Addressing the COVID-19 Crisis
NY-ADR
6/23/21 N.Y. St. Reg. EDU-20-20-00008-ERP
NEW YORK STATE REGISTER
VOLUME XLIII, ISSUE 25
June 23, 2021
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-20-20-00008-ERP
Filing No. 691
Filing Date. Jun. 08, 2021
Effective Date. Jun. 08, 2021
Addressing the COVID-19 Crisis
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Addition of section 80-5.27; amendment of sections 52.21, 60.6, 61.9, 80-1.2, 80-3.7, 100.1, 100.2, 100.4, 100.5, 100.6, 100.7, 100.19 and 151-1.3 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101, 207, 209, 210, 211-f, 214, 215, 305, 1111(b)(3), (c)(4), (d)(2), 3001, 3004, 3009, 3204, 3205, 3602, 3602-3, 3602-ee, 6525, 6611; 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 public health and general welfare.
Specific reasons underlying the finding of necessity:
On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern. On March 7, 2020, the Governor of New York State declared a State disaster emergency for the entire State of New York pursuant to Executive Order 202. Subsequently, the Governor issued additional Executive Orders in response to the COVID-19 crisis, including orders directing the closure of schools and directing nonessential work personnel to work from home. In response, the Department adopted emergency regulations to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. The Department first presented these proposed amendments to the Full Board for adoption as an emergency action at the May 2020 Regents meeting, effective May 5, 2020. At the June, July, September, October, and December 2020, and February, March, and May 2021 Board meetings, the Department revised the proposed amendments to provide clarification and additional regulatory flexibility. The Department is now proposing additional revisions to the proposed amendment to provide an exemption to the diploma, credential, and endorsement requirements related to the passing of the January 2022 Regents examination in United States history and government. Additionally, the Department proposes to revise the amendments made to section 100.5(b)(7)(iv)(d) of the Commissioner’s regulations to clarify that the flexibility for qualifying to take a Regents examination where a student is unable to meet the 1,200 minutes of laboratory experience due to the COVID-19 crisis or to be exempted from a Regents examination pursuant to section 100.5(a)(5)(vi) applies to the 2019-2020 and 2020-2021 school years and 2020 and 2021 summer sessions.
The proposed amendments provide flexibility related to the following:
• Renewal of limited permits in medicine;
• In-person CPR course certification requirements for dentists and dental hygienists;
• The takeover and restructuring of struggling and persistently struggling schools;
• Teacher certification through the Individual Evaluation pathway;
• Expiration dates of the Initial certificate, Initial Reissuance, Provisional certificate, Provisional Renewal, and Conditional Initial certificate for teacher candidates;
• Emergency COVID-19 teaching certificates;
• School district leader and school district business leader assessments;
• Annual monitoring and tracking of prekindergarten program effectiveness and the annual report of the percentage of prekindergarten children making significant gains;
• Application deadline for alternative high school equivalency preparation programs;
• Unit of study requirements;
• Regents examinations, pathway assessments, alternative assessments, technical assessments, work-readiness assessments, and locally developed test requirements for a diploma;
• NYS career and development and occupational studies commencement credential; and
• General comprehensive examination requirements for a high school equivalency diploma.
Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendments could be presented for regular (nonemergency) adoption, after publication in the State Register and expiration of the 45-day public comment period required in the State Administrative Procedure Act (SAPA) section 201(4-a), is the September 2021 Regents meeting. However, because the COVID-19 crisis is presently affecting the State of New York, emergency action is necessary for the preservation of public health and the general welfare in order to immediately provide flexibility for certain regulatory requirements in response to the COVID-19 crisis, and to ensure that the emergency action taken at the May meeting remains continuously in effect.
It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the September 2021 Regents meeting, which is the first scheduled meeting after the 45-day public comment period prescribed in SAPA for State agency rule making. Because the emergency rule will expire before the September Regents meeting, it is anticipated that an additional emergency action will be presented for adoption at the July 2021 Regents meeting.
