Currently, Commissioner’s regulations only address instruction provided to students cared for in hospitals or other institutions which provide for the care, custody, and treatment of children, other than a school setting, pursuant to Education Law § 3202(6) (8 NYCRR 175.21). This section of regulation pertains to average daily attendance and average daily membership for determination of state aid and establishes a minimum of 5 (elementary school level) or 10 (secondary level) hours of instruction per week.

For students with disabilities who are recommended for home, hospital, or institutional instruction by a committee on special education (CSE), section 200.6 of the Commissioner’s regulations requires the same minimum hours for elementary and secondary levels as prescribed in section 175.21 of the Commissioner’s regulations and reserves the determination of the instruction and related services to the CSE. There currently exists no instructional requirements for the general student population in need of such instruction, other than these stated minimums.

Throughout the 2021 -2022 school year, the State Education Department received numerous inquiries from parents and caregivers regarding the extent to which they could request or were entitled to receive, “homebound” instruction for students, including those who were immunocompromised. Schools also inquired as to how they should determine a student’s eligibility for such instruction.

The proposed rule will give districts and parents or guardians clarity on the requirements for the application and provision of such instruction. The proposed rule will also establish, beginning with the 2023-2024 school year, increased minimum instructional requirements for students who are unable to attend school in person for at least ten days out of the next three months due to illness or injury that requires the student to remain at home or in a hospital or other institution for the treatment of children, other than a school.

Thus, the Department proposes to add a new section 100.22 to the Commissioner’s regulations that:

• defines the terms tutor, school district of residence, and healthcare provider;

• requires medical verification from the student’s treating healthcare provider as well as a request for home, hospital, or institutional instruction from a parent or guardian;

• establishes a time frame for review of the request, including the ability to appeal a denial thereof to a board of education;

• identifies minimum requirements for instruction to continue a student’s academic progress, including the development of an instructional plan in consultation with the parent or guardian and, where appropriate, the student; and

• effective July 1, 2023, increases the minimum instruction hours to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician.

Additionally, the Department proposes to amend section 200.6 of the Commissioner’s regulations to provide that the amount of home, hospital and institutional instruction for students with disabilities conforms to the increased requirements of section 100.22.

The proposed amendment was presented to the P-12 Education Committee for discussion and recommended to the Full Board for adoption as an emergency rule at the May 2022 meeting, effective July 1, 2022. An additional emergency action was taken at the September 2022 Regents meeting to ensure the emergency action taken at the May 2022 meeting remained continuously in effect. In response to public comment, the Department revised the proposed amendment at the October 2022 Regents meeting. Since the Board of Regents meets at fixed intervals, the earliest the revised proposed amendment could be adopted by regular (non-emergency) action after expiration of the 45-day public comment period provided for in the State Administrative Procedure Act (SAPA) section 201(4-a) for revised rulemakings would be the January 2023 Regents meeting. Furthermore, pursuant to SAPA 203(1), the earlier effective date of the revised proposed rule, if adopted at the January meeting, would be January 25, 2023, the date the Notice of Adoption would be published in the State Register.

Therefore, a fourth emergency action is necessary at the November 2022 meeting, effective December 3, 2022, for the preservation of the general welfare to ensure that districts and parents or guardians receive clarity as to the circumstances under which “homebound” instruction may be requested and delivered for the upcoming school year and to ensure the emergency action taken at the October 2022 meeting, remains continuously in effect. It is anticipated that the revised proposed rule will be presented to the Board of Regents for adoption as a permanent rule at the January 2023 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by SAPA for revised proposed rulemakings.

2. Subdivision (i) of section 200.6 of the Regulations of the Commissioner of Education is amended to read as follows:

(i) Home and hospital instruction. Students with disabilities who are recommended for home and/or hospital instruction by the committee on special education shall be provided instruction and appropriate related services as determined and documented by the committee on special education in consideration of the student's unique needs. Home and hospital instruction shall only be recommended if such placement is in the least restrictive environment and must be provided for at least the number of days and length of time as provided in section 100.22(e)(2) of this Chapter.

[(1) a minimum of five hours per week at the elementary level, preferably one hour daily; or

(2) a minimum of 10 hours per week at the secondary level, preferably two hours daily.]

