In March 2022, the Department determined that Regents examinations could be administered safely and equitably across the State in June and August 2022. The Department believes it is important for schools and districts to offer these exams as one of multiple measures of student achievement in the 2021-2022 school year. Assessing our students at the state level provides a valuable opportunity to determine the extent to which individual students are achieving the New York State learning standards and informs steps the Department can take to foster equity to improve the educational opportunities for every student in New York.

While the Department supports the administration of the Regents examinations, students continue to be impacted by the COVID-19 pandemic during the 2021-2022 school year. To reduce the potential impact of the Regents Examinations on a student’s ability to earn a diploma, the Department now proposes amendments to section 100.5(d)(7) of the Commissioner’s regulations to provide a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years provided certain criteria are met.

The proposed amendment to section 100.5(d)(7) of the Commissioner's regulations provides that students who have passed a course of study leading to a Regents examination and who have scored a 50-64 during the June 2022, August 2022, January, June or August 2023 examination administration periods may file a special appeal to apply such scores as passing scores toward a diploma. In order to be eligible to appeal, a student must have: (1) taken the Regents examination during the June 2022, August 2022, January 2023, June 2023, or August 2023 test administration periods; (2) earned a score of 50-64 on the Regents examination that is the subject of the appeal; and (3) attained a course average in the corresponding course of such Regents examination that meets or exceeds the required passing grade by the school and is recorded on the student’s official transcript with grades achieved by the student in each quarter of the school year.

A student does not have to take advantage of academic assistance provided by the school in the subject tested by the Regents examination, or take the examination a second time, to be eligible. Superintendents may consider the recommendations of a local school standing committee, a recommendation from the student’s teacher, or any other evidence presented or collected related to the student’s attainment of the learning standards for the course that corresponds to the Regents examination. Appeals granted could be applied toward a Local, Regents, or Regents with Advanced designation diploma earned in any subsequent year. An unemancipated student’s parent or person in parental relation may refuse an appeal granted to their child if the parent wishes the student to remain in school and receive additional instruction. Such appeal may be considered again at any time before the student graduates. The outcome of an such appeal may then be appealed to the Commissioner of Education pursuant to Education Law § 310.

Additionally, the proposal amends the current requirements for appeals under section 100.5(d)(7) to remove the requirement that a student must be recommended for an exemption to the passing score on the required Regents examination by his or her teacher or department chairperson in the subject area of the examination.

The proposed amendment was presented to the P-12 Education Committee for recommendation to the Full Board for adoption as an emergency rule at the May 2022 meeting of the Board of Regents, effective May 17 2022. Since the Board of Regents meets at fixed intervals, the earliest the proposed amendment could be adopted by regular (non-emergency) action after expiration of the 60-day public comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5) would be the September 2022 Regents meeting. Furthermore, pursuant to SAPA 203(1), the earliest effective date of the proposed rule, if adopted at the September meeting, would be September 28, 2022, the date the Notice of Adoption would be published in the State Register.

However, the emergency rule will expire on August 14, 2022. Therefore, a second emergency action is necessary at the July 2022 meeting for the preservation of the general welfare to immediately provide regulatory flexibility so that students can meet the diploma requirements related to the passing of Regents Examinations administered during the 2021-2022 and 2022-2023 school years, and to ensure the emergency action taken at the May 2022 meeting remains continuously in effect until the rule can be permanently adopted.

It is anticipated that the proposed rule will be presented to the Board of Regents for adoption as a permanent rule at the September 2022 meeting, which is the first scheduled meeting after expiration of the 60-day public comment period mandated by SAPA for state agency rulemaking.

(7) Appeals process on Regents examinations passing score to meet Regents diploma requirements.

(i) School districts shall provide unlimited opportunities for all students to retake required Regents examinations to improve their scores.

(a) A student who first enters grade nine in September 2005 or thereafter and who fails, after at least two attempts, to attain a score of 65 or above on a required Regents examination for graduation shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph, provided that no student may appeal his or her score on more than two of the five required Regents examinations and provided further that the student:

(1) has scored within five points of the 65 passing score on the required Regents examination under appeal and has attained at least a 65 course average in the subject area of the Regents examination under appeal;

(2) provides evidence that he or she has received academic intervention services by the school in the subject area of the Regents examination under appeal; and

(3) has attained a course average in the subject area of the Regents examination under appeal that meets or exceeds the required passing grade by the school and is recorded on the student's official transcript with grades achieved by the student in each quarter of the school year[; and

(4) is recommended for an exemption to the passing score on the required Regents examination under appeal by his or her teacher or department chairperson in the subject area of such examination].

