As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:

An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.

Since publication of the Notice of Revised Rule Making in the State Register on October 1, 2014, the State Education Department received comments from nine individuals and organizations during the public comment period.

A comment stated that Committees on Special Education (CSEs) and bilingually certified personnel do not have the knowledge and skills to distinguish between a disability and second language acquisition, and recommended that a central team under the district’s division of English Language Learners (ELLs), or a State Education Department/school district collaboration team, should assess and determine knowledge and skills. The Department disagrees and states that proposed section 154-3.3 provides that as part of the initial screening process, the Language Proficiency Teams (LPTs), and not the CSEs (the composition of which is defined by 8 NYCRR section 200.3), would make a recommendation as to whether the student has second language needs and therefore needs to move to the next step in the process of taking the statewide English Language proficiency assessment. If the student will take the statewide assessment, the CSE would determine whether the student would take the assessment with or without accommodations or an alternate assessment where one has been prescribed by the Commissioner. Certified Bilingual and English to Speakers of Other Languages (ESOL) teachers are qualified to determine second language acquisition needs.

Another comment stated that in compliance with the Individuals with Disabilities Education Act (IDEA), the CSE must determine the student’s dominant language in order to rule out whether the student has a disability and ensure that English language proficiency assessments used for this purpose are valid and reliable for the population being assessed. Furthermore, the CSE must ascertain that such assessments are conducted by qualified and trained professionals, knowledgeable about second language acquisition. The Department responds that the IDEA does not include a requirement that the CSE determine the student’s dominant language. However, it does require the CSE to ensure that assessments and other evaluation materials used to assess a student are provided and administered in the student’s native language, which for this purpose is defined as the language normally used by the student in the home or learning environment [see 8 NYCRR section 100.2(ff)]. The Prat 117 screening process and the Part 154 identification process for ELLs would inform the CSE as to the student’s native language. In the event the student appears to have an obvious and severe disability and has not first completed the ELL screening and identification process, the CSE must in consultation with the student’s parents, determine the native language of the student for purposes of administering assessments and other evaluation materials to the student. All other students who are suspected of both having a disability and suspected of being an ELL, but not yet identified as either a student with a disability or an ELL, will first go through the standard ELL identification process pursuant to section 154-2.3(a)(1) through (4).

A comment suggested that the requirement for two letters to be sent to parents by the principal and the Superintendent, respectively, regarding a student’s placement in an English as a Second Language (ESL) program, should be reduced to one letter, communicating the district’s final decision. The Department responds that the requirements in section 154-3.3(e) and (f) for, respectively, an initial notice of identification within ten days, followed by a second and final determination within five days, applies to a recommendation that a student with a disability is not an ELL. The Department’s goal in requiring two notifications is for the first communication to inform the parents of the initial determination to give them an opportunity to raise any concerns they may have prior to final identification. Collapsing this notice requirement into a single notice after the final identification decision would deny parents this opportunity.

A comment stated that the proposed rule is not clear in identifying the school principal to whom the LPT must send it recommendation, as there is a possibility that a student may be placed in a different school than the one to which the student was originally referred. The Department responds that the principal of the school the student is currently attending at the time of identification shall make the initial recommendation to the superintendent and shall send out notification to the parent of the recommendation.

A comment stated that a student’s Individualized Education Program (IEP) must include the form of entry and exit assessment the student is able to participate in (e.g. standardized test, with or without modifications, or alternate assessment). The Department responds that the IEP of an ELL with a disability must be developed in consideration of the language needs of the student as such needs relate to the student’s IEP. The IEP must also indicate if: (1) the student will participate in an alternate assessment on a particular State or districtwide assessment of student achievement, and (2) whether the student needs any individual testing accommodations in the administration of districtwide assessments of student achievement and, in accordance with Department policy, State assessments of student achievement necessary to measure the academic achievement and functional performance of the student.

A comment indicated that districts should be required to obtain work samples from evaluation in at least the top five languages spoken in New York State. TheDepartment responds that pursuant to section 154-2.3, interview notes, academic and assessment history and work samples derived from the ELL identification process are to be maintained in each student’s cumulative record.

In response to a comment that the Department clarify possible conflicts with Response to Intervention (RTI) legislation, the Department states the requirement that all school districts develop and implement RTI programs in grades K-4 in the area of reading does not conflict with the proposed additions in Subpart 154-3.