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 215 of the Education Law empowers the Regents and the Commissioner to visit, examine into and inspect, any institution in the University and any school or institution under the educational supervision of the State and may require reports therefrom giving information as the Regents or the Commissioner prescribe.

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 1604(20) of the Education Law requires the trustees of common school districts to provide transportation, home-teaching or special classes, as defined in Education Law §§ 4401 and 4402 of the Education Law for physically or mentally handicapped and delinquent children.

Section 1709(24) of the Education Law requires the board of education of union free school districts to provide transportation, home-teaching or special classes, as defined in Education Law §§ 4401 and 4402 of the Education Law for physically or mentally handicapped and delinquent children.

Section 2503(11) of the Education Law requires the board of education of small city school districts to provide transportation, home-teaching or special classes, as defined in Education Law §§ 4401 and 4402 of the Education Law for physically or mentally handicapped and delinquent children.

Section 2554(18) of the Education Law requires the board of education of large city school districts to provide transportation, home-teaching or special classes, as defined in Education Law §§ 4401 and 4402 of the Education Law for physically or mentally handicapped and delinquent children.

Section 3202(6) of the Education Law provides that children cared for in a hospital or other institution for the care, custody and treatment of children, other than a school and excepting children of the officers and employees of such hospital or institution, shall not, by reason of their presence in such hospital or institution be deemed to be residents of the school district in which such hospital or institution is located. The trustees or board of education of the school district of their residence shall provide educational services for such children. Such services may be provided by a tutor employed by the district, by contract with a school connected with such hospital or institution, or by contract with the local public school district in which such hospital or institution is located.

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.

Section 3205 of the Education Law provides that each minor from six to sixteen years of age in each school district or on an Indian reservation shall attend upon full time instruction.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to implement Regents’ policy regarding the provision of instruction to students in a home, hospital or institutional setting other than a school (homebound instruction).

3. NEEDS AND BENEFITS:

Home, hospital, or institutional (formerly homebound) instruction is an educational service provided by a school district to resident students (public and non-public) who are anticipated to be unable to attend school in person for at least ten days in a three-month period due to physical, mental, or emotional illness or injury. Homebound instruction ensures that students can continue learning and working towards mastery of learning standards while unable to attend school for a significant period of time for reasons beyond their control.

Currently, Commissioner’s regulations only address instruction provided to students cared for in hospitals or other institutions which provide for the care, custody, and treatment of children, other than a school setting, pursuant to Education Law § 3202(6) (8 NYCRR 175.21). This section of regulation pertains to average daily attendance and average daily membership for determination of state aid and establishes a minimum of 5 (elementary school level) or 10 (secondary level) hours of instruction per week.

For students with disabilities who are recommended for home, hospital, or institutional instruction by a committee on special education (CSE), section 200.6 of the Commissioner’s regulations requires the same minimum hours for elementary and secondary levels as prescribed in section 175.21 of the Commissioner’s regulations and reserves the determination of the instruction and related services to the CSE. There currently exists no instructional requirements for the general student population in need of such instruction, other than these stated minimums.

Throughout the 2021 - 2022 school year, the State Education Department received numerous inquiries from parents and caregivers regarding the extent to which they could request, or were entitled to receive, such instruction for students, including those who were immunocompromised. Schools also inquired as to how they should determine a student’s eligibility for such instruction.

The proposed rule will give districts and parents or guardians clarity on the requirements for the application and provision of such instruction. The proposed rule will also establish, beginning with the 2023-2024 school year, increased minimum instructional requirements for students who are unable to attend school in person for at least ten days out of the next three months due to illness or injury that requires the student to remain at home or in a hospital or other institution for the treatment of children, other than a school.

Thus, the Department proposes to add a new section 100.22 to the Commissioner’s regulations that:

• defines the terms tutor, school district of residence, and healthcare provider;

• requires medical verification from the student’s treating healthcare provider as well as a request for home, hospital, or institutional instruction from a parent or guardian;

• establishes a time frame for review of the request, including the ability to appeal a denial thereof to a board of education;

• identifies minimum requirements for instruction to continue a student’s academic progress, including the development of an instructional plan in consultation with the parent or guardian and, where appropriate, the student; and

• effective July 1, 2023, increases the minimum instruction hours to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician.

