Implementation of New York's Approved ESSA Plan to Comply with the Provisions of the Every ...

NY-ADR

7/18/18 N.Y. St. Reg. EDU-19-18-00006-ERP
NEW YORK STATE REGISTER
VOLUME XL, ISSUE 29
July 18, 2018
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
 
I.D No. EDU-19-18-00006-ERP
Filing No. 612
Filing Date. Jun. 29, 2018
Effective Date. Jul. 01, 2018
Implementation of New York's Approved ESSA Plan to Comply with the Provisions of the Every Student Succeeds Act
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Amendment of sections 100.2(m), (ff), 100.18, 100.19, Part 120; and addition of section 100.21 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 101, 112(1), 207, 210, 215, 305(1), (2), (20), 309, 3713(1), (2); The Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et. seq. (Public Law 114-95, 129 STAT.1802)
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
On December 10, 2015, the Every Student Succeeds Act (ESSA) was signed into law by President Obama. This bipartisan measure reauthorized the 50-year-old Elementary and Secondary Education Act, which provides federal funds to improve elementary and secondary education in the nation's public schools and requires states and school districts, as a condition of funding, to take a variety of actions to ensure all children, regardless of race, income, background, or where they live, receive the education they need to prepare them for success in postsecondary education, careers, and citizenship. New York State receives approximately $1.6 billion annually in funding through ESSA.
After an extensive, 18-month long public engagement process, the Department, with Board approval, submitted New York State’s ESSA plan to the USDE for review on September 17, 2018. Subsequently, the Department met regularly with the USDE to provide clarifications on the plan. On January 17, 2018, the USDE approved the State’s plan. In January 2018, the Department provided the Board of Regents with an update on the approved plan and in March 2018, the Department provided an update regarding the financial transparency requirements related to ESSA. In April 2018, the Department provided Board of Regents with a detailed summary of the proposed amendment and the Board of Regents voted to authorize Department staff to publish the proposed amendment in the State Register for the 60-day public comment period so that the Department had an opportunity to receive as much public comment as possible before adoption as an emergency rule for the 2018-2019 school year, as required under ESSA.
In order to conform the Commissioner’s Regulations to the State’s USDE approved ESSA Plan and to prepare for implementation of the plan beginning with the 2018-19 school year, the proposed rulemaking adds a new section 100.21 and amends Commissioner's Regulations sections 100.2(ff), 100.2(m), 100.18, 100.19 and Part 120 to align the Commissioner's Regulations with the approved ESSA plan, relating to New York State's updated accountability system. Adoption of the proposed amendment is necessary to ensure a seamless transition to the new accountability plan under ESSA and will allow school districts the option to demonstrate improvements, by creating improvement plans that address the needs and resource issues found in identified schools.
A Notice of Proposed Rulemaking was published in the State Register on May 9, 2018 and based on comments from the field, revisions were made to the proposed amendment. As a result, a Notice of Emergency Adoption and Revised Rule Making will be published in the State Register on July 18, 2018. Because the Board of Regents meets at scheduled intervals, the September 2018 meeting is the earliest the proposed rule could be presented for adoption, after expiration of the 30-day public comment period required under the State Administrative Procedure Act. However, the 2018-2019 school year begins on July 1, 2018 which is after the expiration of the required 30-day public comment period for revised rule makings and prior to the date which the regulations adopted at the September 2018 meeting could take effect on October 3, 2018. Therefore, emergency adoption is necessary for the preservation of the general welfare to conform the Commissioner's Regulations to timely implement New York State's approved ESSA plan, so that school districts may timely meet school/school district accountability requirements for the 2018-2019 school year and beyond, consistent with the approved ESSA plan and pursuant to statutory requirements. It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at its September 17-18, 2018 meeting.
Subject:
Implementation of New York's approved ESSA plan to comply with the provisions of the Every Student Succeeds Act.
Purpose:
To implement New York's approved ESSA plan and to comply with the provisions of the Every Student Succeeds Act.
Substance of emergency/revised rule (Full text is posted at the following State website: http://www.counsel.nysed.gov/rulesandregs):
The Commissioner of Education proposes to amend sections 100.2(ff), 100.2(m), 100.18, 100.19 and Part 120 of the Regulations of the Commissioner of Education relating to Relating to the implementation of the State’s Approved Every Student Succeeds Act (ESSA) Plan. The following is a summary of the proposed rule:
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. Revisions were made to this subdivision related to changing from 1.5 to 2.0 the weighting for students who take a dual credit course and receive high school credit in the College, Career, and Civic Readiness Index. Revisions were also made to change from 0 to 2.0 the weighting for ELLs who earn a Regents Diploma and Seal of Biliteracy after 4 years in the College, Career, and Civic Readiness Index.
