(e) Availability of Regents diploma and courses. Each public school district shall offer students attending its schools the opportunity to meet all the requirements for and receive a Regents high school diploma. Students shall have the opportunity to take Regents courses in grades 9 through 12 and, when appropriate, in grade eight. Public schools, including charter schools, and nonpublic schools that administer State assessments, shall administer those related field tests as may be prescribed by the Commissioner for which the school has been assigned to those students enrolled in the applicable courses of study.

2. Paragraph (2) of subdivision (b) of section 100.3 of the Regulations of the Commissioner of Education is amended, effective February 25, 2015, as follows:

(2) Required assessments. (i) Except as otherwise provided in subparagraphs (ii) and (iii) of this paragraph, at the specified grade level, all students shall take the following tests, provided that testing accommodations may be used as provided for in section 100.2(g) of this Part in accordance with department policy:

(a) beginning in January 1999, the English language arts elementary assessment and the mathematics elementary assessment shall be administered in grade four and, beginning in the 2005-2006 school year, the English language arts elementary assessments and the mathematics elementary assessment and the related field tests essential to their development as may be prescribed by the commissioner shall be administered in grades three and four; and

(b) beginning in January 2000, the elementary science assessment and the related field tests essential to its development as may be prescribed by the commissioner shall be administered in grade four.

(ii) ...

(iii) In accordance with their individualized education programs, students with disabilities instructed in the alternate academic achievement standards defined in section 100.1(t)(2)(iv) of this Part shall be administered a State alternate assessment to measure their achievement, and shall be administered the related field tests essential to the development of such alternate assessment as may be prescribed by the commissioner.

3. Paragraph (2) of subdivision (b) of section 100.4 of the Regulations of the Commissioner of Education is amended, effective February 25, 2015, as follows:

(2) Required assessments. (i) Except as otherwise provided in subparagraphs (iv) and (v) of this paragraph, all students shall take the following assessments, provided that testing accommodations may be used as provided for in section 100.2(g) of this Part in accordance with department policy:

(ii) beginning with the 2005-06 school year, English language arts and mathematics assessments and the related field tests essential to their development as may be prescribed by the commissioner shall be administered in grades 5 and 6;

(iii) …

(iv) …

(v) in accordance with their individualized education programs, students with disabilities instructed in the alternate academic achievement standards defined in section 100.1(t)(2)(iv) of this Part shall be administered a State alternate assessment to measure their achievement, and shall be administered the related field tests essential to the development of such alternate assessment as may be prescribed by the commissioner;

(vi) ...

(vii) …

4. Subdivision (e) of section 100.4 of the Regulations of the Commissioner of Education is amended, effective February 25, 2015, as follows:

(e) Required assessments in grades 7 and 8. Except as otherwise provided in subdivisions (f) and (g) of this section, and except for students who have been admitted to a higher grade without completing the grade at which the assessment is administered, all students shall take the following assessments, provided that testing accommodations may be used as provided for in section 100.2(g) of this Part in accordance with department policy.

(1) Beginning with school year 1998-99, the English language arts intermediate assessment shall be administered in grade 8. Beginning with the 2005-2006 school year, English language arts assessments and the related field tests essential to their development as may be prescribed by the commissioner shall be administered in grades 7 and 8.

(2) Beginning with the 1998-99 school year, the mathematics intermediate assessment shall be administered in grade 8. Beginning with the 2005-06 school year, mathematics assessments and the related field tests essential to their development as may be prescribed by the commissioner shall be administered in grades 7 and 8, provided that, for the 2013-2014 school year, students who attend grade 7 or 8 may take a Regents examination in mathematics in lieu of or in addition to the grade 7 or 8 mathematics assessment, in accordance with section 100.18(b)(14) of this Part.

(3) …

(4) Beginning with the school year 2000-2001, the science intermediate assessment and the related field tests essential to its development as may be prescribed by the commissioner shall be administered in grade 8; provided that students who attend grade 8 may take a Regents examination in science in lieu of or in addition to the grade 8 science intermediate assessment, in accordance with this section and section 100.18(b)(4) of this Part, and provided further that the science intermediate assessment shall not be administered in grade 8 to students who take such assessment in grade 7 and are being considered for placement in an accelerated high school-level science course when they are in grade 8 pursuant to subdivision (d) of this section.

(5) Such other assessments as the commissioner determines appropriate.

(6) …

5. Subdivision (g) of section 100.4 of the Regulations of the Commissioner of Education is amended, effective February 25, 2015, as follows:

(g) In accordance with their individualized education programs, students with disabilities instructed in the alternate academic achievement standards defined in section 100.1(t)(2)(iv) of this Part shall be administered a State alternate assessment to measure their achievement, and shall be administered the related field tests essential to the development of such alternate assessment as may be prescribed by the commissioner;

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the State Education Department (SED), with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges SED with the general management and supervision of public schools and the educational work of the State.