Additionally, the Department proposes to amend section 200.6 of the Commissioner’s regulations to provide that the amount of home, hospital, and institutional instruction for students with disabilities conforms to the increased requirements of section 100.22.

4. COSTS:

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

(b) Costs to local government: Consistent with statute, the proposed amendment increases the minimum instruction hours, effective July 1, 2023, to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician. There may be costs to school districts to provide these increased hours of instruction to homebound students. These costs will vary based on the number of resident students receiving such instruction in a school district. The Department has provided for an effective date of July 1, 2023 for this requirement to allow districts sufficient time to budget for these potential costs.

(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 identifies minimum requirements for the provision of home, hospital, or institutional instruction by school districts to continue a student’s academic progress, including the development of an instruction plan after obtaining and considering input from the parent or guardian and, where appropriate, the student. Additionally effective July 1, 2023, the proposed rule increases the minimum instruction hours, to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician. The proposed amendment also sets forth procedures school districts must follow when a request for such instruction has been received. The district must: (1) forward the request to the school’s medical director, who shall review the request; (2) provide instructional service to the student within five days after the school district receives notification of the student’s medication condition or within five school days from the parent or guardian’s request for homebound instruction, whichever occurs first; (3) notify the parent or guardian regarding the medical director’s approval or reason(s) for denial within five school days after receipt of written medication verification from the student’s treating health care provider; and (4) provide instructional services to the students during the time period where the school medical director is considering the request for instruction and while an appeal of a denial of such instruction is pending.

6. PAPERWORK:

The proposed amendment identifies minimum requirements for the provision of home, hospital, or institutional instruction by school districts to continue a student’s academic progress, including the development of an instruction plan after obtaining and considering input from the parent or guardian and, where appropriate, the student. Such plan must include but is not limited to: (1) the number of hours per week and hours per day that the student will receive instructional services; (2) the method by which instructional services will be delivered; (3) the location where instructional services will be provided; and (4) an explanation of how the instructional services will enable the student to maintain academic progress.

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 regarding the provision of instruction to students in a home, hospital or institutional setting other than a school (homebound instruction). Therefore, no significant alternatives were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

The proposed amendment took effect as an emergency rule on October 4, 2022. It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at the January 2023 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 January 2023 meeting, the proposed amendment will become effective as a permanent rule on January 25, 2023. 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 regarding the provision of instruction to students in a home, hospital or institutional setting other than a school (homebound instruction). Because it is evident from the nature of the proposed rule 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.

(b) Local governments:

1. EFFECT OF RULE:

The rule applies to all school districts in the State which have resident students requiring the provision of home, hospital, or institutional instruction.

2. COMPLIANCE REQUIREMENTS:

Home, hospital, or institutional instruction is an educational service provided by a school district to resident students (public and non-public) who are anticipated to be unable to attend school in person for at least ten days in a three-month period due to physical, mental, or emotional illness or injury. Such instruction ensures that students can continue learning and working towards mastery of learning standards while unable to attend school for a significant period of time for reasons beyond their control.

Currently, Commissioner’s regulations only address instruction provided to students cared for in hospitals or other institutions which provide for the care, custody, and treatment of children, other than a school setting, pursuant to Education Law § 3202(6) (8 NYCRR 175.21). This section of regulation pertains to average daily attendance and average daily membership for determination of state aid and establishes a minimum of 5 (elementary school level) or 10 (secondary level) hours of instruction per week.

For students with disabilities who are recommended for home, hospital, or institutional instruction by a committee on special education (CSE), section 200.6 of the Commissioner’s regulations requires the same minimum hours for elementary and secondary levels as prescribed in section 175.21 of the Commissioner’s regulations and reserves the determination of the instruction and related services to the CSE. There currently exists no instructional requirements for the general student population in need of such instruction, other than these stated minimums.

Throughout the 2021 -2022 school year, the State Education Department received numerous inquiries from parents and caregivers regarding the extent to which they could request, or were entitled to receive, “homebound” instruction for students, including those who were immunocompromised. Schools also inquired as to how they should determine a student’s eligibility for such instruction.

