Instructional Time for State Aid Purposes
NY-ADR
8/29/18 N.Y. St. Reg. EDU-03-18-00001-E
NEW YORK STATE REGISTER
VOLUME XL, ISSUE 35
August 29, 2018
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY RULE MAKING
I.D No. EDU-03-18-00001-E
Filing No. 758
Filing Date. Aug. 10, 2018
Effective Date. Aug. 11, 2018
Instructional Time for State Aid Purposes
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 175.2 and 175.5 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101, 207, 1704 and 3604
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
At its December 2017 meeting, the Board of Regents discussed a months-long process of stakeholder engagement and feedback related to the minimum instructional time required for State Aid. At its April 2018 meeting, the Board of Regents adopted an emergency regulation to reform the existing instructional requirement, which is based on 180 days with a minimum number of instructional hours each day, to 180 days with a minimum number of instructional hours provided over the course of the school year. The proposed amendment also provides clarity around existing procedures relating to the scheduling of examinations, superintendent conference days, and extraordinary weather conditions. These revisions will provide school districts with maximum flexibility in providing instructional time for their students. However, based on public comment received during the second public comment period required under the State Administrative Procedure Act, the Department made an additional change to the proposed amendment regarding the calculation of superintendents’ conference days at its June meeting. In addition, in order to ensure that the changes became effective on July 1, 2018, the Board of Regents adopted the proposed amendment as an emergency measure at its June meeting.
It is anticipated that the revised rule will be presented for adoption as a permanent rule at the September 2018 Board of Regents meeting, which is the first scheduled meeting after expiration of the 30-day public comment period prescribed in the State Administrative Procedure Act for State agency rule makings and the permanent rule will not be effective until October 3, 2018. However, the June emergency action will expire on August 10, 2018. Therefore, emergency action is needed at the July 2018 meeting in order to ensure that the revised rule adopted as an emergency measure at the June 2018 meeting remains continuously in effect until it can be permanently adopted at the September meeting and to ensure school districts are on notice of the revised rule prior to the 2018-2019 school year so that they can finalize their school calendars and complete any collective bargaining agreement negotiations needed to comply with the proposed amendment prior to the start of the school year.
Subject:
Instructional Time for State Aid Purposes.
Purpose:
To eliminate the current daily minimum instructional hour requirement and replace it with an aggregate yearly requirement.
Text of emergency rule:
That section 175.5 of the Regulations of the Commissioner of Education is repealed and a new section 175.5 is added, effective August 11, 2018, to read as follows:
Section 175.5. Minimum instructional hours and use of superintendents’ conference days for State aid purposes.
(a) Purpose. The provisions of this section are intended to provide school districts with flexibility in meeting the 180-day requirement in order to receive State aid pursuant to Education Law § § 1704(2) and 3604(7) for actual instructional time provided to students. Nothing in this section shall be construed to preclude school districts from lengthening the school day and/or school year beyond the annual minimum instructional requirement for both instructional and non-instructional activities, including but not limited to, homeroom periods, lunch, recess, staff development activities, parent-teacher conferences, or any other purpose the school district has determined is necessary for the development of the whole child and/or to improve student achievement.
(b) Definition. “Instructional hours” shall mean an hour or a fraction of an hour, during which students are receiving instruction from a certified teacher pursuant to Part 80 of this Title in an academic subject and/or periods of time during which students are engaged in supervised study activities, including completing homework and/or the review of homework. Instructional hours shall not include periods of time where instruction and/or supervised study time is not provided to students, such as lunch or recess.
(c) Annual Hourly Requirement. Commencing with the 2018-2019 school year, for the purpose of apportionment of State aid, any school district must be in session for at least 180 school days, and during such 180 days the school district must meet the following minimum annual instructional hour requirement:
(1) For pupils in half-day kindergarten, a minimum of 450 instructional hours.
(2) For pupils in full-day kindergarten and grades one through six, a minimum of 900 instructional hours.
(3) For pupils in grades seven through twelve, a minimum of 990 instructional hours.
(d) School calendar development. To ensure that school districts meet the annual instructional requirement in order to receive State aid, it is recommended that school districts establish school year calendars that exceed the minimum requirements as provided herein by at least the average number of emergency days that such district has taken over the previous five school years.
(e) Unscheduled school delays and early releases. Instructional hours that a school district scheduled but did not execute, either because of a delay to the start of a school day or an early release, due to extraordinarily adverse weather conditions, impairment of heating facilities, insufficiency of water supply, shortage of fuel, destruction of a school building, or such other cause as may be found satisfactory by the Commissioner, may still be considered as instructional hours for State aid purposes for up to two instructional hours per session day, provided, however, that the superintendent shall certify to the Department, on a form prescribed by the Commissioner, that an extraordinary condition existed on a previously scheduled session day and that school was in session on that day.
(f) Double or overlapping sessions. The provisions of subdivision (c) of this section shall not apply to schools which operate on double or overlapping sessions, provided the written approval of the Commissioner to operate such sessions has been obtained prior to the scheduling of such sessions for any school year.
