The proposed amendment to subdivision 100.2(ff) relates to the enrollment of youth released or conditionally released from residential facilities. This amendment clarifies the existing requirement that districts designate an employee(s) to be the transition liaison(s) with residential facility personnel, parents, students, and State and other local agencies for the purpose of facilitating a student’s effective educational transition into, between, and out of such facilities to ensure that each student receives appropriate educational and appropriate supports, services, and opportunities; and this amendment also provides an overview of the duties of the liaison(s).

The proposed amendment to subdivision 100.2(m) relates to requirements for the New York State report card for schools and districts. This amendment updates the information to be provided in report cards to align with the provisions of ESSA and requires local educational agencies (LEAs) to post the local report cards on their website, where one exists, to satisfy ESSA’s local report card requirements. If an LEA does not operate a website, the LEA must provide the information to the public in another manner determined by the LEA.

The proposed amendments to 100.18 clarify that this section, which contains provisions relating to implementation of New York’s approved ESEA flexibility waiver, only applies to accountability designations made prior to July 1, 2018, except as otherwise provided in the new section 100.21.

In order to implement the State’s approved ESSA plan, the proposed amendments to section 100.19 clarify that Failing Schools means schools that have been identified as Priority Schools and/or Comprehensive Support and Improvement Schools (CSI) for at least three consecutive years. (See Attachment A for criteria for identification of a Comprehensive Support and Improvement School.) These amendments also clarify that beginning with the 2018-19 school year, removal from receivership will be based upon a school’s status as a CSI rather than as a Priority School.

The proposed creation of section 100.21 implements the new accountability and support and interventions of the State’s approved ESSA plan commencing with the 2018-2019 school year. Such provisions shall include, but not be limited to, the following:

• Subdivision (a) sets forth an applicability clause which says that section 100.21 supersedes paragraphs (p)(1) through (11) and (14) through (16) of section 100.2 and section 100.18, which are the provisions of Commissioner’s Regulations that were in place under the No Child Left Behind Act (NCLB) and the Department’s Elementary and Secondary Education Act (ESEA) flexibility waiver, and that the new section 100.21 shall apply in lieu of such provisions during the period of the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act, and any revisions and extensions thereof, except as otherwise provided in section 100.21. If a provision of section 100.2(p) or of section 100.18 conflicts with section 100.21, the provisions of section 100.21 shall prevail.

• Subdivision (b) defines various terms, which are divided into general definitions, definitions related to school and district accountability, definitions related to school and district accountability designations, and definitions related to interventions for designated schools and districts to implement the new accountability system in New York State’s approved ESSA plan.

• Subdivision (c) outlines the procedures and requirements for registration of public schools, which remain the same as under the previous accountability regulations.

• Subdivision (d) relates to the requirements for the registration of public schools.

• Subdivision (e) provides that, commencing with the 2017-2018 school year results, the Commissioner will annually review the performance of all public schools, charter schools, and school districts in the State. The Commissioner shall determine whether such public school, charter school or school district shall be identified for Comprehensive Support and Improvement (CSI), Targeted Support and Improvement (TSI), or identified as a Target District in accordance with the criteria set forth in subdivision (f) of the regulation.

• Subdivision (f) specifies the differentiated accountability methodology by which schools will be identified as either CSI (which will be identified every three years beginning with the 2018-2019 school year using 2017-2018 school year results) or TSI (which will be identified annually beginning with the 2018-2019 school year), and the methodology for identifying Target Districts. This section describes how six indicators (composite performance, student growth, combined composite performance and growth, English language proficiency, academic progress, and chronic absenteeism) are used in the methodology for identification of elementary and middle schools. This section also details how seven indicators (composite performance; graduation rate; combined composite performance and graduation rate; English language proficiency; academic progress; chronic absenteeism; and college, career, and civic readiness) are used in the methodology for identifying high schools. This subdivision also explains how each of these indicators is computed, how these computations are converted into a Level 1-4 for each accountability group for which a school or district is accountable, and how these levels assigned to the accountability groups are used to determine whether a school will be identified as in Good Standing, TSI, or CSI, and whether a district will be identified as a District in Good Standing or a Target District. This subdivision also contains provisions regarding the identification of high schools for CSI based on graduation rates below 67% beginning with 2017-18 school year results. In addition, this subdivision contains provisions regarding the identification of TSI schools for additional support as required by ESSA if an accountability group for which a school is identified performs at a level that would have caused the school to be identified as CSI if this had been the performance of the “all students” group.

