(1) the number of incidents that occurred on campus;

(2) the number of incidents that occurred off campus; and

(3) the total of incidents in paragraphs (1) and (2) of this subdivision;

(i) of those incidents reported in this paragraph:

(a) the number of incidents that the Title IX Coordinator is aware of, that were reported to law enforcement, which shall include, but not be limited to, the State Police;

(b) the number of incidents reported to campus police/campus security/campus public safety; and

(c) the number of incidents that the Title IX Coordinator is aware of, for which the reporting individual requested referral to additional services through the institution, including counseling, mental health, medical or legal services, whether those services were provided on-campus or through outside service providers.

(1) the number of incidents for which the reporting individual sought the institution's judicial or conduct process (which includes incidents for which a reporting individual made a request, in writing or orally, to engage the judicial or conduct process, whether an investigator or hearing model, and those incidents where, pursuant to section 6446(4) of the Education Law, the institution made a determination to pursue the judicial or conduct process without the consent of the reporting individual); and

(2) the number of incidents that are not included in paragraph (1) of this subdivision, including those for which there was no institutional jurisdiction over the accused or respondent, and those incidents for which the judicial or conduct process could not otherwise go forward.

(3) the number of incidents for which the reporting individual sought an order of “no contact” with the respondent(s), and the number of “no contact” orders issued.

(1) the number of respondents found responsible who were expelled/dismissed from the institution;

(2) the number of respondents found responsible who were suspended from the institution;

(3) the number of respondents found responsible who received sanctions other than expulsion/dismissal or suspension;

(4) the number of respondents found responsible who received a notation added to their official transcript noting a violation of the institutions’ code of conduct; and

(5) the number of respondents found responsible who received a notation added to their official transcript noting withdrawal from the institution with conduct charges pending.

Since publication of a Notice of Proposed Rule Making in the State Register on May 24, 2017, the following substantial revisions were made to the proposed rule:

Section 48.2(a)(3)(i)(a) was amended to clarify that of the total incidents reported to the Title IX Coordinator, institutions must report the number of incidents that the Title IX Coordinator is aware of, that were reported to law enforcement, which shall include, but not be limited to, the State Police.

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

Since publication of a Notice of Proposed Rule Making in the State Register on May 24, 2017, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

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

Since publication of a Proposed Rule Making in the State Register on May 24, 2017, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

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

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on May 24, 2017, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.

The revised proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised proposed rule that it will not affect job and employment opportunities, no affirmative 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.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2020, which is no later than the 3rd year after the year in which this rule is being adopted.

Since publication of a Notice of Proposed Rule Making in the State Register on May 24, 2017, the State Education Department (SED) received the following comments from one commenter:

1. COMMENT:

Section 48.2(a)(i)(a-c).This section of the proposed regulations is referenced nowhere in the authorizing statute (Article 129-B) nor was it contained in the original proposed regulations by the Department. Inclusion of these requirements is beyond the scope of the legislation and would create an undue recordkeeping burden on colleges and universities.

Moreover, the information sought is not easily defined. Recording the exact time at which law enforcement is notified versus when the Title IX Coordinator is notified can become clouded. In addition, inclusion of this provision could create a situation on campus where college staff members, particularly during off-hours, are debating whom to notify first rather than attend to the needs of students. Ultimately this could do a disservice to a student in distress and lead to less timely notification to law enforcement.

Finally, the data collected for 48.2(a)(i)(c) may not be an accurate reflection of services being utilized by a reporting individual. In many circumstances, colleges and universities automatically refer reporting individuals to the services outlined in this section, therefore the reporting individual does not need to request such services which makes collection of this data not valuable.

The commenter recommends that this section not be included in the final regulations due to administrative overreach and the incomplete and questionable value of that data that would be collected. Resources expended to respond to this section could better be spent ensuring responsiveness to students.

DEPARTMENT RESPONSE:

The Department believes that including this information in the annual aggregate data reports is consistent with the legislative intent of the statute and will provide information that will help to inform practices and policies on campuses designed to prevent incidents of domestic violence, dating violence, stalking and sexual assault, as well as assist institutions in developing policies and practices designed to facilitate the reporting of such incidents that do take place and the provision of services to reporting individuals. There is no requirement that an institution track the time of notification to law enforcement or to the Title IX Coordinator, or that the Title IX Coordinator know or report whether a report to law enforcement was made prior to or after a report was made to the Title IX Coordinator. No regulatory revision is necessary.