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

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 211-a(1), (2) and (3) authorize State assessments as part of an enhanced State accountability system.

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 the Commissioner with the general supervision of boards of education and their management and conduct of all departments of instruction.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to ensure that future New York State examinations administered to students in grades 3-12 continue to be fair and valid and of the highest quality and that there continues to be an equitable distribution of field test responsibilities across all school districts in this state.

3. NEEDS AND BENEFITS:

In accordance with federal requirements and sections 100.3, 100.4, and 100.5 of the Commissioner’s regulations, the Department requires that all students in public and charter schools in Grades 3–8 must take all state assessments administered for their grade level and that all high school students must earn passing scores on Regents Exams in five subjects to satisfy the State testing requirements for graduation. State testing is a critical component of instruction in education programs. It provides an evaluation of student mastery of content and skills in various courses of study and helps shape future instruction. State assessments are required pursuant to the authority of the Board of Regents under Education Law § § 208, 209 and 211-a, and at this time field testing is a necessary component of required State testing to assure the validity and reliability of those State assessments. State assessments, as noted above, are included as part of the program requirements for students in Grades 3-8 and high school under sections 100.3(b)(2), 100.4(b)(2) and(e), and 100.5(a) of the Commissioner’s regulations.

Field tests and/or their precursor, pretests, are part of the State assessment program and have been administered in New York State schools since 1938. To determine which schools must administer field tests in a given school year, the Department uses a stratified random sampling methodology to ensure that each field test administration includes a sufficient representative sample and number of student participants and that the frequency of field test assignments is distributed across schools as fairly as possible.

In general, most schools have understood and appreciated their importance in the development of fair State assessments and have been cooperative in administering them when required through the assignment process described above. However, in the past few years we have experienced an increase in the number of school district administrators and board of education members questioning whether school participation in field tests is required.

The proposed amendment will make explicit the requirement that all schools administer field tests thereby ensuring that:

• responsibilities for administering field tests are distributed in a fair and equitable manner across all school districts in the State;

• New York State students continue to benefit from sustained high rates of school participation in their assigned field tests so that fair and valid future State tests can be developed; and

• the need does not arise to add to the field testing assignments for cooperating school districts in order to compensate for those districts that otherwise do not cooperate with their assigned field tests.

The Department’s goal is to require the least amount of field testing necessary to build and administer high quality assessments that provide accurate information about student achievement. All field tests associated with New York State tests in Grades 3-8 and most field tests associated with Regents Exams keep to a minimum the amount of stand-alone field testing that is necessary for students and schools across the State by restricting their length to one brief, 40-minute (one class period) session. For the Grades 3-8 ELA and Math Tests, we are able to further reduce the amount of participation needed in stand-alone field tests by embedding some multiple-choice field test questions into the operational tests that are administered in the spring. Given current constraints it would not be possible to eliminate these brief field tests without making the operational test sessions too long or adding a fourth test session to each of the Grades 3-8 ELA and Math Tests.

The American Educational Research Association, American Psychological Association, and National Council on Measurement in Education states in Standards for Education and Psychological Testing that in field testing, the population “should be as representative as possible of the population(s) for which the test is intended” (Standard 3.8).

The participation of all schools is essential to ensure that all New York State operational assessments are fair and valid. Each question on every standardized test administered across this nation, from the SAT to the ACT to the MCAS (Massachusetts' Grade 3-8 assessments), must be field tested to ensure its validity. Budget constraints, coupled with New York State’s practices of scoring the exams locally and making public many of the exam questions following the test administration, make it essential that most test questions be tried out in required stand-alone field tests.

4. COSTS:

(a) Costs to State government: None.

(b) Costs to local government: None.

(c) Costs to private regulated parties: None.

(d) Costs to regulating agency for implementation and continued administration of this rule: None.

The proposed amendment only affirms existing requirements for public and charter schools to participate in all aspects of the federally and state required assessments and will not impose any costs beyond those inherent under applicable State and federal law. NYS field tests are administered to students during the regular school day by the same teachers and paraprofessionals who ordinarily provide regular instruction to the student. There is no need for districts to hire any additional staff in order to comply with the amended regulations. All costs associated with the administration in schools of NYS field tests are borne by the State Education Department. Such costs include the printing of field test materials and shipping of materials to and from the schools. The proposed amendment does not impose any additional costs to the State Education Department beyond those inherent in overseeing the administration of field tests.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3 and 100.4 of the Commissioner’s Regulations. The amendment will not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district, beyond those inherent in applicable State and federal law.