• Subdivision (g) provides that preliminarily identified CSI and TSI schools and Target Districts shall be given the opportunity to provide the Commissioner with any additional information concerning extenuating or extraordinary circumstances faced by the school or district that should be cause for the Commissioner to not identify the school as CSI or TSI or the district as a Target District.

• Subdivision (h) establishes the public notification requirements upon receipt of a designation of CSI or TSI school or a Target District.

• Subdivision (i) specifies the interventions that must occur in schools identified as CSI or TSI, as well as districts identified as Target Districts. This section describes the requirements for identified schools as they relate to parental involvement, participatory budgeting, school comprehensive education plans, and school choice. This subdivision also describes the increased support and oversight that schools that fail to improve will receive. This subdivision also outlines the interventions for schools that, beginning with 2017-18 and 2018-19 school year results, has a Weighted Average Achievement Level of 1 or 2 and that fails for two consecutive years to meet the 95% participation rate requirement for annual state assessments for the same accountability group for the same accountability measure and are not showing improvement in the participation rate for that accountability group. This subdivision also specifies the support that districts must provide to a school that is not CSI or TSI but has performed at Level 1 for an accountability group for an accountability measure.

• Subdivision (j) establishes the criteria for a school’s or a district’s removal from an accountability designation.

• Subdivision (k) provides the criteria for the identification of schools for public school registration review. Under this subdivision, the Commissioner may place under preliminary registration review any school identified for receivership; any school that is identified as CSI for three consecutive years; and any school that has been identified as a poor learning environment. Also, under this subdivision, a school under registration review shall also be identified as a CSI school, and subject to all the requirements of that designation.

• Subdivision (l) specifies the process by which the Commissioner will place a school under registration review; and the required actions of the district and the school related to the designation. This subdivision also describes the requirements for receivership schools that have also been identified for registration review.

• Subdivision (m) specifies the criteria and process for removal of schools from registration review, school phase-out or closure.

The proposed amendments to Part 120 update provisions in the existing regulations pertaining to the sunsetting of No Child Left Behind requirements regarding highly qualified teachers and provide for the continuation under ESSA of provisions pertaining to persistently dangerous schools and unsafe school choice and updates to public school choice provisions.

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on October 3, 2018, the following substantial revisions were made to the proposed rule:

Principal Support Report and Principal Needs Assessment (§ 100.21(b)(4)(xii) and (xiii))

• The name of the report and the needs assessment has been changed to “Leadership Team Support Report” and “Leadership Team Needs Assessment” to reflect that the focus of these documents should be the district and school leadership teams, not just the principal.

Basis for Districts to petition the Commissioner to revise MIPs. (§ 100.21(b)(2)(vi))

• Revised to allow districts to be able to petition the Commissioner to revise MIPs if the district seeks to correct an error in the data used to establish a MIP for a school or district. Would allow the Commissioner to revise MIPs to reflect the administration of new assessments or changes in state standards.

Computation of Combined Composite Performance and Growth Level (§ 100.21(f)(1)(i)(c))

• In a small percentage of cases, the current methodology results in a Combined Composite Performance and Growth Level that is lower than the unweighted average (rounded down) of the Composite Performance Level and Student Growth Level. For example, in a small percentage of cases, a subgroup with a Composite Performance Level of 2 and a Student Growth Level of 4 would be assigned a Combined Composite Performance and Growth Level of 2. This revision would result in the subgroup receiving a Combined Composite Performance and Growth Level of 3.

