As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2021, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS.

An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.

Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on November 2, 2016, the State Education Department (SED) received the following comments on the proposed amendment.

1. COMMENT:

Generally support providing more flexibility to students who master New York State (NYS) standards but struggle to demonstrate knowledge and skills on Regents exams. Support superintendent determination as revised, particularly revisions made in response to concerns raised regarding the automatic review process possibly denying students their entitlement to a free appropriate public education (FAPE). Also support language concerning transition planning to require discussion of graduation requirements, availability of appeal, and safety net and superintendent determination options as it will help ensure families are aware of options available to their children and can plan accordingly.

DEPARTMENT RESPONSE:

Comments are supportive in nature and no response is necessary.

2. COMMENT:

While requirement for a “local determination” is imposed equally upon public school superintendents and principals of nonpublic and charter schools, the title of the determination, language in the rule, and the various descriptors and communications from the department, imply that only a public school superintendent shall make such determinations. Singular and cursory reference to “registered nonpublic high schools and charter schools” is insufficient in conveying the fact that this requirement is imposed on such schools principals.

To eliminate confusion, in the proposed rule and other communications (e.g., Superintendent Determination form), change “superintendent determination” to “local determination”; and change references to “superintendent” to “superintendent or principal of the registered nonpublic or charter school, as the case may be.” On the certification form, change heading to “Local Determination…” and “Name of School District” to “Name of School District, Nonpublic School or Charter School” and clarify that the name and signature of the school superintendent is not required for students enrolled in a registered nonpublic school or charter school.

DEPARTMENT RESPONSE:

The emergency rule was revised at the October 2016 Board of Regents meeting to clarify for purposes of section 100.5(d)(12) that the superintendent shall mean “the superintendent of a school district or the principal, head of school, or their equivalent, of a charter school or nonpublic school, as applicable.” We believe this additional clarification and the existing language in the proposed rule is sufficiently clear that registered nonpublic high schools and charter schools are required to conduct a superintendent determination upon parent request. The mandatory superintendent determination form has also been revised to provide additional clarity as to what information is to be included on the form for students enrolled in charter and nonpublic high schools.

3. COMMENT:

Concerned about parents needing to submit a written request for Superintendent Determination, especially parents who do not speak English or are not involved. Concerned about unintended consequences of change that the determination be initiated only upon written request by the parent and that for students whose parents are not available for whatever reasons (e.g. parent is missing or a district is unable to reach or engage a parent or get them to respond) this process will not be available. Most students eligible for determination are likely to be 18, age of majority, and not allowing a student to initiate this process seems inconsistent with SED’s Blueprint for Improved Results for Students with Disabilities, which identifies student self-advocacy as a core priority. Suggest having process for a superintendent’s determination be initiated in a manner similar to that for the appeals process, whereby the request for a superintendent’s determination be initiated by the student, a parent or guardian, a teacher or principal, or additionally, when recommended by the committee on special education (CSE).

DEPARTMENT RESPONSE:

The proposed rule was revised at the October 2016 Board of Regents (BOR) meeting to require a superintendent determination only upon the written request of the parent. This change by the Department was in response to several comments from the field on the initial proposed amendment that requiring the superintendent to automatically consider all eligible students with disabilities for the superintendent determination could inadvertently deny students their entitlement to FAPE. Under federal and State law/regulations, graduation with a regular school diploma constitutes a change in placement and ends a student’s entitlement to FAPE. In addition, once a student is determined eligible for a local or Regents diploma, parents and students do not have the right to decline such diploma. In addition, because NYS law does not allow procedural rights under the Individuals with Disabilities Education Act and Part 200 of the Regulations of the Commissioner of Education to transfer from parents to students with disabilities when they reach the age of majority, a student may not request a superintendent determination that could result in graduation with a regular diploma, unless such student is an emancipated minor in accordance with State law. Therefore, we decline to allow a student’s teacher, principal or CSE to make a request for a superintendent determination that could end a student’s eligibility for FAPE.

4. COMMENT:

Recommend individualized education program (IEP) form be revised so that transition section documents student progress towards a high school diploma and steps to be taken to help students work towards a diploma.

DEPARTMENT RESPONSE:

SED will take this comment under advisement when considering any possible changes to the State’s mandatory IEP form. Although not required by law or regulation to be included in a student’s IEP, nothing would preclude the CSE from documenting a student’s progress towards a high school diploma in the optional Student Information Summary form as a supplement to a student's IEP.

5. COMMENT:

Urge Department to extend superintendent determination to all students as students with disabilities are not the only population that struggles with Regents exams and students should not be penalized for not being able to demonstrate mastery of NYS standards on high-stakes standardized exams. All students who pass English and Math and otherwise met NYS standards in required subjects as evidenced by classroom performance should have opportunity to graduate with a local diploma and not have to fail Regents exams to have access to the superintendent determination.

Concerned superintendent determination pathway continues to operate on one size fits all framework that unfairly penalizes students who struggle on high-stakes tests. Urge SED to develop performance-based assessments and make them available to all students in lieu of Regents exams.

DEPARTMENT RESPONSE:

The proposal recognizes that the majority of students, including students with disabilities, can meet State’s learning standards for graduation but that there are certain students with disabilities with an IEP who, because of their disability, are unable to demonstrate proficiency on standard State assessments. The BOR will continue to discuss multiple diploma pathways for all students and alternative ways to assess proficiency toward State’s learning standards for purposes of graduation, including the use of performance-based assessments.