Pursuant to the proposed amendment, school districts shall cooperate fully with administering to their students the field tests assigned to their schools as an essential component of the development of future State tests.

6. PAPERWORK:

The proposed amendment does not impose any additional recordkeeping, reporting or other paperwork requirements. The proposed amendment makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations. All grading and printing of field test materials associated with the administration in schools of NYS field tests are done by the State Education Department.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or federal requirements. The proposed amendment merely makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations, and is otherwise necessary to comply with federal requirements as discussed below under Federal Standards.

8. ALTERNATIVES:

New York State has been able to reduce somewhat the volume of stand-alone field testing that schools are required to administer by embedding some multiple-choice field test questions into the operational grades 3-8 ELA and math tests that are administered each spring. However, budget constraints, coupled with New York State’s practices of scoring the exams locally and making public many or all of the exam questions following the test administration, make it essential that most test questions be tried out in required stand-alone field tests. Given current constraints it would not be possible to eliminate stand-alone field tests without making the operational test sessions too long or adding additional test sessions to each of the operation tests.

9. FEDERAL STANDARDS:

New York State is required to administer all of its elementary- and intermediate-level State assessments and many of its high school-level Regents Exams in order to comply with the federal Elementary and Secondary Education Act (ESEA). In addition, these State exams must meet rigorous technical standards on an ongoing basis to be approved by the United States Department of Education (USDE), through a process known as Peer Review. It would not be possible for New York State to continue to be in full compliance with the ESEA without the required participation of representative samples of New York State schools in the stand-alone field tests for which they have been selected.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties can achieve compliance with the proposed rule by its effective date. The proposed amendment merely makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations. The amendment will not impose any additional costs or compliance requirements on school districts beyond those inherent in the applicable federal and State laws.

Small Businesses:

The proposed amendment merely serves to explicitly affirm the responsibility of schools to participate in the essential field test component of the New York State examination programs enumerated in sections 100.2, 100.3, and 100.4 of the Regulations of the Commissioner of Education. The proposed amendment does not impose any economic impact or 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.

Local Governments:

1. EFFECT OF RULE:

The proposed amendment applies to each public school district and charter school in the State, and to those nonpublic schools that administer State examinations.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment does not impose any additional compliance requirements beyond those inherent under applicable State and federal law. The proposed amendment makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations.

Pursuant to the proposed amendment, schools shall cooperate fully with administering to their students the field tests assigned to their schools as an essential component of the development of future State tests.

3. PROFESSIONAL SERVICES:

The proposed amendment makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s regulations. The proposed amendment imposes no additional professional services requirements on school districts beyond those inherent under applicable State and federal law.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any costs beyond those inherent under applicable State and federal law. The proposed amendment merely serves to explicitly affirm the responsibility of schools to participate in the essential field test component of the New York State examination programs enumerated in sections 100.2, 100.3, and 100.4 of the Regulations of the Commissioner of Education.

NYS field tests are administered to students during the regular school day by the same teachers and paraprofessionals who ordinarily provide regular instruction to the student. There is no need for districts to hire any additional staff in order to comply with the amended regulations. All costs associated with the administration in schools of NYS field tests are borne by the State Education Department. Such costs include the printing of field test materials and shipping of materials to and from the schools.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements on school districts. Economic feasibility is discussed in the Compliance Costs section above.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any additional compliance requirements or costs beyond those inherent under applicable State and federal laws.

The proposed amendment will make explicit the existing requirement that all schools administer the field tests and will ensure that:

• responsibilities for administering field tests are distributed in a fair and equitable manner across all school districts in the State;

• New York State students continue to benefit from sustained high rates of school participation in their assigned field tests so that fair and valid future State tests can be developed; and

• the need does not arise to add to the field testing assignments distributed to cooperating school districts in order to compensate for those districts that otherwise refuse to cooperate with their assigned field tests.

The Department’s goal is to require the least amount of field testing necessary to build and administer high quality assessments that provide accurate information about student achievement. All field tests associated with New York State tests in grades 3-8 tests and most field tests associated with Regents Exams keep to a minimum the amount of stand-alone field testing that is necessary for students and schools across the State by restricting their length to one brief, 40-minute (one class period) session. For the grades 3-8 ELA and Math Tests we are able to further reduce the amount of participation needed in stand-alone field tests by embedding some multiple-choice field test questions into the operational tests that are administered in April/May. Given current constraints it would not be possible to eliminate these brief field tests without making the operational test sessions too long or adding a fourth test session to each of the grades 3-8 ELA and Math Tests.