Computation of Academic Progress Level, ELP level and Student Growth Level (§ 100.21(f)(1)(i)(b), § 100.21(f)(1)(i)(d), § 100.21(f)(1)(i)(e), § 100.21(f)(2)(i)(d), § 100.21(f)(2)(i)(e))

• As the regulations currently allow the Commissioner to do for the graduation rate indicator; chronic absenteeism indicator; and college, career, and civic readiness indicator, the Commissioner would be able assign an Academic Progress Level 1 in ELA or math to a subgroup whose Performance Index is below a Performance Index established by the Commissioner and the Commissioner may assign an Academic Progress Level 2 in ELA or math to a subgroup whose Performance Index is at or above a Performance Index established by the Commissioner. Similar provisions would also be added for the ELP and Student Growth Indicators. These provisions would allow the Commissioner to take into account changes to the assessments and standards that have taken place.

Computation of Combined Composite Performance and Graduation Rate Level (§ 100.21(f)(2)(i)(c))

• In a small percentage of cases, the current methodology results in a Combined Composite Performance and Graduation Rate Level that is lower than the unweighted average of the Composite Performance Level and Graduation Rate Level. For example, in a small percentage of cases, a subgroup with Composite Performance Level of 2 and a Graduation Rate Level of 4 would be assigned a Combined Composite Performance and Graduation Rate Level of 2. This revision would result in the subgroup receiving a Combined Composite Performance and Graduation Rate Level of 3.

Identification of Target Districts (§ 100.21(f)(3)(iii))

• Clarifies that a school district must meet the criteria for identification for the all students group for two consecutive years in order to be identified as a Target District, except for Focus Districts, which may be identified based on 2017-18 school year data only.

Assignment of teachers to schools identified for Comprehensive Support and Improvement (§ 100.21(i)(1)(i)(c))

• When a school is identified for Comprehensive Support and Improvement, teacher transfers are limited to teachers rated effective or highly effective pursuant to Education Law § 3012-d by a school district in the previous school year, to the extent possible and subject to collective bargaining as required under article 14 of the Civil Service Law, and may require that any successor collective bargaining agreement authorize such transfers to the extent possible and unless otherwise prohibited by law.

Identification and appointment of leadership and staff of a new school that a district seeks to register to replace a SURR or receivership school that is phasing out or closing (§ 100.21(l)(5)(iv))

• District must establish a process for identifying and appointing the leadership and staff of the new school, which must result in the selection of school leaders with a track record of success as school leaders and a staff that consists primarily of experienced teachers (i.e., at least three years of teaching experience) who are certified in the subject area(s) they will teach, have been rated Effective or Highly Effective pursuant to Education Law § 3012-d in each of the past three years, and are not currently assigned to the school to be closed or phased out, unless approval has been granted by the Commissioner to waive any of these requirements, to the extent possible and subject to collective bargaining as required under article 14 of the Civil Service Law, and may require that any successor collective bargaining agreement authorize such appointments, to the extent possible, unless otherwise prohibited by law.

The above changes require that the NEEDS AND BENEFITS section of the previously published Regulatory Impact Statement be revised. For the complete Revised Regulatory Impact Statement please visit the following website: http://www.counsel.nysed.gov/rulesandregs

A Notice of Proposed Rulemaking was published in the State Register on May 9, 2018. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2018. A second Notice of Emergency Adoption and Revised Rule Making was published in the State Register on October 3, 2018. A Notice of Emergency Adoption was published in the State Register on November 21, 2018. However, no revisions are required to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments published on October 3, 2018.

A Notice of Proposed Rulemaking was published in the State Register on May 9, 2018. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2018. A second Notice of Emergency Adoption and Revised Rule Making was published in the State Register on October 3, 2018. A Notice of Emergency Adoption was published in the State Register on November 21, 2018. However, no revisions are required to the previously published Rural Area Flexibility Analysis published on October 3, 2018.

