(h) Extra class periods in physical education mean those sessions organized for instruction and practice in skills, attitudes and knowledge through participation in individual, group and team activities organized on an intramural, extramural [or], interschool athletic or inclusive athletic basis to supplement regular physical education class instruction.

2. Section 135.1 of the Regulations of the Commissioner of Education is amended by adding a new subdivision (w), to read as follows:

3. Subclause (1) of clause (b) of subparagraph (ii) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education shall be amended, effective to read as follows:

(b) Interschool athletic competition and inclusive athletic activities for pupils in senior high school grades 9, 10, 11 and 12. Inter-high school athletic competition and inclusive athletic activities shall be limited to competition between high school teams, composed of pupils in grades 9 to 12 inclusive, except as otherwise provided in subclause (a)(4) of this subparagraph for interschool athletic competition. Such activities shall be conducted in accordance with the following:

(1) Duration of competition. A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation, except as otherwise provided in this subclause, or except as authorized by a waiver granted under clause (d) of this subparagraph to a student with a disability, or as authorized for participation in inclusive athletic activities pursuant to clause (e) of this paragraph. If a board of education has adopted a policy, pursuant to subclause (a)(4) of this subparagraph, to permit pupils in the seventh and eighth grades to compete in senior high school athletic competition, such pupils shall be eligible for competition during five consecutive seasons of a sport commencing with the pupil's entry into the eighth grade, or six consecutive seasons of a sport commencing with the pupil's entry into the seventh grade. A pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest. A pupil shall be eligible for interschool competition in grades 9, 10, 11 and 12 until the last day of the school year in which he or she attains the age of 19, except as otherwise provided in subclause (a)(4) or clause (d) of this subparagraph, or in this subclause. The eligibility for competition of a pupil who has not attained the age of 19 years prior to July 1st may be extended under the following circumstances.

(i) …

(ii) …

(iii)…

(iv)…

(2) Registration. A pupil shall be eligible for interschool competition or inclusive athletic activities in a sport during a semester, provided that he is a bona fide student, enrolled during the first 15 school days of such semester, is registered in the equivalent of three regular courses, is meeting the physical education requirement, and has been in regular attendance 80 percent of the school time, bona fide absence caused by personal illness excepted.

(3) Sports standards. Interschool athletic programs shall be planned so as to provide opportunities for pupils to participate in a sufficient variety of types of sports. Inclusive athletic activities shall be planned so as to provide proportional representation of students with and without disabilities and meaningful participation. "Sports standards, such as number of contests, length of seasons, time between contests, required practice days, etc., for all interschool sports shall conform to guidelines established by the Commissioner of Education.

(c) Male and female pupils on interschool athletic teams and inclusive athletic activities.

(1) Equal opportunity to participate in interschool competition and inclusive athletic activities, either on separate teams or in mixed competition on the same team, shall be provided to [make] male and female students, except as hereinafter provided. In schools that do not provide separate competition for male and female students in a specific sport, no student shall be excluded from such competition solely by reason of sex, except in accordance with the provisions of subclauses (2) and (4) of this clause. For the purposes of this clause, baseball and softball shall be considered to constitute a single sport.

(2) In the sports of baseball, basketball, boxing, field hockey, football, ice hockey, lacrosse, rugby, soccer, softball, speedball, team handball, power volleyball where the height of the net is set at less than eight feet, and wrestling, the fitness of a given student to participate in mixed competition shall be determined by a review panel consisting of the school physician, a physical education teacher designated by the principal of the school, and if requested by the parents of the pupil, a physician selected by such parents. Such panel shall make its determination by majority vote of the members, and in accordance with standards and criteria issued by the department.

(3) Where a school provides separate competition for male and female pupils in interschool athletic competition or inclusive athletic activities in a specific sport, the superintendent of schools, or in the case of a nonpublic school or school system which elects to be governed by this clause, the chief executive officer of the school or school system, may permit a female or females to participate on a team organized for males. However, where separate competition is provided, males may not participate on teams organized for females.

(4) Where a school does not provide separate competition for male and female pupils in interschool athletic competition or inclusive athletic activities in a specific sport, the superintendent of schools, or in the case of a nonpublic school or school system which elects to be governed by this clause, the chief executive officer of the school or school system, or the section may decline to permit a male or males to participate on a team organized for females upon a finding that such participation would have a significant adverse effect upon the opportunity of females to participate successfully in interschool competition or interschool athletic activities in that sport.

4. Subparagraph (ii) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education shall be amended by adding a new clause (e) to read as follows:

(e) Exemption from the age requirement and four-year limitation for inclusive athletic activities. A student who is enrolled in grades 9 through 12 and has not yet graduated from high school may be eligible to participate in inclusive athletic activities under the following limited conditions:

(1) such student may be granted an exemption to the age requirement and four-year limitation prescribed in subclause (b)(1) of this subparagraph. An exemption shall only be granted upon a determination by the superintendent of schools or chief executive officer of the school or school system, as applicable, that the given student meets the following criteria:

(i) such student is a bona fide student of the high school for which the student wishes to participate in inclusive athletic activities and has not graduated from high school; and

(ii) such student is otherwise qualified to compete in the inclusive athletic activities for which he or she is applying for an exemption; and

(iii) such student has undergone a physical evaluation by the director of school health services which shall include an assessment of the student's level of physical development and maturity, and the director of school health services has determined that the student's participation in such activities will not present a safety or health concern for such student; and

(2) Nothing in this clause shall permit the extension of eligibility for a student to participate in interschool athletic competition as defined in this section.

