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Addressing the COVID-19 Crisis

NY-ADR

3/31/21 N.Y. St. Reg. EDU-52-20-00018-E

NEW YORK STATE REGISTER

VOLUME XLIII, ISSUE 13

March 31, 2021

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY RULE MAKING

I.D No. EDU-52-20-00018-E

Filing No. 256

Filing Date. Mar. 15, 2021

Effective Date. Mar. 15, 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:

Amendment of sections 30-3.16, 100.5(a) and 155.17(f) of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101, 207, 208, 209, 215, 305, 2801-a, 3009, 3012-d, 3204 and 3205

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 for the remainder of the 2019-2020 school year and 2020 summer school except for extended school year (ESY) services. The Governor of New York announced that schools across the State were permitted to open in the fall and required all school districts to submit reopening plans to the Department and the Department of Health. In response, the Department adopted emergency regulations at the April, May, June, July, September, October, November, and December 2020 Board of Regents meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis and to plan for the reopening of schools. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, it is necessary for the Department to adopt further regulatory amendments related to the following:

• APPR variance timeframes;

• Snow emergency day reporting; and

• Declination of exemptions for graduation assessment requirements.

Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (nonemergency) adoption, after publication in the State Register and expiration of the 60-day public comment period required in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), is the April 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 address issues arising from the COVID-19 crisis and to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis and to ensure that the emergency action taken at the December meeting remains continuously in effect.

It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the April 2021 Regents meeting, which is the first scheduled meeting after the 60-day public comment period prescribed in SAPA for State agency rule making.

Subject:

Addressing the COVID-19 crisis.

Purpose:

To address issues resulting from the COVID-19 crisis and to provide regulatory flexibility due to the COVID-19 crisis.

Text of emergency rule:

1. Subdivision (d) of section 30-3.16 of the Rules of the Board of Regents is amended by adding a new paragraph (4) to read as follows:

(4) Notwithstanding the timeframes contained in paragraphs (1) and (2) of this subdivision, upon a finding by the commissioner of extraordinary circumstances, variance applications approved after December 1 of a school year may be implemented in that school year.

2. Subdivision (f) of section 155.17 of the Regulations of the Commissioner of Education is amended to read as follows:

(f) Reporting. Each superintendent shall notify the commissioner as soon as possible whenever the emergency plan or building-level school safety plan is activated and results in the closing of a school building in the district, and shall provide such information as the commissioner may require in a manner prescribed by the commissioner. School districts within a supervisory district shall provide such notification through the district superintendent, who shall be responsible for notifying the commissioner. Such information need not be provided for routine snow emergency days. Provided, however, that for the 2020-21 school year, districts shall provide such notification for snow emergency days, including those days converted to remote instruction under the 2020-21 snow day pilot in accordance with the provisions of this subdivision.

3. Subparagraph (viii) of paragraph (5) of subdivision (a) of section 100.5 of the Regulations of the Commissioner of Education is amended to read as follows:

(viii)(a) Notwithstanding subparagraph (vii) of this paragraph, no entry shall be recorded on the transcript or permanent record of a student in the event that a parent or person in a parental relation declines the exemption to the graduation assessment requirement(s) in accordance with clause (b) of this subparagraph.

(b) For the 2019-20 school year, at least 10 calendar days and for the 2020-21 school year, at least 30 calendar days prior to the date on a which a student shall receive a high school diploma, the superintendent, or school principal of a charter school, or chief administrative officer of a registered nonpublic high school shall send notification by letter and also [be] by email and text, if available, to the parents or persons in parental relation of all students scheduled to graduate in June or August of 2020 or January, June or August of 2021 who have been exempted from a graduation assessment requirement pursuant to this section or paragraph (10) of subdivision (d) of section 100.6 of this title. Such notification shall be sent in English and translated, when appropriate, into the recipient's native language or mode of communication.

(d) …

(e) …

(f) …

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-52-20-00018-EP, Issue of December 30, 2020. The emergency rule will expire May 13, 2021.

