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 60-day public comment period for proposed rulemakings provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the October 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 October 23, 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 school districts are on notice that they must apply for the waiver by November 15, 2019.

(l)(1) Notwithstanding any other provision of this section to the contrary, certain school districts that have demonstrated a safety issue and/or other scheduling challenges that prevented them from complying with the annual instructional hour requirement set forth in subdivision (c) of this section in the 2018-2019 school year may apply to the Commissioner by November 15, 2019 for a single waiver for up to four school years from such requirement for the 2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years; provided that such school district meets the following requirements:

(i) the school district must be in session for at least 180 school days in each school year, which shall include superintendent’s conference days authorized under this section;

(ii) the school district must attest that the annual instructional hours for the 2018-2019 and 2019-2020 school years will be at least equal to the annual instructional hours provided in the 2017-2018 school year and that for the 2020-2021 and 2021-2022 school years the school district will demonstrate that the total number of its schools that are in compliance with the instructional hour requirements will increase annually by increments of no less than one-third, resulting in full compliance in the 2022-2023 school year;

(iii) the school district must describe the safety and/or scheduling challenges that prevented the school district from complying with such requirements; and

(iv) the school district must provide a plan to the Commissioner as to how it will comply with the instructional hour requirement in the 2022-2023 school year for all schools in the district.

(2) The Commissioner will post a list of school districts with approved waivers for the 2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years on the Department’s website.

1. STATUTORY AUTHORITY:

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

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

Education Law §§ 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.

Education Law § 3602 provides for the apportionment of public moneys to school districts employing eight or more teachers.

Education Law § 3604 sets forth the conditions under which districts are entitled to apportionment of State aid, including that districts must be in session in the district for not less than 190 days.

Education Law § 3609-a provides for the when and how apportioned moneys are payable.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary for the preservation of the general welfare to provide schools districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements.

3. NEEDS AND BENEFITS:

At its December 2017 meeting, the Department proposed an amendment to the regulation to eliminate the current daily minimum instructional hour requirement and replace it with an aggregate yearly requirement (i.e., 900/990 hours over 180 days for full-day kindergarten through grade six and grades seven through twelve, respectively), to provide school districts with additional flexibility when establishing their school calendars. The Board of Regents adopted the revised proposed regulation as a permanent rule at the September 2018 meeting.

Concerns have been raised by a small number of school districts that have indicated that due to safety issues and/or other scheduling challenges, they are unable to meet the minimum annual instructional hour requirements, the proposed amendment allows such school districts to apply to the Commissioner by November 15, 2019 for a waiver for up to four school years (2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years); provided that such school district meets the following requirements:

• the school district must be in session for at least 180 school days in each school year, which shall include superintendent’s conference days authorized under this section;

• the school district must attest that the annual instructional hours for the 2018-2019 and 2019-2020 school years will be at least equal to the annual instructional hours provided in the 2017-2018 school year and that in each subsequent year of the waiver the school district will demonstrate that the total number of its schools that are in compliance with the instructional hour requirements will increase annually by increments of no less than one-third (e.g. 33% of all schools in 2020-2021, 66% in 2021-2022, resulting in 100% compliance in 2022-2023);

• the school district must describe the safety and/or scheduling challenges that prevented the school district from complying with such requirements; and

• the school district must provide a plan to the Commissioner as to how it will comply with the instructional hour requirement in the 2022-2023 school year for all schools in the district.

The proposed amendment also provides that the Commissioner will post a list of school districts with approved waivers for the 2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years on the Department’s website and that all claims submitted by school districts for the payment of State aid for the 2019-2020 school year and thereafter shall include the total number of instructional hours, non-instructional hours, and session days for each grade level in each school within the school district, and a completed calendar worksheet in a format prescribed by the commissioner for each such school within the school district.

During the waiver period, Department staff will work with school districts to identify and address any emerging issues, particularly those related to safety.

4. COSTS:

Cost to the State: None.

Costs to local government: There are no additional costs beyond those imposed by the statute.

Cost to private regulated parties: There are no additional costs beyond those imposed by the statute.

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

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment authorizes school districts who cannot meet the minimum instructional requirements due to safety and/or scheduling issues to apply to the Commissioner for a single waiver for up to four school years of such requirements.

6. PAPERWORK:

See Section 5 above. Also, the proposed amendment requires all school districts who receive a waiver to provide a plan to the Commissioner as to how it will comply with the instructional hour requirement in the 2022-2023 school year for all schools in the district. Additionally, the proposed amendment provides that all claims submitted by school districts for the payment of State aid for the 20219-2020 school year and thereafter shall include the total number of instructional hours, non-instructional hours, and session days for each grade level in each school within the school district, and a completed calendar worksheet in a format prescribed by the commissioner for each such school within the school district.