The proposed rule will give districts and parents or guardians clarity on the requirements for the application and provision of such instruction. The proposed rule will also establish, beginning with the 2023-2024 school year, increased minimum instructional requirements for students who are unable to attend school in person for at least ten days out of the next three months due to illness or injury that requires the student to remain at home or in a hospital or other institution for the treatment of children, other than a school.

Thus, the Department proposes to add a new section 100.22 to the Commissioner’s regulations that:

• defines the terms tutor, school district of residence, and healthcare provider;

• requires medical verification from the student’s treating healthcare provider as well as a request for home, hospital, or institutional instruction from a parent or guardian;

• establishes a time frame for review of the request, including the ability to appeal a denial thereof to a board of education;

• identifies minimum requirements for instruction to continue a student’s academic progress, including the development of an instructional plan in consultation with the parent or guardian and, where appropriate, the student; and

• effective July 1, 2023, increases the minimum instruction hours to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician.

Additionally, the Department proposes to amend section 200.6 of the Commissioner’s regulations to provide that the amount of home, hospital, and institutional instruction for students with disabilities conforms to the increased requirements of section 100.22.

3. PROFESSIONAL SERVICES:

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

4. COMPLIANCE COSTS:

Consistent with statute, the proposed amendment increases the minimum homebound instruction hours, effective July 1, 2023, to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician. There may be costs to school districts to provide these increased hours of instruction to homebound students. These costs will vary based on the number of resident homebound students in a school district. The Department has provided for an effective date of July 1, 2023 for this requirement to allow districts sufficient time to budget for these potential costs.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any technological requirements on local governments. Regarding economic feasibility see “COSTS” section above.

6. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Regents’ policy regarding the provision of instruction to students in a home, hospital or institutional setting other than a school (homebound instruction). While school districts may incur costs in implementing the proposed rule as outlined in the “COSTS” section above, the proposed rule is necessary to ensure that students receive meaningful and appropriate instruction while at home, in hospital, or an institutional setting due to illness or injury. 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 which have resident students requiring the provision of home, hospital, or institutional (homebound) instruction, 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 identifies minimum requirements for the provision of such instruction by school districts to continue a student’s academic progress, including the development of an instruction plan after obtaining and considering input from the parent or guardian and, where appropriate, the student. Such plan must include but is not limited to: (1) the number of hours per week and hours per day that the student will receive instructional services; (2) the method by which instructional services will be delivered; (3) the location where instructional services will be provided; and (4) an explanation of how the instructional services will enable the student to maintain academic progress.

Additionally effective July 1, 2023, the proposed rule increases the minimum instruction hours, to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician.

The proposed amendment also sets forth procedures school districts must follow when a request for home, hospital, or institutional has been received. The district must: (1) forward the request to the school’s medical director, who shall review the request; (2) provide instructional service to the student within five days after the school district receives notification of the student’s medication condition or within five school days from the parent or guardian’s request for homebound instruction, whichever occurs first; (3) notify the parent or guardian regarding the medical director’s approval or reason(s) for denial within five school days after receipt of written medication verification from the student’s treating health care provider; and (4) provide instructional services to the students during the time period where the school medical director is considering the request for instruction and while an appeal of a denial of such instruction is pending.

3. COMPLIANCE COSTS:

Consistent with statute, the proposed amendment increases the minimum home, hospital, or institutional instruction hours, effective July 1, 2023, to at least 10 hours of instruction per week at the elementary level and at least 15 hours of instruction at the secondary level, unless a lesser period is requested by the parent or guardian and supported by documentation submitted by a treating physician. There may be costs to school districts, including those located in rural areas, to provide these increased hours of such instruction to students. These costs will vary based on the number of resident students needing such instruction in a school district. The Department has provided for an effective date of July 1, 2023 for this requirement to allow districts sufficient time to budget for these potential costs.

4. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Regents’ policy regarding the provision of instruction to students in a home, hospital or institutional setting other than a school (homebound instruction). Because the purpose of the proposed amendment is to ensure that all students receive meaningful and appropriate instruction while at home, in hospital, or an institutional setting due to illness or injury, 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 regarding the provision of instruction to students in a home, hospital or institutional setting other than a school (homebound instruction). 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 since publication of the last assessment of public comment.