• 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 improvement 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, fail 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. Revisions were made to this subdivision to modify the requirement that a new school replace a closed and restructured SURR/CSI school with staff who consist “primarily” of experienced teachers (at least three years) who have been rated Effective/Highly Effective in each of the past three years, to clarify that this provision is subject to collective bargaining as required under article 14 of the Civil Service Law, and require that any successor collective bargaining agreement authorize such appointments unless otherwise prohibited by law.
• 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.
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on May 9, 2018, I.D. No. EDU-19-18-00006-P. The emergency rule will expire September 26, 2018.
Emergency rule compared with proposed rule:
Substantial revisions were made in section 100.21(f)(2) and (l)(5).
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, NYS Education Department, 89 Washington Avenue, Room 148, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Dr. Lisa Long, NYS Education Department, Office of Accountability, 55 Hanson Place, 4th Floor, Brooklyn, NY 11217, (718) 722-4553, email: ESSAREGCOMMENT@nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Summary of Revised Regulatory Impact Statement (Full text is posted at the following State website:http://www.counsel.nysed.gov/rulesandregs):
1. STATUTORY AUTHORITY:
Ed.L.§ 101 continues existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.
Ed.L. § 112(1) authorizes Commissioner to require schools and school districts to facilitate the prompt enrollment of children who are released or conditionally released from residential facilities.
Ed.L. § 207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on the Department.
Ed.L.§ 210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.
Ed.L. § 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Ed.L.§ 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.
Ed.L. § 305(20) provides Commissioner shall have such further powers and duties as charged by the Regents.
Ed.L. § 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of instruction.
Ed.L. § 3713(1) and (2) authorize State and school districts to accept federal law making and appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.
The Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT.1802).
2. LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above statutory authority and is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
3. NEEDS AND BENEFITS:
On December 10, 2015, ESSA was signed into law by President Obama. This bipartisan measure reauthorized the 50-year-old ESEA, which provides federal funds to improve elementary and secondary education in the nation's public schools and requires states and school districts, as a condition of funding, to take a variety of actions to ensure all children, regardless of race, income, background, or where they live, receive the education they need to prepare them for success in postsecondary education, careers, and citizenship. New York State receives approximately $1.6 billion annually in funding through ESSA.
After an extensive, 18-month long public engagement process, the Department, with Board approval, submitted New York State’s ESSA plan to the USDE for review on September 17, 2018. On January 17, 2018, the USDE approved the State’s plan. In April 2018, the Department provided the Board of Regents with a description of the draft regulatory terms and the Board directed the Department to finalize the draft regulatory terms for publication in the State Register.
The rule will ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan, and provide school districts with the opportunity to demonstrate improvements by creating improvement plans that address the needs and resource issues found in identified schools.
Revisions were made to the proposed amendment as follows:
• First, the Department proposes changing from 1.5 to 2.0 the weighting for students who take a dual credit course and receive high school credit in the College, Career, and Civic Readiness Index.
• Second, the Department proposes changing from 0 to 2.0 the weighting for ELLs who earn a Regents Diploma and Seal of Biliteracy after 4 years in the College, Career, and Civic Readiness Index.
• The Department also proposes modifying the requirement that a new school replace a closed and restructured SURR/CSI school with staff who consist “primarily” of experienced teachers (at least three years) who have been rated Effective/Highly Effective in each of the past three years, to clarify that this provision is subject to collective bargaining as required under article 14 of the Civil Service Law, and require that any successor collective bargaining agreement authorize such appointments unless otherwise prohibited by law.
For a more complete explanation please see the Regulatory Impact Statement posted here: http://www.counsel.nysed.gov/rulesandregs
4. COSTS:
Cost to the State: The proposed rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
Costs to local government: The rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802), but rather requires, in some instances, that school districts spend a portion of their Title I, Title IIA, and Title III funds on specific programs and activities, except that a school identified for Comprehensive Support and Improvement may in some cases need to spend an amount that is anticipated to be less than $10,000 per year in state and/or local funds to meet the participatory budgeting requirements of the regulations. The rule also provides school districts with substantial additional flexibility in how they use program funds compared to current regulations pertaining to schools identified as Priority or Focus.