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]

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law § 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.

Education Law § 207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on the Department.

Education Law § 208 empowers the Regents to confer by diploma honorary degrees as they deem proper, establish examinations and award and confer suitable certificates, diplomas and degrees on persons who meet the prescribed requirements for such.

Education Law § 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.

Education Law § 215 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.

Education Law § 305 establishes the general powers and duties of the Commissioner of Education.

Education Law § 2801-a requires the board of education or trustees of every school district, board of cooperative educational services, county vocational education and extension board, and the chancellor of the city school district of the city of New York to adopt and amend a comprehensive district-wide school safety plan and building-level emergency response and management plan.

Education Law § 3009 provides that unqualified teachers shall not be paid from school moneys.

Education Law § 3012-d provides for the development and implementation of annual professional performance reviews of teachers and principals.

Education Law § 3204 provides that a minor required to attend upon instruction may attend at a public school or elsewhere.

Education Law § 3205 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 amendments are consistent with the above statutory authority and are necessary to address numerous issues resulting from the interruptions caused by the COVID-19 crisis.

3. NEEDS AND BENEFITS:

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 for the remainder of the 2019-2020 school year and 2020 summer school except for extended school year (ESY) services. The Governor of New York announced that schools across the State were permitted to open in the fall and required all school districts to submit reopening plans to the Department and the Department of Health. In response, the Department adopted emergency regulations at the April, May, June, July, September, October, and November 2020 Board of Regents meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis and to plan for the reopening of schools. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, the Department is proposing further emergency regulatory amendments as follows:

• APPR Variances

o To provide flexibility for Annual Professional Performance Review (APPR) variance application timeframes, the Department is proposing to amend section 30-3.16 of the Rules of the Board of Regents to provide that upon a finding by the Commissioner of extraordinary circumstances, variance applications approved after December 1st of a school year may be implemented in that school year.

• Snow Day Reporting

o Section 155.17(f) of the Commissioner’s regulations requires superintendents to notify the Commissioner as soon as possible whenever a school’s emergency plan or building-level school safety plan is activated that results in the closing of a school building in the district, and to provide any information the Commissioner requires. However, this section provides that such information need not be provided for routine snow emergency days. Due to the COVID-19 crisis, the State has shifted to allowing and/or requiring remote instruction by many districts. In light of this, the Department is offering a one-year pilot program to allow school districts to shift to remote instruction for days that a district would have otherwise closed due to a snow emergency. The notification of these remote instruction snow days is necessary for the Department to review and evaluate the snow day pilot program for possible future extension.

• Declination

o At the September 2020 meeting of the Board of Regents, the Department permanently adopted amendments to section 100.5(a)(5) of the Commissioner’s regulations to provide that parents and persons in parental relation of students scheduled to graduate in January, June or August of 2020 who were exempted from a graduation assessment requirement be given the opportunity to decline such exemption. With the cancelation of the January 2021 Regents examination the Department is proposing to amend this provision to also provide parents and persons in parental relation of students scheduled to graduate in January, June or August of 2021 who have been exempted from a graduation assessment requirement the opportunity to decline such exemption. Additionally, the proposed amendments extend the time period required by schools to give parents or persons in parental relation notification of the option to decline such exemption from 10 calendar days to 30 calendar days.

4. COSTS:

a. Costs to State government: The amendments do not impose any costs on State government.

b. Costs to local government: The amendments do not impose any costs on local government.

c. Costs to private regulated parties: The amendments do not impose any costs on private regulated parties.

d. Cost to the regulatory agency: There are no additional costs to the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendments require that for the 2020-21 school year, school districts must notify the commissioner whenever a school building is closed for snow emergency days. Due to the COVID-19 crisis, the State has shifted to allowing and/or requiring remote instruction by many districts. In light of this, the Department is offering a one-year pilot program to allow school districts to shift to remote instruction for days that a district would have otherwise closed due to a snow emergency for the 2020-21 school year. The notification of these remote instruction snow days is necessary for the Department to review and evaluate the snow day pilot program for possible future extension.