The American Educational Research Association, American Psychological Association, and National Council on Measurement in Education states in Standards for Education and Psychological Testing that in field testing, the population “should be as representative as possible of the population(s) for which the test is intended” (Standard 3.8).

The participation of all schools is essential to ensure that all New York State operational assessments are fair and valid. Each question on every standardized test administered across this nation, from the SAT to the ACT to the MCAS (Massachusetts' Grade 3-8 assessments), must be field tested to ensure its validity. Budget constraints, coupled with New York State’s practices of scoring the exams locally and making public many of the exam questions following the test administration, make it essential that most test questions be tried out in required stand-alone field tests.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment. Copies have also been provided for review and comment to the chief school officers of the five big city school districts and to charter schools. Copies were also provided for review and comment to the Commissioner’s Advisory Panel of Nonpublic Schools.

8. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment imposes no additional compliance requirements or costs on regulated parties, but merely makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s regulations. Accordingly, there is no need for a shorter review period.

The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to each public school district and charter school in the State and to those nonpublic schools that administer State examinations, including those schools 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 does not impose any additional compliance requirements beyond those inherent under applicable State and federal law. The proposed amendment makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations.

Pursuant to the proposed amendment, schools shall cooperate fully with administering to their students the field tests assigned to their schools as an essential component of the development of future State tests.

The proposed amendment does not impose any additional professional services requirements.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any costs beyond those inherent under applicable State and federal law. The proposed amendment merely serves to explicitly affirm the responsibility of schools to participate in the essential field test component of the New York State examination programs enumerated in sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations.

NYS field tests are administered to students during the regular school day by the same teachers and paraprofessionals who ordinarily provide regular instruction to the student. There is no need for districts to hire any additional staff in order to comply with the amended regulations. All costs associated with the administration in schools of NYS field tests are borne by the State Education Department. Such costs include the printing of field test materials and shipping of materials to and from the schools.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any additional compliance requirements or costs beyond those inherent under applicable State and federal laws. Because such laws upon which the proposed amendment is based must uniformly apply to all affected schools throughout 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.

The proposed amendment will make explicit the existing requirement that all schools administer the field tests and will ensure that:

• responsibilities for administering field tests are distributed in a fair and equitable manner across all school districts in the State;

• New York State students continue to benefit from sustained high rates of school participation in their assigned field tests so that fair and valid future State tests can be developed; and

• the need does not arise to add to the field testing assignments distributed to cooperating school districts in order to compensate for those districts that otherwise refuse to cooperate with their assigned field tests.

The Department’s goal is to require the least amount of field testing necessary to build and administer high quality assessments that provide accurate information about student achievement. All field tests associated with New York State tests in grades 3-8 tests and most field tests associated with Regents Exams keep to a minimum the amount of stand-alone field testing that is necessary for students and schools across the State by restricting their length to one brief, 40-minute (one class period) session. For the Grades 3-8 ELA and Math Tests we are able to further reduce the amount of participation needed in stand-alone field tests by embedding some multiple-choice field test questions into the operational tests that are administered in April/May. Given current constraints it would not be possible to eliminate these brief field tests without making the operational test sessions too long or adding a fourth test session to each of the Grades 3-8 ELA and Math Tests.

The American Educational Research Association, American Psychological Association, and National Council on Measurement in Education states in Standards for Education and Psychological Testing that in field testing, the population “should be as representative as possible of the population(s) for which the test is intended” (Standard 3.8).

The participation of all schools is essential to ensure that all New York State operational assessments are fair and valid. Each question on every standardized test administered across this nation, from the SAT to the ACT to the MCAS (Massachusetts' Grade 3-8 assessments), must be field tested to ensure its validity. Budget constraints, coupled with New York State’s practices of scoring the exams locally and making public many of the exam questions following the test administration, make it essential that most test questions be tried out in required stand-alone field tests.

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.

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment imposes no compliance requirements or costs on regulated parties, but merely makes explicit the existing requirement that schools administer to their students the field tests that are essential to the development of the State tests that schools administer in accordance with sections 100.2, 100.3, and 100.4 of the Commissioner’s Regulations. Accordingly, there is no need for a shorter review period.

The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 16 of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

The proposed amendment only serves to explicitly affirm the responsibility of schools to participate in the essential field test component of the New York State examination programs enumerated in sections 100.2, 100.3, and 100.4 of the Regulations of the Commissioner of Education. The proposed amendment will not have a substantial adverse impact on job or employment opportunities. Because it is evident from the nature and purpose of the proposed amendment that it will have no impact on jobs or employment opportunities, no further measures were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.