A Notice of Proposed Rulemaking was published in the State Register on May 9, 2018. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2018. A second Notice of Emergency Adoption and Revised Rule Making was published in the State Register on October 3, 2018. A Notice of Emergency Adoption was published in the State Register on November 21, 2018. However, no revisions are required to the previously published Job Impact Statement published on October 3, 2018.

*Note: A Notice of Emergency Adoption and Revised Rulemaking was published in the State Register on October 3, 2018. A Notice of Emergency Adoption was also published in the State Register on November 21, 2018 and included an Assessment of Public Comment received until October 25, 2018. This Assessment of Public Comment includes comments received from October 3, 2018 through November 2, 2018 along with comments received after the end of the previous public comment period which concluded on August 17th.

1. COMMENT:

Commenter, an education software company, sought information related to the ability of school districts to use ESSA funds to purchase a particular product.

DEPARTMENT RESPONSE:

No response necessary as the comment is outside the scope of the proposed rulemaking.

2. COMMENT:

Commenter, a parent, wrote to express his frustration about the learning and environmental conditions of a particular school, which was designated as a priority school under the previous accountability system required for compliance with No Child Left Behind. Commenter noted that his older child received a transfer to a better performing school as a result of the school’s designation as a priority school and is pleased with that child’s current school placement.

DEPARTMENT RESPONSE:

As evidenced by New York’s federally approved ESSA plan and this proposed rulemaking, the Department aims to implement an accountability system that will support the education of all students in New York. However, this particular comment is outside the scope of the proposed rulemaking and, as such, no changes are necessary.

3. COMMENT:

Several commenters echoed previously received comments and expressed concern relating to participation rate, parental rights, and the value of the assessments.

DEPARTMENT RESPONSE:

Please see response to Comment #8 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

4. COMMENT:

Several commenters expressed previously received concerns regarding the provisions that permit the Commissioner to impose a financial penalty by requiring districts to set aside Title I funds to implement the recommendations of a participation rate audit if a school has failed to improve the participation rate for an identified group in the subject for which the group was identified for three years following first implementation of a participation rate improvement plan.

DEPARTMENT RESPONSE:

Please see response to Comment #13 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

5. COMMENT:

Several commenters expressed frustration with the overall system of state assessments and the common core learning standards.

DEPARTMENT RESPONSE:

Please see response to Comment #39 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

6. COMMENT:

Several commenters noted that while the revisions were a step in the right direction, commenters expressed a desire to go farther to reduce or eliminate the need for certain schools to develop participation rate improvement plans. A number of commenters felt it was unfair that schools that had a Weighted Average Achievement average of Level 3 or 4 would not have to do a participation rate improvement plan, while lower performing schools, which might be educating higher need students, with similar participation rates would still be required to develop plans.

DEPARTMENT RESPONSE:

The Department appreciates the feedback received from stakeholders, and has attempted to balance the needs of New York State students and schools with the requirements of the federal law and the State’s approved ESSA plan. While no revisions are necessary at this time, the Department will continue to work with stakeholders and issue further clarifying guidance in the future to the extent possible within the statutory requirements.

7. COMMENT:

Commenter commended the Department for previous revisions but sought additional revisions including: changing the name of the Principal Support Report and Principal Needs Assessment to Leadership Team Report and Needs Assessment and including the superintendent in those covered by the report.

DEPARTMENT RESPONSE:

The proposed rulemaking has been revised to change the name of the report and the needs assessment to the “Leadership Team Support Report” and “Leadership Team Needs Assessment” to reflect that the focus of these documents should be the district and school leadership teams, not just the principal.

8. COMMENT:

Commenter recommends delaying the implementation of the chronic absenteeism indicator for one year and to include prekindergarten and kindergarten into the chronic absenteeism performance indicator.

DEPARTMENT RESPONSE:

As it relates to the grade levels of students to be included in the chronic absenteeism rate, please see response to Comment #85 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018. The Department does not believe any revisions are necessary for the timeline for the chronic absenteeism indicator at this time.

9. COMMENT:

Commenter also sought revision of the definition of continuous enrollment so that it is based on a student enrolled on BEDS day through the test administration period.