Subject:
Addressing the COVID-19 Crisis.
Purpose:
To provide flexibility for certain regulatory requirements in response to the COVID-19 crisis.
Substance of emergency/revised rule (Full text is posted at the following State website: http://www.counsel.nysed.gov/rules/full-text-indices):
On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern. On March 7, 2020, the Governor of New York State declared a State disaster emergency for the entire State of New York pursuant to Executive Order 202. Subsequently, the Governor issued additional Executive Orders in response to the COVID-19 crisis, including orders directing the closure of schools and directing nonessential work personnel to work from home. In response, the Department has adopted emergency regulations to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, the Department is proposing further emergency regulatory amendments as follows:
• Professions
o Section 60.6 is amended to permit the Department, at its discretion, to renew limited permits in medicine for one additional 24-month period.
o Section 61.19(b) is amended to permit the Department to accept alternative means to be used by dentists and dental hygienists to obtain and/or maintain the required certification in cardiopulmonary resuscitation other than through an in-person course during the COVID-19 crisis.
• Receivership
o Section 100.19 is amended to provide that: (1) the Commissioner shall not use 2019-20 school year results to newly identify any schools as struggling, place any schools under independent receivership, or remove the designation of any schools as struggling or persistently struggling; (2) all schools identified as persistently struggling or struggling schools for the 2019-20 school year shall remain so identified for the 2020-21 school year and all schools that operated under a school district superintendent receiver in the 2019-20 school year shall continue to operate under a school district superintendent receiver in the 2020-21 school year; and (3) the Commissioner may, upon a finding of good cause, modify for the 2019-20 through 2021-22 school years any timelines pertaining to notifications, plans, reports, or implementation of activities required by such section, except for any timelines prescribed by law.
• Higher Education
o Section 80-3.7 is amended to allow any undergraduate or graduate level course completed during the spring, summer, or fall 2020 terms with a passing grade, or its equivalent, to count toward the content core or pedagogical core semester hour requirements for certification through the Individual Evaluation pathway. The passing grade, or its equivalent, must be in accordance with the pass/fail grading policy, or its equivalent, at the institution of higher education (e.g., credit/no credit, pass/fail, satisfactory/ unsatisfactory policy).
o Section 80-1.2(b) is amended to extend the expiration date of the Initial certificate, Initial Reissuance, Provisional certificate, Provisional Renewal, and the extensions of the initial and Provisional certificates from August 31, 2020 to January 31, 2021 to provide candidates with the time needed to work in schools and complete the requirements for the Professional or Permanent certificate. Additionally, such section is amended to extend the expiration date of the Conditional Initial certificate from August 31, 2020 to August 31, 2021 to provide candidates with the time needed to complete the edTPA, which requires working with students. An additional year gives candidates the time to establish a relationship with students, teach lessons and assess student learning, and prepare the edTPA submission once classroom routines are more consistent after the COVID-19 crisis.
o Section 80-5.27 is added to create an Emergency COVID-19 certificate for candidates seeking certain certificates, extensions, and annotations because there is limited test center availability and schools have been closed pursuant to Executive Order(s) of the Governor due to the COVID-19 crisis. This certificate would be valid for two years. Candidates must apply for the certificate, extension, or annotation on or before September 1, 2021. They must also apply for the Emergency COVID-19 certificate, in the same certificate title as the certificate, extension, or annotation applied for, on or before September 1, 2021.
o Section 52.21(c) is amended to exempt school district leader (SDL) and school business leader (SDBL) candidates from taking and passing the SDL and SDBL assessment, respectively, for program completion and for the institutional recommendation for the Professional certificate, if they completed all program requirements except the assessment requirement in the 2019-2020 or 2020-20201 academic year. The exemption enables these candidates to complete their program while there is limited test center availability due to the COVID-19 crisis and receive institutional recommendation for Professional certification, which would be needed to pursue the proposed Emergency COVID-19 certificate. The candidates would need to take and pass the SDL and SDBL assessment to earn Professional SDL and SDBL certification, respectively.
