waiver will be exercised in limited circumstances, given the restrictions on eligibility for such waiver and the specific circumstances the proposed amendment is intended to address, and that any compliance requirements and costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed rule applies to all school districts in the State, 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.

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

The proposed amendment will provide a waiver for a student with a disability to participate in senior high school athletic competition for an additional season despite the age and four-year limitations prescribed in section 135.4 of the Commissioner's regulations. The proposed amendment will require local school districts to implement a process for granting waivers to students with disabilities to participate for an additional season in such competition if such student meets certain eligibility criteria. Specifically, the amendment requires that (1) the student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more, (2) the student previously was selected for and competed in the sport which he or she is applying for a waiver, (3) the student is otherwise qualified to compete in such sport, (4) the student has not previously been granted such a waiver, (5) the student has undergone and passed an evaluation by the school physician, and (6) the superintendent of schools or chief executive officer, as applicable, has determined that the student's participation will not adversely affect the opportunity of the other students to successfully compete in the competition.

The superintendent of schools or the chief executive officer of a private school will be required to determine whether the given student meets such criteria and whether the student will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

It is anticipated that where applicable, a decision regarding a waiver may be appealed to the New York State Public High School Athletic Association in accordance with the Association's rules. As applicable in accordance with Education Law section 310, such a decision may be appealed to the Commissioner of Education.

The proposed amendment is expected to only impose minimal reporting, recordkeeping and other compliance requirements associated with reviewing and deciding a student's application for a waiver. It is anticipated that the waiver will be exercised in limited circumstances, given the restrictions on eligibility for such waiver and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

The proposed amendment imposes no additional professional service requirements on school districts.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any significant costs on school districts. The proposed amendment will require local school districts to implement a process for granting waivers to students with disabilities to participate for an additional season in such competition if such student meets certain eligibility criteria. The superintendent of schools or the chief executive officer of a private school will be required to determine whether the given student meets such criteria and whether the student will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

It is anticipated that the waiver provided by the proposed amendment will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement educational policy as determined by the Board of Regents by permitting, under certain specified circumstances, a waiver from the age requirement and four-year limitation for interschool athletic competition to students with disabilities in senior high school grades 9, 10, 11, and 12 who seek to participate in interschool non-contact sport competition. Specifically, the amendment requires that (1) the student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more, (2) the student previously was selected for and competed in the sport which he or she is applying for a waiver, (3) the student is otherwise qualified to compete in such sport, (4) the student has not previously been granted such a waiver, (5) the student has undergone and passed an evaluation by the school physician, and (6) the superintendent of schools or chief executive officer, as applicable, has determined that the student's participation will not adversely affect the opportunity of the other students to successfully compete in the competition.

The proposed amendment has been carefully drafted to address the specific circumstances for granting a waiver and it is anticipated that the waiver will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any compliance requirements and costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport. The proposed amendment implements Regents policy intended to apply State-wide to all schools, and therefore it is not possible to provide an exemption to, or prescribe lesser standards for, schools in rural areas.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.

The proposed amendment provides a waiver for a student with disability to participate for a fifth year in senior high school athletic competition despite the age and four-year limitations prescribed in Section 135.4 of the Commissioner’s regulations, if the student with disability meets certain criteria.

The proposed 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 no impact on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

The agency received no public comment