6. PAPERWORK:

7. DUPLICATION:

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

8. ALTERNATIVES:

The proposed amendments are necessary to address issues resulting from the COVID-19 crisis and to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis. There are no significant alternatives to the proposed amendments and none were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

If adopted at the December 2020 Regents meeting, the emergency rule will become effective December 15, 2020. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption at its April 2021 meeting. If adopted at the April 2021 meeting, the proposed amendment will become effective on April 28, 2021. Because the emergency adoption will expire before the April 2021 Regents meeting, it is anticipated that an additional emergency action will be presented for adoption at the February Regents meeting. It is anticipated that regulated parties will be able to comply with the proposed amendment by the effective date.

Regulatory Flexibility Analysis

(a) Small businesses:

The proposed rule relates to addressing issues resulting from the COVID-19 crisis and providing flexibility for certain regulatory requirements in response to the COVID-19 crisis. The proposed amendments do not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendments that they do 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 purpose of the proposed amendments is to address issues resulting from the COVID-19 crisis and to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis. The proposed amendments apply to each of the 695 public school districts in the State.

2. COMPLIANCE REQUIREMENTS:

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 for the remainder of the 2019-2020 school year and 2020 summer school except for extended school year (ESY) services. In response, the Department adopted emergency regulations at the April, May, June, July, September, October, and November 2020 Board of Regents meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. The Governor of New York announced that schools across the State are permitted to open in the fall and required all school districts to submit reopening plans to the Department and the Department of Health. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, the Department is proposing further emergency regulatory amendments related to the following:

• APPR variance timeframes;

• Snow emergency day reporting; and

• Declination of exemptions for graduation assessment requirements.

The proposed amendment does require that for the 2020-21 school year, school districts must notify the commissioner whenever a school building is closed for snow emergency days. Due to the COVID-19 crisis, the State has shifted to allowing and/or requiring remote instruction by many districts. In light of this, the Department is offering a one-year pilot program to allow school districts to shift to remote instruction for days that a district would have otherwise closed due to a snow emergency for the 2020-21 school year. The notification of these remote instruction snow days is necessary for the Department to review and evaluate the snow day pilot program for possible future extension.

3. PROFESSIONAL SERVICES:

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

4. COMPLIANCE COSTS:

The proposed amendment will not impose any additional costs on local governments beyond those imposed by statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

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

6. MINIMIZING ADVERSE IMPACT:

The proposed amendments are necessary to provide flexibility for certain regulatory requirements in response to the COVID-19 crisis. Accordingly, no alternatives were 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 and from the chief school officers of the five big city school districts.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed rule applies to each public school district 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:

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 for the remainder of the 2019-2020 school year and 2020 summer school except for extended school year (ESY) services. In response, the Department adopted emergency regulations at the April, May, June, July, September, October, and November 2020 Board of Regents meetings to address numerous issues resulting from the interruptions caused by the COVID-19 crisis. The Governor of New York announced that schools across the State are permitted to open in the fall and required all school districts to submit reopening plans to the Department and the Department of Health. To address additional issues resulting from the interruptions caused by the COVID-19 crisis, the Department is proposing further emergency regulatory amendments related to the following:

• APPR variance timeframes;

• Snow emergency day reporting; and

• Declination of exemptions for graduation assessment requirements.

3. COSTS:

The proposed amendment will not impose any additional costs on school districts located in rural areas beyond those imposed by statute.

4. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to address issues resulting from the COVID-19 crisis and to provide flexibility for certain regulatory requirement in response to the COVID-19 crisis. Therefore, 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 and from charter schools, including those in rural areas.

Job Impact Statement

• APPR variance timeframes;

• Snow emergency day reporting; and

• Declination of exemptions for graduation assessment requirements.

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.

End of Document