Based upon the requirements described in the rule to implement certain activities based upon a school or district’s accountability status, there may be some associated costs. These activities, include, but are not necessarily limited to, annual notifications of accountability status; participation in comprehensive needs assessments; conduct of parent, staff and student surveys; and development and implementation of improvement plans. For school districts with schools receiving Title I, IIA or III funding, these funds may be used to pay the associated costs. School districts with Title I funded schools that are designated as Comprehensive Support and Improvement (CSI) schools or Targeted Support and Improvement (TSI) schools, will also be required to use their Title I, IIA, III funding to implement programs and services in CSI and TSI schools that address the needs and resource limitations found as a result of the needs assessments conducted at the schools. CSI schools that fail to show progress on their Annual Achievement Progression targets for two consecutive years will be required to enter into a partnership with a BOCES, Regional Bilingual Education Resource Network, Teacher Center or other Regional Technical Assistance Center, or other technical assistance provider as determined by the Commissioner to support the implementation of the Comprehensive Education Plan. Depending on the nature of such partnership, and whether such partnership already exists, a school district may incur costs to implement this provision of the regulations.
In some instances, school districts newly identified as Target Districts with schools that are designated as CSI or TSI that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources. However, it is anticipated that non-Title I schools will be eligible to receive federal 1003 School Improvement Grants that can be used to fund these activities.
Districts that have schools that fail to meet the 95% participation rate requirements must develop a participation rate improvement plan, which in some cases beginning in the 2021-22 school year shall include partnering with a BOCES or other technical assistance provider to conduct a participation rate audit and to update the participation rate improvement plan. Because these partnerships will likely vary significantly in cost based on the number of schools for which a plan is required no estimate can be made at this time regarding required costs. Similarly districts that have schools that will be closed or phased out as a consequence of these regulations may incur costs in developing and implementing a closure or phase out plan.
In other instances, school districts and their schools will be designated as in Good Standing, when under the present accountability system these school districts and schools might otherwise have been designated as Priority, Focus or Local Assistance Plan schools. In these cases, school districts may incur cost savings as they will no longer be required to participate in site visits or in the other previously required interventions for districts with such designations. In addition, a number of previous requirements for schools identified as Priority or Focus have been reduced or eliminated, thereby providing districts with increased flexibility in use of funds. For example, the current requirement for Title I Schools that are designated as Priority and Focus Schools to offer public school choice has been replaced by a substantially more limited public school choice program for a subset of Comprehensive Support and Improvement Schools. Because of the number of school districts and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from district-to-district, as well as school-to-school, depending on the school and district designation, the district’s choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.
Cost to private regulated parties: None.
Cost to regulating agency for implementation and continued administration of this rule: None.
5. LOCAL GOVERNMENT MANDATES:
The rule is necessary to assist school districts to be able to meet the provisions of New York’s approved ESSA plan. The proposed regulation will require districts with schools identified as CSI or TSI to make significant changes to these schools’ educational programs. See the response to Question #3, Needs and Benefits in the full Regulatory Impact Statement available here: http://www.counsel.nysed.gov/rulesandregs
6. PAPERWORK:
The proposed rule generally contains paperwork requirements consistent with those in existing regulations and does not generally impose any new paperwork requirements beyond those consistent with the above statutory authority and the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802). For further information please see the above response to Question #3, Needs and Benefits in the full Regulatory Impact Statement available here: http://www.counsel.nysed.gov/rulesandregs
7. DUPLICATION:
The rule does not duplicate existing State or federal regulations.
8. ALTERNATIVES:
After an extensive, 18-month long public engagement process, the Department, with Board approval, submitted New York State’s ESSA plan to the USDE for review on September 17, 2018 which was approved on January 17, 2018. The proposed rule is necessary conform Commissioner's Regulations to New York's approved ESSA plan.
9. FEDERAL STANDARDS:
The rule is necessary to conform regulations to New York's approved ESSA plan and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. § 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
10. COMPLIANCE SCHEDULE:
It is anticipated that parties will be able to timely implement the rule’s requirements beginning with its effective date.
Revised Regulatory Flexibility Analysis
Small Businesses:
The proposed rule relates to public school and school district accountability and is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401.