2. COMMENT:

Section 48.2(a)(i) and 48.2(b). Wording is inconsistent between these two parts with (a)(i) reading “of those incidents reported in paragraph (a)(3) of this subdivision” and (b) reading “of those incidents reported in subdivision (a)(3) of this section” [emphasis added]. It appears he wording is inconsistent and should be corrected.

DEPARTMENT RESPONSE:

The Department agrees with this comment and will make the technical change requested.

3. COMMENT:

Section 48.2(b). The data requested by this section could get overly granular, especially at more suburban and rural colleges and universities with smaller populations, leading to the possibility of potential exposure of parties involved. The commenter urges the Department to exercise extreme caution when handling this information and deciding what to make public in its report to the Executive and Legislature. As always, student safety and privacy should be at the forefront of any decision made.

DEPARTMENT RESPONSE:

The Department agrees with this comment and has processes and procedures in place to ensure that all information and data reported is done in accordance with all applicable privacy laws and regulations. No regulatory revision is necessary.

4. COMMENT:

Section 48.2(b)(3). This requirement for schools to report the number of times a reporting individual sought a “no contact” order by the school is above and beyond the language and scope of the statute. The final legislation that was voted on by the Legislature came after exhaustive deliberations and consultations with a multitude of organizations, including all sectors of higher education, culminating in a detailed piece of legislation with myriad implementation and reporting requirements. To include requirements that go beyond the scope of legislative intent and the actual statute itself leads to legislating via the regulatory process. Accordingly, the commenter urges this part of the proposed regulation be struck.

DEPARTMENT RESPONSE:

The Department believes that including this information in the annual aggregate data reports is consistent with the legislative intent of the statute and will provide information that will help to inform practices and policies on campuses designed to prevent incidents of domestic violence, dating violence, stalking and sexual assault. No regulatory revision is necessary.

5. COMMENT:

Section 48.2(f). As the commenter suggested earlier for section 48.2(b), the exhaustive data requested by this section could get overly granular, especially at smaller colleges and universities, leading to the possibility of exposure of parties involved. The commenter urges the Department to exercise extreme caution when handling this information.

DEPARTMENT RESPONSE:

The Department agrees with this comment and has processes and procedures in place to ensure that all information and data reported is done in accordance with all applicable privacy laws and regulations. No regulatory revision is necessary.

6. COMMENT:

Section 48.2(f)(1-5) and (h). The commenter recommends that the Department combine these categories into one: “cases not closed” and include a drop down menu of choices from which the school can choose.

DEPARTMENT RESPONSE:

The Department will consider this recommendation as it completes the creation of the data reporting system. No regulatory revision is necessary.

7. COMMENT:

Section 48.2(i). The commenter recommends that this part not be included in the final regulations because it goes beyond the statutory language. Additionally, as written this section is subjective and provides no context for the information that may be given. Qualitative responses allow for more discussion and context. For example, a school may have two trainings each year, but those trainings could be for one week each and encompass the entire campus community. The result would be a school reporting two trainings per year but without context it could give the appearance that the school is not taking training seriously.

Responding quickly and appropriately to potential cases of sexual assault is of paramount importance. If the data requested in the proposed regulations, particularly those not contemplated in statute, cannot be shown to demonstrably improve campus safety, the commenter urges they be dropped from the final regulations. Time spent collecting data of questionable value could better be spent serving student needs.

DEPARTMENT RESPONSE:

Whether or not to report information concerning trainings held by an institution is up to each institution and is not required by this section. Institutions can opt not to respond to this section. No regulatory revision is necessary.

8. COMMENT:

Responding quickly and appropriately to potential cases of sexual assault is of paramount importance. If the data requested in the proposed regulations, particularly those not contemplated in statute, cannot be shown to demonstrably improve campus safety, the commenter urges they be dropped from the final regulations. Time spent collecting data of questionable value could better be spent serving student needs.

DEPARTMENT RESPONSE:

The Department believes that the information required by this regulation to be included in the annual data reports is consistent with the legislative intent of the statute and will provide information that will help to inform practices and policies on campuses designed to prevent incidents of domestic violence, dating violence, stalking and sexual assault, as well as assist institutions in developing policies and practices designed to facilitate the reporting of such incidents that do take place and the provision of services to reporting individuals. No regulatory revision is necessary.