7. DUPLICATION:

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

8. ALTERNATIVES:

The proposed amendment is necessary for the preservation of the general welfare to provide schools districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements by November 15, 2019. No significant alternatives to the proposed amendment and none were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

If adopted at the July 2019 Regents meeting, the proposed amendment will become effective as an emergency rule on July 16, 2019. Following the 60-day public comment period required under the State Administrative Procedure Act, it is anticipated that the proposed amendment will be presented to the Board of Regents for permanent adoption at its October 2019 meeting. If adopted at the October 2019 meeting, the proposed amendment will become effective on October 23, 2019. A second emergency action will also be needed at the October meeting to ensure that the emergency rule adopted at the July meeting remains continuously in effect until it can be adopted as a permanent rule.

(a) Small businesses:

The proposed amendment is necessary for the preservation of the general welfare to provide schools districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements, 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 requires all school districts that receive a waiver to provide a plan to the Commissioner as to how it will comply with the instructional hour requirement in the 2022-2023 school year for all schools in the district. Additionally, the proposed amendment provides that the Commissioner will post a list of school districts with approved waivers for the 2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years on the Department’s website and that all claims submitted by school districts for the payment of State aid for the 2019-2020 school year and thereafter shall include the total number of instructional hours, non-instructional hours, and session days for each grade level in each school within the school district, and a completed calendar worksheet in a format prescribed by the commissioner for each such school within the school district. The proposed regulation does not impose any program, service, duty or responsibility on small businesses beyond those inherent in the regulation.

3. NEEDS AND BENEFITS:

At its December 2017 meeting, the Department proposed an amendment to the regulation to eliminate the current daily minimum instructional hour requirement and replace it with an aggregate yearly requirement (i.e., 900/990 hours over 180 days for full-day kindergarten through grade six and grades seven through twelve, respectively), to provide school districts with additional flexibility when establishing their school calendars. The Board of Regents adopted the revised proposed regulation as a permanent rule at the September 2018 meeting.

Concerns have been raised by a small number of school districts that have indicated that due to safety issues and/or other scheduling challenges, they are unable to meet the minimum annual instructional hour requirements, the proposed amendment allows such school districts to apply to the Commissioner by November 15, 2019 for a waiver for up to four school years (2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years); provided that such school district meets the following requirements:

• the school district must be in session for at least 180 school days in each school year, which shall include superintendent’s conference days authorized under this section;

• the school district must attest that the annual instructional hours for the 2018-2019 and 2019-2020 school years will be at least equal to the annual instructional hours provided in the 2017-2018 school year and that in each subsequent year of the waiver the school district will demonstrate that the total number of its schools that are in compliance with the instructional hour requirements will increase annually by increments of no less than one-third (e.g. 33% of all schools in 2020-2021, 66% in 2021-2022, resulting in 100% compliance in 2022-2023);

• the school district must describe the safety and/or scheduling challenges that prevented the school district from complying with such requirements; and

• the school district must provide a plan to the Commissioner as to how it will comply with the instructional hour requirement in the 2022-2023 school year for all schools in the district.

The proposed amendment also provides that the Commissioner will post a list of school districts with approved waivers for the 2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years on the Department’s website and that all claims submitted by school districts for the payment of State aid for the 2019-2020 school year and thereafter shall include the total number of instructional hours, non-instructional hours, and session days for each grade level in each school within the school district, and a completed calendar worksheet in a format prescribed by the commissioner for each such school within the school district.

During the waiver period, Department staff will work with school districts to identify and address any emerging issues, particularly those related to safety.

4. PROFESSIONAL SERVICES:

No professional services are needed to comply with the proposed amendment.

5. COMPLIANCE COSTS:

In general, the proposed amendment does not impose any additional costs on local governments and small businesses.

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 for the preservation of the general welfare to provide schools districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements. 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 for the preservation of the general welfare to provide school districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements. The proposed amendment requires all school districts that receive a waiver to provide a plan to the Commissioner as to how it will comply with the instructional hour requirement in the 2022-2023 school year for all schools in the district. Additionally, the proposed amendment provides that the Commissioner will post a list of school districts with approved waivers for the 2018-2019, 2019-2020, 2020-2021 and/or 2021-2022 school years on the Department’s website and that all claims submitted by school districts for the payment of State aid for the 2019-2020 school year and thereafter shall include the total number of instructional hours, non-instructional hours, and session days for each grade level in each school within the school district, and a completed calendar worksheet in a format prescribed by the commissioner for each such school within the school district.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs on the State, regulated parties, or the State Education Department.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is merely provides school districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements. Because the statutory requirement upon which the proposed amendment is based applies to all schools in the State, 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 for the preservation of the general welfare to provide schools districts with notice that if they cannot meet the minimum instructional requirements due to safety and/or scheduling issues they can apply to the Commissioner for a single waiver for up to four school years of such requirements.

Because it is evident from the nature of the proposed amendment 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.