The purpose of the proposed rule is to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan, and provide school districts with the opportunity to demonstrate improvements by creating improvement plans that address the needs and resource issues found in identified schools. The State and local educational agencies (LEAs) are required to comply with the ESSA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended by the Every Student Succeeds Act of 2015.
The rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESSA, 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.
Local Governments:
1. EFFECT OF RULE:
The rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act of 1965, as amended.
2. COMPLIANCE REQUIREMENTS:
See the response to Question #3, Needs and Benefits in the full Regulatory Impact Statement available here: http://www.counsel.nysed.gov/rulesandregs
3. PROFESSIONAL SERVICES:
The rule imposes no additional professional service requirements.
4. COMPLIANCE COSTS:
For further information related to the costs of implementation please see the response to Question #4, Costs in the full Regulatory Impact Statement available here: http://www.counsel.nysed.gov/rulesandregs
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the Compliance Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802). Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The rule adds a new section 100.21 and revises sections 100.2(m), 100.2(ff), 100.18, 100.19 and Part 120 of the Commissioner's Regulations to align New York’s public school and school district accountability system to the approved ESSA plan and to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan. The rule has been carefully drafted to meet specific federal and State requirements.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed rule 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 were also provided for review and comment to the chief school officers of the five big city school districts and to charter schools.
Revised Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
The proposed rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act (ESEA) of 1965, as amended by the Every Student Succeeds Act (ESSA), 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 rule is necessary to necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802). For a more complete explanation please see the Regulatory Impact Statement posted here: http://www.counsel.nysed.gov/rulesandregs
3. COSTS:
Cost to the State: The proposed rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
Costs to local government: The rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802), but rather requires, in some instances, that school districts spend a portion of their Title I, Title IIA, and Title III funds on specific programs and activities, except that a school identified for Comprehensive Support and Improvement may in some cases need to spend an amount that is anticipated to be less than $10,000 per year in state and/or local funds to meet the participatory budgeting requirements of the regulations. The rule also provides school districts with substantial additional flexibility in how they use program funds compared to current regulations pertaining to schools identified as Priority or Focus.
Based upon the requirements described in the rule to implement certain activities based upon a school or district’s accountability status, there may be some associated costs. These activities, include, but are not necessarily limited to, annual notifications of accountability status; participation in comprehensive needs assessments; conduct of parent, staff and student surveys; and development and implementation of improvement plans. For school districts with schools receiving Title I, IIA or III funding, these funds may be used to pay the associated costs. School districts with Title I funded schools that are designated as Comprehensive Support and Improvement (CSI) schools or Targeted Support and Improvement (TSI) schools, will also be required to use their Title I, IIA, III funding to implement programs and services in CSI and TSI schools that address the needs and resource limitations found as a result of the needs assessments conducted at the schools. CSI schools that fail to show progress on their Annual Achievement Progression targets for two consecutive years will be required to enter into a partnership with a BOCES, Regional Bilingual Education Resource Network, Teacher Center or other Regional Technical Assistance Center, or other technical assistance provider as determined by the Commissioner to support the implementation of the Comprehensive Education Plan. Depending on the nature of such partnership, and whether such partnership already exists, a school district may incur costs to implement this provision of the regulations.
In some instances, school districts newly identified as Target Districts with schools that are designated as CSI or TSI that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources. However, it is anticipated that non-Title I schools will be eligible to receive federal 1003 School Improvement Grants that can be used to fund these activities.
Districts that have schools that fail to meet the 95% participation rate requirements must develop a participation rate improvement plan, which in some cases beginning in the 2021-22 school year shall include partnering with a BOCES or other technical assistance provider to conduct a participation rate audit and to update the participation rate improvement plan. Because these partnerships will likely vary significantly in cost based on the number of schools for which a plan is required no estimate can be made at this time regarding required costs. Similarly districts that have schools that will be closed or phased out as a consequence of these regulations may incur costs in developing and implementing a closure or phase out plan.
In other instances, school districts and their schools will be designated as in Good Standing, when under the present accountability system these school districts and schools might otherwise have been designated as Priority, Focus or Local Assistance Plan schools. In these cases, school districts may incur cost savings as they will no longer be required to participate in site visits or in the other previously required interventions for districts with such designations. In addition, a number of previous requirements for schools identified as Priority or Focus have been reduced or eliminated, thereby providing districts with increased flexibility in use of funds. For example, the current requirement for Title I Schools that are designated as Priority and Focus Schools to offer public school choice has been replaced by a substantially more limited public school choice program for a subset of Comprehensive Support and Improvement Schools. Because of the number of school districts and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from district-to-district, as well as school-to-school, depending on the school and district designation, the district’s choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.
