Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for regular (non-emergency) adoption, after expiration of the required 45-day public comment period for revised rulemakings provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the July 2019 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the July 2019 meeting, would be July 31, 2019, the date a Notice of Adoption would be published in the State Register.

Therefore, emergency action is necessary at the July 2019 Regents meeting for the preservation of the general welfare to ensure that the emergency action taken at the April 2019 meeting remains in effect to implement the provisions of Section 30 of Part YYY of Chapter 59 of the Laws of 2019 until it can be adopted as a permanent rule.

[During the period commencing on April 1, 2014 and expiring on December 31, 2018]:

(a) [no] No school district or board of cooperative educational services may place or include on a student's official transcript or maintain in a student's permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, provided that nothing herein shall be construed to interfere with required State or federal reporting or to excuse a school district from maintaining or transferring records of such test scores separately from a student's permanent record, including for purposed of required State or federal reporting; and

(b) any test results on a State administered standardized English language arts or mathematics assessment for grades three through eight sent to parents or persons in parental relation to a student shall include a clear and conspicuous notice that such results will not be included on the student's official transcript or in the student's permanent record and are being provided to the student and parents for diagnostic purposes.

1. STATUTORY AUTHORITY:

Education Law section 101 continues existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.

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

Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.

Education Law section 209 authorizes the Regents to establish secondary school examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations; and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.

Education Law section 210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.

Education Law section 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.

Education Law section 305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents. Section 305(20) provides Commissioner shall have such further powers and duties as charged by the Regents.

Education Law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.

Education Law section 309 charges Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.

Education Law section 3204(3) provides for required courses of study in the public schools and authorizes SED to alter the subjects of required instruction.

Part 35 of Part CCC of Chapter 59 of the Laws of 2018 extended the provisions of Part AA, Subpart B of Chapter 56 of the Laws of 2014 added new subdivisions (45) and (46) to Education Law section 305, which directed the Commissioner to provide that no school district or board of cooperative educational services may place or include on a student’s official transcript or maintain in a student’s permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, and that any test results on such assessments sent to parents/persons in parental relation include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided for diagnostic purposes. The statute provides that these provisions shall expire and be deemed repealed on December 31, 2019.

Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C) removed the December 31, 2019 sunset date for these provisions in the statute, making the provisions permanent.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to conform the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C).

3. NEEDS AND BENEFITS:

Education Law § 305(45) and (46) were added as part of the 2014 Enacted Budget. These sections provide that no school district or board of cooperative educational services (BOCES) may place or include on a student’s official transcript or maintain in a student’s permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, and further require that any test results on such assessments sent to parents/persons in parental relation include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided for diagnostic purposes. These provisions were set to expire and be deemed repealed on December 31, 2018. In April of 2014, the Board of Regents adopted amendments to the Commissioner’s regulations to implement these sections and the regulatory provisions expired on December 31, 2018.

These provisions in the law were extended by Section 35 of Part CCC of Chapter 59 of the Laws of 2018 until December 31, 2019. Therefore, regulatory amendments were adopted by the Board of Regents at its January 2019 meeting to immediately extend these provisions an additional year to comply with the statute. However, Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C) removed the December 31, 2019 sunset date for these provisions in the statute, making the provisions permanent.

4. COSTS:

Cost to the State: none.

Costs to local government: none.

Cost to private regulated parties: none.

Cost to regulating agency for implementation and continued administration of this rule: none.

The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C) , and does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C)., and does not impose any additional program, service, duty or responsibility upon local governments beyond those inherent in the statute.

Consistent with the statute, the proposed amendment provides that no school district or board of cooperative educational services (BOCES) may place or include on a student’s official transcript or maintain in a student’s permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, and further require that any test results on such assessments sent to parents/persons in parental relation include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided for diagnostic purposes.

6. PAPERWORK:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any specific recordkeeping, reporting or other paperwork requirements beyond those inherent in the statute.

Consistent with the statute, the proposed amendment provides, that no school district or board of cooperative educational services may place or include on a student’s official transcript or maintain in a student’s permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, and that any test results on such assessments sent to parents/persons in parental relation include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided to the student and parents/persons in parental relation for diagnostic purposes.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or federal requirements. The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYYof the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C).

8. ALTERNATIVES:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C). There were no significant alternatives and none were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated parties will be able to achieve compliance with the rule by its effective date. The proposed amendment merely conforms the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C).

(a) Small businesses:

The proposed amendment will not impose any additional compliance requirements and is necessary to is necessary to implement and otherwise conform Commissioner's Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment 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 and one has not been prepared.

1. EFFECT OF RULE:

The proposed amendment applies to each of the 695 public school districts in the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any additional compliance requirements upon school districts beyond those inherent in the statute.

3. NEEDS AND BENEFITS:

Education Law § 305(45) and (46) were added as part of the 2014 Enacted Budget. These sections provide that no school district or board of cooperative educational services (BOCES) may place or include on a student’s official transcript or maintain in a student’s permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, and further require that any test results on such assessments sent to parents/persons in parental relation include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided for diagnostic purposes. These provisions were set to expire and be deemed repealed on December 31, 2018. In April of 2014, the Board of Regents adopted amendments to the Commissioner’s regulations to implement these sections and the regulatory provisions expired on December 31, 2018.

These provisions in the law were extended by Section 35 of Part CCC of Chapter 59 of the Laws of 2018 until December 31, 2019. Therefore, regulatory amendments were adopted by the Board of Regents at its January 2019 meeting to immediately extend these provisions an additional year to comply with the statute. However, Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C) removed the December 31, 2019 sunset date for these provisions in the statute, making the provisions permanent.

4. PROFESSIONAL SERVICES:

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

5. COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute.

6. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any additional costs or technological requirements on local governments.

7. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, as amended by Chapter 59 of the Laws of 2018 and Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute. Accordingly, no alternatives were considered.

8. LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule have been 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 NUMBERS 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 is necessary to conform the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any specific recordkeeping, reporting or other paperwork requirements beyond those inherent in the statute.

Consistent with the statute, the proposed amendment provides, that no school district or board of cooperative educational services may place or include on a student’s official transcript or maintain in a student’s permanent record any individual student score on a State administered standardized English language arts or mathematics assessment for grades three through eight, and that any test results on such assessments sent to parents/persons in parental relation include a clear and conspicuous notice that such results will not be included on the student’s official transcript or in the student’s permanent record and are being provided to the student and parents/persons in parental relation for diagnostic purposes.

3. COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C), and does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is merely conforms the Commissioner’s Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C) and does not impose any additional compliance requirements or costs on school districts or charter schools beyond those inherent in the statute. Because the statutory requirement upon which the proposed amendment is based applies to all school districts in the State and to charter schools authorized to issue Regents diplomas, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.

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 rule is necessary to implement and otherwise conform Commissioner's Regulations to Section 30 of Part YYY of the 2019-2020 Enacted State Budget (S.1509-C/A.2009-C) which provides that no school district shall make any student promotion or placement decisions based solely or primarily on student performance on the state administered standardized English language arts and mathematics assessments for grades three through eight. However, a school district may consider student performance on such state assessments provided that the school district uses multiple measures in addition to such assessments and that such assessments do not constitute the major factor in such determinations.

Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York State, 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.

1. COMMENT:

Commenter, a parent of public school children, resident of New York City, and professional educator, strongly supports the proposed amendment. Commenter expressed concern with the value and reliability of the assessments and as a result supports the exclusion of such results on students’ official transcripts or permanent records.

DEPARTMENT RESPONSE:

No response is necessary as the comment is supportive.