o Section 52.21(c) is also amended to exempt candidates admitted to Transitional D programs leading to school district leader certification from taking and passing the SDL assessment for the institutional recommendation for the Transitional D certificate, if they completed all requirements for admitted candidates except the assessment requirement on or before September 1, 2021. The exemption enables Transitional D candidates to receive institutional recommendation for Transitional D certification while there is limited test center availability due to the COVID-19 crisis, which would be needed to pursue the proposed Emergency COVID-19 certificate. The candidates would need to take and pass the SDL assessment to earn Transitional D certification.
• Early Learning
o Section 151-1.3(b) is amended to waive the requirement that school districts must annually monitor and track prekindergarten program effectiveness for the 2019-2020 school year and to waive the annual report of the percentage of prekindergarten children making significant gains for the 2019-2020 school year.
• Alternative High School Equivalency Program (“AHSEP”)
o Section 100.7 is amended to provide an extension to the June 30 application deadline for alternative high school equivalency preparation programs to be operated during the 2020-2021 school year.
• Curriculum and Instruction
o Section 100.1 is amended to provide that a unit of credit may be earned where a student has not completed a unit of study due to the COVID-19 crisis but has otherwise achieved the standards assessed in the provided coursework;
o Sections 100.2 and 100.5 are amended to provide an exemption to the diploma, credential, and endorsement requirements associated with the Regents examination, pathway assessment, alternative assessment, technical assessment, and locally developed test during the 2019-20 and 2020-21 school years due to the COVID-19 crisis so that students are still able to meet their diploma requirements;
o Section 100.5(a)(5)(vi)(a) is amended to provide an exemption to the diploma, credential, and endorsement requirements related to the passing of the January 2022 Regents examination in United States History and Government so that students are still able to meet their diploma requirements since the January 2022 Regents examination in United States History and Government will not be available;
o Section 100.4 is amended to make a technical citation correction;
o Section 100.5 is amended to provide that for the 2019-2020 and 2020-2021 school years the 1,200 minutes of laboratory experience is not required for a student to qualify to take a Regents examination where such student is unable to meet the 1,200 minute requirement due to the COVID -19 crisis, and to provide that 1,200 minutes of lab experience is not required for a student to be exempted from a Regents examination;
o Section 100.6 is amended to exempt students from the requirements for the career development and occupational studies commencement credential (“CDOS”), including the work readiness assessment, provided that the student is otherwise eligible to exit from high school and has otherwise demonstrated knowledge and skills relating to the CDOS learning standards; and
o Section 100.7 is amended to provide an exemption from the sub-tests of the general comprehensive examination requirements for a high school equivalency diploma where students meet certain criteria for the 2019-20 and 2020-21 school years.
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 20, 2020, I.D. No. EDU-20-20-00008-EP. The emergency rule will expire August 6, 2021.
Revised rule making(s) were previously published in the State Register on
March 31, 2021.
Emergency rule compared with proposed rule:
Substantial revisions were made in section 100.5(a)(5) and (b)(7).
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 112EB, Albany, NY 12234, (518) 474-6400, email: [email protected]
Data, views or arguments may be submitted to:
Julia Patane, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 148EB, Albany, NY 12234, (518) 474-6400, email: [email protected]
Public comment will be received until:
45 days after publication of this notice.
Revised Regulatory Impact Statement
Since the publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on May 26, 2021, substantial revisions were made to section 100.5(a)(5)(vi)(a) of the Commissioner’s regulations to provide an exemption to the diploma, credential, and endorsement requirements related to the passing of the January 2022 Regents examination in United States History and Government since the January 2022 Regents examination in United States History and Government will not be available. Additionally, the proposed rule is revised to clarify that the flexibility provided for science laboratory experience to qualify to take a Regents examination and/or be exempted from a Regents examination applies to the 2019-2020 and 2020-2021 school years, including the 2020 and 2021 summer sessions.