(b) A student who first enters school in the United States (the 50 States and the District of Columbia) in grade 9, 10, 11 or 12 and is otherwise eligible to graduate in January 2015 or thereafter, is identified as an English language learner pursuant to Part 154 of this Title, and fails, after at least two attempts, to attain a score of 65 or above on the required Regents examination in English language arts for graduation, shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph, provided that no such student may appeal his or her score on more than two of the five required Regents examinations and provided further that the student:

(1) has scored between 55-59 on the required Regents examination in English language arts under appeal;

(2) provides evidence that he or she has received academic intervention services by the school in English language arts; and

(3) has attained a course average in English language arts that meets or exceeds the required passing grade by the school and is recorded on the student's official transcript with grades achieved by the student in each quarter of the school year[; and

(4) is recommended for an exemption to the passing score on the required Regents examination in English language arts by his or her teacher or department chairperson in English language arts].

(c) A student who is otherwise eligible to graduate in January 2016 or thereafter, is identified as a student with a disability as defined in section 200.1(zz) of this Title, and fails, after at least two attempts, to attain a score of 55 or above on up to two of the required Regents examinations for graduation shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph for purposes of graduation with a local diploma, provided that the student:

(1) has scored within three points of a score of 55 on the required Regents examination under appeal and has attained at least a 65 course average in the subject area of the Regents examination under appeal; and

(2) has met the criteria specified in subclauses [(a)(2)-(4)] (a)(2)-(3) of this subparagraph.

(d) In considering appeals pursuant to clause (a)-(c) of this subparagraph, superintendents may consider the recommendations of the standing committee, a recommendation from the student’s teacher or any other evidence presented or collected related to the student’s attainment of the learning standards for the corresponding course of such Regents Exam.

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(vi) Each school shall keep a record of all appeals received and granted and report this information to the State Education Department on a form prescribed by the commissioner. All school records relating to appeals of scores on required Regents examinations shall be made available for inspection by the State Education Department.

(vii) Special appeal to earn a diploma with a lower score on a Regents Examination taken in the 2021-2022 or 2022-2023 school year.

(a) Any student who meets the following eligibility conditions may appeal to earn a diploma with a lower score on a Regents Exam provided that the student has:

(1) taken the Regents examination during the June 2022, August 2022, January 2023, June 2023 or August 2023 test administration periods;

(2) earned a score of 50-64 on the Regents examination that is the subject of the appeal; and

(3) attained a course average in the corresponding course of such Regents examination that meets or exceeds the required passing grade by the school and is recorded on the student’s official transcript with grades achieved by the student in each quarter of the school year.

(b) A student need only take the Regents examination under appeal one time during the specific administrations listed above to be eligible to appeal pursuant to this subparagraph.

(c) A student does not need to take advantage of academic assistance provided by the school in the subject tested by the Regents examination under appeal to be eligible to appeal pursuant to this subparagraph.

(d) Such special appeals may be applied towards a local, Regents or Regents with Advanced Designation diploma.

(e) Special appeals granted pursuant to this subparagraph for lower scores earned during these specific administrations shall not count towards the maximum number of appeals that can be applied to a local, Regents, or Regents with Advanced Designation diploma.

(f) In considering such special appeals, superintendents may consider the recommendations of the standing committee, a recommendation from the student’s teacher or any other evidence presented or collected related to the student’s attainment of the learning standards for the corresponding course of such Regents examination.

(g) A student’s parent or person in parental relation may refuse an appeal granted to the student pursuant to this subparagraph if the parent wishes the student to remain in school and receive additional instruction. Such appeal may be considered again at any time before the student graduates.

1. STATUTORY AUTHORITY:

Section 101 of the Education Law continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Regents to appoint the Commissioner as chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.

Section 207 of the Education Law grants general rule making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Section 208 grants general rule-making authority to the Regents to confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.

Section 209 provides that the Regents shall establish, in secondary institutions, examinations in studies furnishing a suitable standard of graduation therefrom and of admission to colleges, and certificates or diplomas shall be conferred by the Regents to students who satisfactorily pass such examinations.

Section 305(1) and (2) of the Education Law provide the Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents.

Section 309 provides that the schools of every union free school district and of every city in all their departments are subject to the visitation of the commissioner and charges the commissioner with the general supervision of their board of education and their management and conduct of all departments of instruction.

Section 3204 of the Education Law provides that minors required to attend upon instruction pursuant to the Compulsory Education Law may attend at a public school or elsewhere and sets forth the requirements of such instruction.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to implement Regents’ policy to respond to the impact of the COVID-19 pandemic on students by providing a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met.

3. NEEDS AND BENEFITS:

The COVID-19 pandemic has resulted in the limited administration of Regents examinations since spring 2020. In response, the Department has adopted regulatory amendments exempting students from the diploma, credential, and endorsement requirements related to the passing of such examinations.

In March 2022, the Department determined that Regents examinations can be administered safely and equitably across the State in June and August 2022. The Department believes it is important for schools and districts to offer these exams as one of multiple measures of student achievement in the 2021-2022 school year. Assessing our students at the State level provides a valuable opportunity to determine the extent to which individual students are achieving the NYS learning standards and informs steps the Department can take to foster equity and improve educational opportunities for every student in New York.

While the Department supports the administration of the Regents examinations in June and August of 2022, it recognizes that the COVID-19 pandemic continued to have adverse impacts on students and schools during the 2021-2022 school year. Conditions for teaching and learning have varied significantly across the State depending upon how the pandemic has affected individual communities, schools, families, and students.