(g) The provisions of subdivision (c) of this section shall not apply where the prior written approval of the Commissioner has been obtained to conduct, in a given school year, an experimental or alternative program involving daily sessions consisting of fewer hours than would otherwise be required by the provisions of subdivision (c) of this section.
(h) Use of superintendents’ conferences.
(1) Superintendents’ conferences to provide staff development activities that are related to implementation of the new high learning standards and assessments, general staff orientation, curriculum development, in service education, or parent-teacher conferences may be credited toward the annual instructional requirement. Provided, however, that the average scheduled hours for a school day based on the school calendar (e.g., 5 hours for elementary, 5.5 for secondary) shall be considered one superintendents’ conference day authorized pursuant to Education Law § 3604(8) and a district may use up to the product of four such hour amounts in a given school year, and provided that such conferences occur on days when the regular day schools of the school district may legally be in session, and provided further that such conference days may not be scheduled for routine school administrative matters such as the grading of assignments, the preparation of pupil assignments, record-keeping, or the preparation of lesson plans. Such superintendents’ conferences authorized pursuant Education Law § 3604(8), may be held, if the school district so elects, in the last two weeks of August, subject to collective bargaining requirements pursuant to article fourteen of the Civil Service Law.
(i) Regents examinations and other state assessments.
(1) Regents examinations. For only the grade levels sitting for a Regents examination, a district may schedule the average number of instructional hours it provides on non-examination days for days on which Regents examinations or Rating Day(s) are held, and have such hours count toward the annual minimum hourly requirement. On such days, attendance need not be taken, and attendance may not be assumed and claimed for State aid purposes under any circumstances. If grades seven through twelve are housed in the same building, school district officials may excuse the students from any grade level for which an examination is not being offered if their class schedules are disrupted by the Regents examination schedule and if staff are needed to properly administer such examinations.
(2) New York State Assessments. Session days during which New York State Assessments, including but not limited to the Grades 3-8 English language arts and mathematics assessments, are administered are days on which attendance must be taken and which instructional hours count toward the annual minimum hourly requirement.
(3) Other state assessments. On session days during which alternative and/or pathway assessments, as defined in section 100.2(f) and (mm) of this Title, are administered, attendance must be taken and only actual instructional hours for pupils in attendance, including the examination time, may be included within the instructional hour requirement. Grade levels that are excused from instruction on those days may not have hours count toward the requirement.
(j) Short session aid deduction. For the purposes of reducing State aid pursuant to Education Law § 3604(7), “one day” shall mean:
(1) For pupils in half-day kindergarten, two and one-half hours.
(2) For pupils in full-day kindergarten and grades one through six, five hours.
(3) For pupils in grades seven through twelve, five and one-half hours.
In the event that a school district has a total deficiency in hours that equals a fraction of hours per day pursuant to this paragraph, such deficiency shall be rounded up to the next whole day.
(k) Nothing in this section shall be construed to abrogate any conflicting provisions of any collective bargaining agreement in effect on June 30, 2018 during the term of such agreement and until the entry into a successor collective bargaining agreement to the extent required under article 14 of the Civil Service Law.
Section 175.2 of the Regulations of the Commissioner of Education is amended, effective July 1, 2018, to read as follows:
Section 175.2. Attendance records for examination days for State aid purposes.
Each school district in which Regents examinations are administered in January, April and June may omit the record of attendance for pupils in the grade levels in which such examinations are given, on the days designated for the administration of such examinations, for the purpose of computing average daily attendance for State aid. The record of attendance of pupils of the grade level in which the Regents Scholarship examination is given may also be omitted for the day on which such examination is administered. The record of attendance for grades located in the same buildings in which such examinations are administered may be omitted, if it is necessary to suspend instruction for such grades in order to provide adequate staff and space for the administration of such examinations. The hours used on examination days, as well as the days themselves, referred to in this section shall be counted for the purpose of satisfying the minimum instructional hour requirement [that school districts shall provide 180 days of instruction] pursuant to section 175.5 of this Part.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-03-18-00001-P, Issue of January 17, 2018. The emergency rule will expire October 8, 2018.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112, Albany, NY, (518) 474-6400, email: [email protected]
Regulatory Impact Statement
Since publication of a Proposed Rule Making in the State Register on April 25, 2018, the following substantial revisions were made to the proposed rule:
Section 175.5(h)(1) of the Commissioner’s regulations was amended to modify the number of hours that can be credited toward annual instructional time for superintendents’ conference days from 5.0 for elementary grades and 5.5 for secondary grades to the average scheduled school day for those grade levels using the district’s school calendar.
The above changes do not require any revisions to the previously published Regulatory Impact Statement.
Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on April 25, 2018, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments.
Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on April 25, 2018, the proposed rule was revised as set forth in the Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule require revisions to the previously published Rural Area Flexibility Analysis.
Job Impact Statement
The purpose of the proposed amendment to section 175.5 of the Commissioner’s regulations is to provide flexibility to school districts and BOCES on the instructional requirement related to the180 days of instruction required for State aid purposes.
Because it is evident from the nature of the proposed amendments that they 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.
Assessment of Public Comment
The agency received no public comment since publication of the last assessment of public comment.
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