These substantial revisions do not require any changes to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
Since the publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on March 31, 2021, substantial revisions were made to section 100.5(a)(5)(vi)(a) of the Commissioner’s regulations to provide an exemption to the diploma, credential, and endorsement requirements related to the passing of the January 2022 Regents examination in United States History and Government since the January 2022 Regents examination in United States History and Government will not be available. Additionally, the proposed rule is revised to clarify that the flexibility provided for science laboratory experience to qualify to take a Regents examination and/or be exempted from a Regents examination applies to the 2019-2020 and 2020-2021 school years, including the 2020 and 2021 summer sessions.
These substantial revisions do not require any changes to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Government.
Revised Rural Area Flexibility Analysis
The purpose of the proposed amendments to the Regulations of the Commissioner of Education is to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis. On January 30, 2020, the World Health Organization designated the novel coronavirus, COVID-19, outbreak as a Public Health Emergency of International Concern. On March 7, 2020, the Governor of New York State declared a State disaster emergency for the entire State of New York pursuant to Executive Order 202. Subsequently, the Governor issued additional Executive Orders in response to the COVID-19 crisis, including orders directing the closure of schools and directing nonessential work personnel to work from home. In response, the Department has adopted emergency regulations to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, the Department is proposing further emergency regulatory amendments providing flexibility related to the following:
• Renewal of limited permits in medicine;
• In-person CPR course certification requirements for dentists and dental hygienists;
• The takeover and restructuring of struggling and persistently struggling schools;
• Teacher certification through the Individual Evaluation pathway;
• Expiration dates of the Initial certificate, Initial Reissuance, Provisional certificate, Provisional Renewal, and Conditional Initial certificate for teacher candidates;
• Emergency COVID-19 teaching certificates;
• School district leader and school district business leader assessments;
• Annual monitoring and tracking of prekindergarten program effectiveness and the annual report of the percentage of prekindergarten children making significant gains;
• Application deadline for alternative high school equivalency preparation programs;
• Unit of study requirements;
• Regents examinations, pathway assessments, alternative assessments, technical assessments, and locally developed test requirements for a diploma;
• NYS career and development and occupational studies commencement credential; and
• General comprehensive examination requirements for a high school equivalency diploma.
The proposed amendment provides flexibility for certain regulatory requirements during the COVID-19 crisis. Thus, the proposed amendment does not adversely impact entities in rural areas of New York State. Accordingly, no further steps were needed to ascertain the impact of the proposed amendment on entities in rural areas and none were taken. Thus, a rural flexibility analysis is not required and one has not been prepared.
Revised Job Impact Statement
The purpose of the proposed amendments is to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis. The proposed amendment provides flexibility related to the following:
• Renewal of limited permits in medicine;
• In-person CPR course certification requirements for dentists and dental hygienists;
• The takeover and restructuring of struggling and persistently struggling schools;
• Teacher certification through the Individual Evaluation pathway;
• Expiration dates of the Initial certificate, Initial Reissuance, Provisional certificate, Provisional Renewal, and Conditional Initial certificate for teacher candidates;
• Emergency COVID-19 teaching certificates;
• School district leader and school business leader assessments;
• Annual monitoring and tracking of prekindergarten program effectiveness and the annual report of the percentage of prekindergarten children making significant gains;
• Application deadline for alternative high school equivalency preparation programs;
• Unit of study requirements;
• Regents examinations, pathway assessments, alternative assessments, technical assessments, and locally developed test requirements for a diploma;
• NYS career and development and occupational studies commencement credential; and
• General comprehensive examination requirements for a high school equivalency diploma.
Because it is evident from the nature of the proposed amendment that it 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.
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