To reduce the impact of these varied conditions on students and facilitate decision making about the effects of the pandemic at the school district level, the Department now proposes amendments to section 100.5(d)(7) of the Commissioner’s regulations to provide a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met.

The proposed amendment to section 100.5(d)(7) of the Commissioner's regulations provides that students who have passed a course of study leading to a Regents examination and who have scored a 50-64 during the June 2022, August 2022, January 2023, June 2023, or August 2023 examination administration periods may file a special appeal to apply such scores as passing scores toward a diploma. In order to be eligible to appeal, a student must have: (1) taken the Regents examination during the June 2022, August 2022, January 2023, June 2023, or August 2023 test administration periods; (2) earned a score of 50-64 on the Regents examination that is the subject of the appeal; and (3) attained a course average in the corresponding course of such Regents examination that meets or exceeds the required passing grade by the school and is recorded on the student’s official transcript with grades achieved by the student in each quarter of the school year.

A student does not have to take advantage of academic assistance provided by the school in the subject tested by the Regents examination, or take the examination a second time, to be eligible. Superintendents may consider the recommendations of a local school standing committee, a recommendation from the student’s teacher, or any other evidence presented or collected related to the student’s attainment of the learning standards for the course that corresponds to the Regents examination. Appeals granted could be applied toward a Local, Regents, or Regents with an Advanced designation diploma earned in any subsequent year. A student’s parent or person in parental relation may refuse an appeal granted to their child if the parent wishes the student to remain in school and receive additional instruction. Such appeal may be considered again at any time before the student graduates. The outcome of an such appeal may then be appealed to the Commissioner of Education pursuant to Education Law § 310.

Additionally, the proposal amends the current requirements for appeals under section 100.5(d)(7) to remove the requirement that a student must be recommended for an exemption to the passing score on the required Regents examination by his or her teacher or department chairperson in the subject area of the examination.

4. COSTS:

(a) Costs to State government: There are no additional costs to State government.

(b) Costs to local government: The proposed amendment does not impose any additional costs on local governments.

(c) Cost to private regulated parties: The proposed amendment does not impose any additional costs on regulated parties.

(d) Cost to the regulatory agency: The proposed amendment will not impose any additional costs on the Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment requires school districts to provide students a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met.

6. PAPERWORK:

School districts are currently required to keep a record of all appeals received and granted and report this information to the State Education Department on a form prescribed by the commissioner. This provision applies to this temporary special appeal added by the proposed amendment as well.

7. DUPLICATION:

The proposed amendment does not duplicate any other existing State or Federal requirements.

8. ALTERNATIVES:

The proposed rule is necessary to implement Regents’ policy to respond to the impact of the COVID-19 pandemic on students by providing a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met. Therefore, no significant alternatives were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

The proposed amendment will take effect as an emergency rule on May 17, 2022. It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at the September 2022 Regents meeting, after publication of the proposed amendment in the State Register and expiration of the 60-day public comment period required under the State Administrative Procedure Act. If adopted at the September 2022 meeting, the proposed amendment will become effective as a permanent rule on September 28, 2022. It is anticipated that regulated parties will be able to comply with the proposed amendment by the effective date.

(a) Small businesses:

The proposed amendment is necessary to implement Regents’ policy to respond to the impact of the COVID-19 pandemic on students by providing a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

(b) Local governments:

1. EFFECT OF RULE:

The rule applies to each of the 673 public school districts in the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment requires school districts to provide students a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met.

3. PROFESSIONAL SERVICES:

The proposed rule does not impose any additional professional services requirements on local governments.

4. COMPLIANCE COSTS:

The proposed amendment does not impose and additional costs on local governments.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any technological requirements on local governments.

6. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Regents’ policy to respond to the impact of the COVID-19 pandemic on students by providing a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met. There were no significant alternatives considered.

7. LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, from the chief school officers of the five big city school districts.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment requires school districts to provide students a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met.

School districts are currently required to keep a record of all appeals received and granted and report this information to the State Education Department on a form prescribed by the commissioner. This provision applies to this temporary special appeal added by the proposed amendment as well.

3. COSTS:

The proposed amendment does not impose and additional costs on regulated parties, including those located in rural areas.

4. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Regents’ policy to respond to the impact of the COVID-19 pandemic on students by providing a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met. Because the purpose of the proposed amendment is to ensure that all students have access to such appeal, no alternatives were considered for school districts located in rural areas.

5. RURAL AREA PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, from the chief school officers of the five big city school districts, including those in rural areas.

The purpose of the proposed rule is to implement Regents’ policy to implement Regents’ policy to respond to the impact of the COVID-19 pandemic on students by providing a temporary expansion of the process to file an appeal and graduate with a lower score on a Regents examination taken in the 2021-2022 or 2022-2023 school years, provided certain criteria are met. Because it is evident from the nature of the proposed rule 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. Accordingly, a job impact statement is not required and one has not been prepared.

The agency received no public comment.