Cost to private regulated parties: None.
Cost to regulating agency for implementation and continued administration of this rule: None.
4. MINIMIZING ADVERSE IMPACT:
The rule is necessary to conform the Commissioner's Regulations to New York State's approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
The rule adds a new section 100.21 and revises sections 100.2(m), 100.2(ff), 100.18, 100.19 and Part 120 of the Commissioner's Regulations to align New York’s public school and school district accountability system to the approved ESSA plan and to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan. The rule has been carefully drafted to meet specific federal and State requirements. Since these requirements apply to all local educational agencies in the State that receive ESSA funds, it is not possible to adopt different standards for school districts in rural areas.
5. RURAL AREA PARTICIPATION:
The rule was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.
Revised Job Impact Statement
The proposed rule making relates to public school and school district accountability and is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
The purpose of the proposed rule is to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan, and provide school districts with the opportunity to demonstrate improvements by creating improvement plans that address the needs and resource issues found in identified schools. The State and local educational agencies (LEAs) are required to comply with the ESSA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended by the Every Student Succeeds Act of 2015.
The proposed rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESSA, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed rule that it will have no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Assessment of Public Comment
Following publication of the Notice of Proposed Rule Making in the State Register on May 9, 2018 through June 4, 2018, the Department received the following comments on the proposed amendment:
1. COMMENT: A student should be credited as achieving Level 2 on the high school Composite Performance Level based on whether the student has met the graduation assessment in the subject as opposed to scoring at least 65 on the examination. This would ensure equal weighting for students with disabilities who are eligible for the safety net provision.
DEPARTMENT RESPONSE: No change necessary. ESSA requires that a uniform standard be applied to all students in computing Academic Achievement. It would be inconsistent with ESSA to define achievement levels differently for different groups of students.
2. COMMENT: The levels assigned to the ELP success ratio should be revised. The threshold would be a more reliable measure if the Success Ratio for Level 2 were 0.50 to 0.85 (or 0.90) and Level 3 were 0.86 to 1.24.
DEPARTMENT RESPONSE: No change necessary. The ELP success ratio has been designed so that schools that have below average performance receive Level 2.
3. COMMENT: The commenter indicates that the proposed regulation allows a single student to be counted multiple times to determine if there are 30 or more students. The commenter recommends that there be a minimum of 80% of the students being counted only once for each of the 3 subject areas. This will prevent the situation where the results from a very small number of students over two years could result in a school meeting the minimum n-size of 30 for an accountability group.
DEPARTMENT RESPONSE: The computation of minimum n-size in the draft regulations is consistent with the requirements of ESSA and New York’s approved ESSA plan. While it is true that a student may be calculated twice over a two-year period, the calculation used for minimum n-size was developed to strike a balance between ensuring reliability of the measure and maximizing the number of students for whom a school is held accountable. The Department does not believe a change is necessary.
4. COMMENT: Those who are at the 40th or 45th percentile should be assigned a Level 3 in the conversion chart so that 55 to 60% of the schools will be at Level 3 or 4 on measures such as Composite Performance or student growth.
DEPARTMENT RESPONSE: These measures have been designed so that schools that have below average performance receive Level 2. The Department does not believe that a school that performing at the 40th or 45th percentile should be assigned Level 3 because these percentiles mean that on average students in the accountability group have shown less growth than their peers. Therefore, no change is necessary.
5. COMMENT: It seems unfair to expect a newly arrived ELL to graduate within a four-year window. Perhaps there could be some leeway to examine the graduation of newly arrived ELLs within a different cohort for graduation and accountability purposes.
DEPARTMENT RESPONSE: Schools have flexibility to determine the appropriate grade to which to assign a newly arrived ELL. Once a student has been assigned to a high school cohort, ESSA does not allow for different rules to be applied to how the graduation rate is computed for English language learners. However, New York uses a four-, five-, and six-year graduation rate for accountability purposes in recognition of the fact that some students will need more than four years to graduate from high school. The Department does not believe any change is warranted.