A comment recommended that the English Language Arts (ELA) exam or the English Regents exam in grades 3-12 should be able to be used as the alternate under section 154-3.4, and sought clarification as to whether the 3-8 ELA exam or Regents examination in English may be used as the “alternate assessment” in grades 3-12 under the proposed regulation. The Department responds that the “alternate assessment” must be an alternate assessment of English language proficiency. As neither the 3-8 ELA exam nor the Regents examination in English is an examination of English proficiency, neither of these exams may be used as the “alternate assessment as may be prescribed by the commissioner” under section 154-3.4.

A comment stated that local districts should be permitted to devise and initiate a valid alternate assessment for exiting ELLs with disabilities, rather than use a Statewide “one size fits all” assessment. The Department responds that it is exploring pathways toward identifying and developing alternate English proficiency assessments for ELLs with disabilities. The United States Department of Education (USDE) has clarified that “as part of a general State assessment program, all ELLs with disabilities must participate in the annual State ELP assessment with or without appropriate accommodations or by taking an alternate assessment, if necessary, consistent with their IEPs. The IDEA, Titles I and III of the ESEA, and Federal civil rights laws require that all children, including children with disabilities, take Statewide assessments that are valid and reliable for the purpose for which they are being used, and this includes the annual ELP assessment.”

A number of comments expressed concerns about the proposed regulations relating to matters about which guidance from the Department will be forthcoming, or for which the Department is exploring pathways to address. These include matters relating to the identification of second language needs of students with severe disabilities; school district responsibility to provide interpretation and translation services; assisting school districts to secure appropriate assessments in other languages, including low-incidence languages; creating protocols for assessment of possible ELLs entering kindergarten; clarifying tracking and reporting requirements under section 154-3.3; clarifying use of “alternative assessment” in Subpart 154-3 in relation to the New York State Alternate Assessment (NYSAA) and the New York State English as a Second Language Achievement Test (NYSESLAT); identifying best practices and shared resources to minimize costs to school districts; and obtaining input from experts in language acquisition and in the provision of services to students with disabilities in order to ensure that federal policies are implemented at the State and school levels.

Some comments were beyond the scope of the proposed Subpart 154-3, in that they relate to provisions in Subpart 154-2, which was added to the Commissioner’s Regulations as part of a separate rule making adopted by the Board of Regents in September 2014 (State Register, October 1, 2014; EDU-27-14-00011-A), including the 45-day requirement to request an identification review [8 NYCRR 154-2.3(b)(1)]; the 10-day requirement for the ELL identification process [154-2.3(b)(3)]; and the provision of interpretation and translation services [154-2.2(t) and (u); 154-2.3(a)(9)(i); 154-2.3(f)(5)].

Other comments stemmed from confusion over the scope of the proposed Subpart 154-3 and its relationship to Subpart 154-2, in that Subpart 154-3 only applies to students who have already been identified as having a disability. Students who have not yet been identified as having a disability are subject to the standard ELL identification process set forth in Subpart 154-2; for ELLs who are suspected of, but not yet identified as, of having a disability, districts must follow their existing CSE referral process, consistent with 8 NYCRR section 200.4(a).

Finally, some comments expressed concerns about changes that the Department was required to implement in order to comply with guidance issued by the USDE on July 18, 2014 regarding assessment and exit procedures for ELLs with disabilities. This included a comment that the use of a LPT for potential identification as an ELL of a student with a disability must be eliminated and that initial identification be conducted by the CSE; the Department notes that under the USDE guidance, a CSE is prohibited from making a language identification determination and, therefore, the LPT team is necessary. In addition, there was a comment that noted that since the members of the LPT and CSE are identical, except for the Teaching English to Speakers of Other Languages (TESOL) teacher and a qualified interpreter/translator, all necessary decisions should be made at the CSE meeting, with the TESOL teacher and interpreter/translator present. However, this would contravene the USDE guidance, which clarified how ELLs with disabilities are to be assessed and exited, as well as the proper role of school district bodies such as the LPT and CSE in assessing ELLs with disabilities. Also, a comment was made that, for purposes of exiting form ELL status, the definition of English “proficiency” must be modified for students with severe disabilities, taking into account the various modes of communication and linguistic abilities of such students. In response, the Department notes that the proposed Subpart 154-3, in providing that ELLs with disabilities may only be exited upon achieving proficiency in English as set forth in section 154-3.4(b), conforms with the USDE guidance, which clarified that ELLs with disabilities may only be exited from ELL status when they meet the state’s definition of “proficient” in English and hence no longer fall within the definition of an ELL.