DEPARTMENT RESPONSE:

Please see the response to Comment #80 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

10. COMMENT:

Several commenters expressed their appreciation for revisions that the Regents made to the regulations which included stronger provisions to ensure parental involvement in the creation of school improvement plans; strengthening language on the importance of translation of parent notices; adopting an explicit timeline and methodology to incorporate the new indicator holding schools accountable for reducing out-of-school suspensions; requiring improvement on both the Core Subject Performance Index and Weighted Average Achievement Index as part of the annual achievement progression; and acknowledging that participatory budgeting is just one of several ways a school can increase parent and student engagement.

Commenters also noted that the Board and Department have worked hard to strike a reasonable balance regarding test participation and commended the Board and Department for improving teacher equity by limiting new teacher transfers into schools identified for Comprehensive Support & Improvement to teachers rated Effective or Highly Effective, subject to applicable collective bargaining agreements and for identifying “Target Districts” as part of the Department’s school improvement strategy.

DEPARTMENT RESPONSE:

No response necessary as the comment is supportive. However, please note that revisions have been made to the rulemaking relative to the transfer of teachers.

11. COMMENT:

Commenter expressed several concerns with the proposed rulemaking and asserts that requiring a participation rate improvement plan is inconsistent with both NYS’s approved plan and is not permitted under ESSA. Commenter argues that the statutory history which led to the inclusion of the 95% participation rate in the No Child Left Behind Act (“NCLB”) prohibits requiring schools to develop participation rate plans when failure to meet the 95% is the result of parental choice, and not systemic or institutional exclusion of certain subgroups of students. The commenter therefore asserts that any consequences for failing to meet the participation rate because of parental choice are not permissible under ESSA.

Commenter further states that including such requirement in the proposed rulemaking amounts to a breach of fiduciary duty by requiring financially vulnerable school districts to expend resources to increase participation. Additionally, the commenter states that there is no research-based evidence relating to the validity of participation rate plans, and that using participation rate data from the 17-18 school year without having previously warned parents of their right to opt-out amounts to a retroactive penalty.

DEPARTMENT RESPONSE:

The Department does not believe that requiring certain schools to implement a participation rate improvement plan and/or expending funds to implement such a plan in order to assist schools in meeting the participation rates required by ESSA is outside the scope of the statute and no revisions are necessary at this time. Furthermore, the Department notes that the statutory requirement regarding participation in state assessments pre-dates this rulemaking and therefore disagrees that the rulemaking constitutes a “retroactive penalty.”

Please see the responses to Comment #8 and Comment #32 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

12. COMMENT:

Commenter suggests that the Department and the Board of Regents changed course when the accountability calculations were amended to no longer compare the Core Subject Performance Index with the Weighted Average Achievement Index, and take the higher of the two.

DEPARTMENT RESPONSE:

Commenter is correct that changes were made to the ESSA plan initially submitted to the United States Department of Education in order to secure final approval of the State’s plan. See also the response Comment #88 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

13. COMMENT:

Commenter adopted the various arguments put forth by New York State United Teachers in its letter to Commissioner Elia, dated July 19, 2018.

DEPARTMENT RESPONSE:

See the responses to Comments #7, #8, #9, #13, #14 and #15 in the previously published Assessment of Public Comment, published in the State Register on October 3, 2018.

14. COMMENT:

Commenter expressed concern that the accountability calculations in the proposed rulemaking will result in unintended consequences. Commenter also expressed that the Department can and should make additional changes to the approved ESSA plan and revise the rulemaking consistent with such amendments.

DEPARTMENT RESPONSE:

As the Department implements the ESSA plan and implementing regulations, if the Department believes that any additional changes to the plan or the regulations are necessary, the Department may propose any such changes.

15. COMMENT:

Some commenters expressed concern relating to the role of state assessments in teacher evaluations.

DEPARTMENT RESPONSE:

These comments are outside the scope of the regulations. Therefore, no response is necessary.