6. COMMENT: The College Career and Civic Readiness Index is based on the four-year graduation rate cohort. Although Skills and Achievement Commencement Credentials are included in the 2.0 weighting and 1.5 weightings, these students typically do not graduate in 4 years. They are most likely to attend school until they are 21. The commenter recommends that students with disabilities on track for a Skills and Achievement Credential should not be held to the four-year graduation criteria.
DEPARTMENT RESPONSE: Ungraded students with disabilities are included in the Accountability Cohort and the Four-Year, Five-Year, and Six-Year Graduation Rate Cohorts in the school year in which they attain the age of 17. The Department does not believe a change is warranted.
7. COMMENT: Several commenters expressed concern with the process by which the draft regulations were presented to the Board of Regents and believes that the Board should have seen and had the opportunity to review and discuss the full text of the proposed regulations prior to their publication as a proposed rulemaking in the State Register.
DEPARTMENT RESPONSE: At its April 2018 meeting, the Board of Regents was presented with a detailed summary of the proposed amendment and the Board of Regents voted to authorize Department staff to publish the proposed amendment in the State Register for the 60-day public comment period so that the Department had an opportunity to receive as much public comment as possible before adoption as an emergency rule for the 2018-2019 school year, as required under ESSA. On April 24, the Board of Regents was provided with the materials filed with the Department of State for publication in the State Register, and as soon as the full text was finalized and posted on the Department’s website on May 9, the text was made available to the Board of Regents. The Board of Regents will be presented with the full text for emergency adoption at the June 2018 meeting.
8. COMMENT: Several commenters expressed the position that the proposed ESSA regulations make a direct frontal assault on the rights of parents to opt-out their children from the state testing system. This is contrary to the intent of ESSA and good public policy. Further, a number of these provisions were never discussed in public and were not detailed in the summary provided to the Board of Regents at the April Regents meeting.
DEPARTMENT RESPONSE: ESSA requires that LEAs provide parents upon their request with information on any state or local policy or procedures and parental rights regarding student participation in mandated assessments, where applicable. ESSA also makes clear that it does not preempt any state or local law with regard to a parental decision regarding participation in State assessments. The proposed regulations, therefore, contain no provisions relating to the right of parents to opt their children out of the State assessment system.
ESSA requires that State assessments annually measure the achievement of not less than 95% of all students, and 95% of all students in each subgroup of students. Therefore, the proposed regulations, consistent with the requirements of ESSA and New York’s approved plan, specify how academic achievement is computed and what the consequences are for schools when, for at least two consecutive years, fewer than 95% of students in an accountability subgroup do not participate in the grades 3-8 English language arts or mathematics assessment.
9. COMMENT: In the plan that New York submitted to the United States Department of Education, Academic Achievement in elementary/middle ELA and math was to be computed using the higher of two ways of ranking performance: one using as the denominator the greater of the number of continuously enrolled students tested or 95% of the number of continuously enrolled students and the other using as the denominator the number of continuously enrolled students tested. However, in the proposed regulations, these two performance scores are added together to calculate the “Composite Performance Index.” This has the effect of lowering the “score” in schools with higher opt-out rates for the Composite Performance Index that is then used to identify schools for CSI and TSI status. The higher score will only be used as a “tie-breaker” when two schools have the identical Composite Performance Index score.
DEPARTMENT RESPONSE: This revision (to add the two performance scores together) was made to the State’s ESSA plan based on discussions with the United States Department of Education that ultimately led to approval of New York’s plan in January 2018. The proposed regulatory provisions conform to the State’s approved ESSA plan.
10. COMMENT: The proposed regulations establish an Academic Progress Index for each school. This Index is based on performance levels on the ELA and Math assessments using continuously enrolled students as the student count. This is a measure used to identify CSI and TSI schools. Several commenters expressed that this measure penalizes schools with opt-outs since it assumes all students are taking the state assessments.
DEPARTMENT RESPPONSE: As indicated in the April summary of the proposed regulations, the Academic Progress Index is computed based upon the State long-term goals and Measures of Interim Progress (MIPs) in the schools. ESSA requires that goals and MIPs be computed using as the denominator for the computations the greater of the number of continuously enrolled students tested or 95% of the number of continuously enrolled students. These long-term goals and MIPs are computed using the above denominator as the baseline, thus taking into account that not all students participate in State assessments.
11. COMMENT: The proposed regulations provide that a school cannot exit CSI or TSI status if the school has a participation rate below 95 percent, regardless of all other indicators. This will block schools from exiting CSI or TSI status which otherwise have met performance targets set by SED.
DEPARTMENT RESPONSE: The proposed regulations provide that a school that is required to implement a participation rate improvement plan may not exit CSI or and man not exit TSI status if it is required to implement a participation rate improvement plan for an accountability group for which it has been identified as CSI. This provision is a modification of the existing more rigorous provisions pertaining to Priority and Focus Schools, which require that, in order to exit Priority or Focus status, the school must meet the 95% participation rate requirement for all groups for which the school is accountable for two consecutive years.
12. COMMENT: Several commenters expressed concern with the provision that permits the Commissioner to place under preliminary registration review (SURR) any school with “excessive percentages of students that fail to fully participate in the state assessment program.” This authority does not exist in the current SURR regs. If these regulations are enacted the Commissioner would have the unilateral authority to close schools that have high opt-out rates but are otherwise high performing.
DEPARTMENT RESPONSE: These are not new requirements. Section 100.18(k)(3) of the Commissioner’s regulations currently authorizes the Commissioner to place under registration review any school in “which excessive percentages of students fail to fully participate in the State assessment program,” and a similar provision has existed in § 100.2(p) for over a decade.
13. COMMENT: Several commenters expresses concerns with the provisions that permit the Commissioner to impose a financial penalty by requiring districts to set aside Title I funds if the participation rate on state tests do not improve by the third year. This provision was not included in the summary provided to the Regents at the April Regents meeting.
DEPARTMENT RESPONSE: This provision, which permits but does not mandate that the Commissioner require a set aside to increase student participation, is consistent with New York’s approved ESSA plan and was referenced in the April Regents summary as follows:
“In the third year of identification, for any school for which a district audit and district participation improvement plan was completed in the previous school year and that fails to improve its participation rates for the subgroup(s) and subject(s) for which the plan was required, the district must work with a Board of Cooperative Educational Services (BOCES) to conduct a participation rate audit and develop an updated participation rate plan.”
“In the fourth year of identification, for any school for which a BOCES audit and BOCES participation improvement plan was completed in the previous school year and that fails to improve its participation rates for the subgroup(s) and subject(s) for which the plan was required, the Department will conduct an audit of the participation rate and the school may be required by the Commissioner to undertake additional activities to raise student participation in State assessments.”
14. COMMENT: The proposed regulations require any new collective bargaining agreement to limit teachers transferring into a CSI school to those rated effective/highly effective. Many collective bargaining agreements contain provisions that govern the transfer of teachers. Several commenters expressed concern and believe that this provision of the draft regulations would impair these existing and long standing collective bargaining agreements by requiring that any future agreement preclude certain teacher transfers.
DEPARTMENT RESPONSE: The proposed regulation provides that any such requirement would not affect current CBAs and would only be applicable to the extent permitted by law. Therefore, this provision would not impair existing collective bargaining agreements. No change is warranted.
15. COMMENT: Districts that create a new school to replace a closed and restructured SURR/CSI school must select staff that consists “primarily” of experienced teachers (at least three years) who have been rated Effective/Highly Effective in each of the past three years and are not currently assigned to the school. Several commenters expressed concern and believe that this is in an inappropriate intrusion into collective bargaining.
DEPARTMENT RESPONSE: This provision is consistent with current requirements in Commissioner’s regulations § 100.18 for implementation of a whole school reform model, which currently requires that districts review “the quality of all staff and retain only those who have the ability to be successful in the turnaround effort.” Nevertheless, in an effort to address the commenter’s concerns, the Department recommends revising the proposed amendment to make it clear that this provision shall not abrogate any existing collective bargaining agreement and that any new successor agreement shall authorize such appointments.
16. COMMENT: The committee that is established to develop the corrective action plan in schools with high opt-out rates must include teaching and support staff. However, beginning with the third year of a corrective action plan, only half the staff members can be selected by the bargaining unit. All staff should be selected by the respective bargaining units. Several commenters expressed concern and believe that it is inappropriate for the administration to select employees to serve on such committees.
DEPARTMENT RESPONSE: This provision is applicable only after a school has failed to improve its participation rate following two years of implementing a participation rate improvement plan. The intent is to allow districts to select teachers to participate in development of the next plan who may have new ideas for increasing participation rates. Therefore, the Department does not believe any change is warranted.
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