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

Education Law § 803 provides that all pupils above the age of eight years in all elementary and secondary schools shall receive physical education instruction under the direction of the Commissioner of Education as the regents may determine.

Education Law § 3204 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:

Consistent with the above statutory authority, the proposed amendments to 135.1 and 135.4 of the Regulations of the Commissioner of Education establish a definition for inclusive athletic activities and to establish the eligibility rules applicable to participants in such inclusive athletic activities.

3. NEEDS AND BENEFITS:

Commissioner’s Regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for students in grades 7 through 12. The underlying spirit of Commissioner’s regulations governing interscholastic athletics is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for all student athletes who wish to participate in interscholastic athletic competition.

Recently, the New York State Public High School Athletic Association (NYSPHSAA) and the Special Olympics New York organized a Unified Sports program available to all NYSPHSAA member schools. The Unified Sports Program provides for students with and without disabilities to participate on such teams for the purpose of training and competition. According to NYSPHSAA “[p]articipation is rooted in the principle of meaningful involvement which ensures that every player is given an opportunity to contribute to the success of his or her team through their unique skills. Inclusive activity is among the most conducive ways to break down stereotypes and foster relationships….”

This unique program which offers opportunities for participation in athletic competition, was not specifically contemplated in the regulations that establish the eligibility rules generally applicable to student athletes. NYSPHSAA has therefore been applying the duration of competition rule contained within Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1) and applicable to traditional interscholastic athletics to inclusive athletic activities. Generally, the regulation limits eligibility for senior high school athletic competition in a sport during each of four consecutive seasons of such sport, commencing with the pupil’s entry into ninth grade and prior to graduation, and until the last day of the school year in which he or she attains the age of 19.

Because the Unified Sports program is designed with participation and inclusivity in mind, applying the existing duration of competition rule curtails a student’s participation to four years and before attaining the age of 19. These current eligibility requirements are not aligned with the intent of the inclusive athletics program. There are a number of students who continue school beyond the age of athletic eligibility, most particularly students with disabilities, who often remain in school until age 21.

Since this program has increased in popularity, NYSPHSAA and Special Olympics New York, along with numerous other constituents, have approached the Department to allow students an extended time to participate in the Unified Sports program, as long as they continue to be eligible to attend school and such participation would not pose a safety risk.

4. COSTS:

Cost to the State: No additional costs are imposed on the State.

Costs to local government: No additional costs are imposed on local governments.

Cost to private regulated parties: No additional costs are imposed on regulated private parties.

Cost to regulating agency for implementation and continued administration of this rule: No additional costs are imposed on the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local government.

6. PAPERWORK:

The proposed amendment does not impose any specific recordkeeping, reporting or other paperwork requirements.

7. DUPLICATION:

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

8. ALTERNATIVES:

The proposed amendment is necessary to establish a definition for inclusive athletic activities and to establish eligibility rules applicable to participants in such inclusive athletic activities. There were no significant alternatives and none were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at the January 2020 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 2020 meeting, the proposed amendment will become effective on January 29, 2020.

(a) Small businesses:

The purpose of the proposed amendments is to establish a definition for inclusive athletic activities and to establish the eligibility rules applicable to participants in such inclusive athletic activities. The proposed amendment will not impose any additional compliance requirements.

The amendment does not impose any adverse economic impact, reporting, recordkeeping or other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further steps 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 government:

1. EFFECT OF RULE:

The propose amendment applies to each of the 695 public school districts in the State.

2. COMPLIANCE REQUIREMENTS:

As the term Unified Sports is a trademarked name, the proposed amendment to the regulation categorizes this program as “inclusive athletic activities.” The proposed amendment establishes a definition for inclusive athletic activities and establishes the eligibility rules applicable to participants in such inclusive athletic activities. It is important to note that nothing in the amendments alter the eligibility limitations contained within Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1) for participation in traditional interscholastic athletic competition. The proposed rule is only applicable to students participating in inclusive athletic activities (i.e., the Unified Sports Program).

The proposed amendment establishes an exemption from the age and four-year limitation for students participating in inclusive athletic activities. A student who is enrolled in grades 9 through 12 and has not yet graduated from high school may continue to participate in inclusive athletic activities beyond the age of 19 and beyond four consecutive seasons of an inclusive athletic activity if the superintendent of schools or chief executive officer of the school or school system, as applicable, determines that the student meets the following criteria:

• such student is a bona fide student of the high school for which the student wishes to participate in inclusive athletic activities and has not graduated from high school; and

• such student is otherwise qualified to compete in the inclusive athletic activities for which he or she is applying for an exemption; and

• such student has undergone a physical evaluation by the director of school health services which shall include an assessment of the student's level of physical development and maturity, and the director of school health services has determined that the student's participation in such activities will not present a safety or health concern for such student.

3. NEEDS AND BENEFITS:

Commissioner’s Regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for students in grades 7 through 12. The underlying spirit of Commissioner’s regulations governing interscholastic athletics is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for all student athletes who wish to participate in interscholastic athletic competition.

Recently, the New York State Public High School Athletic Association (NYSPHSAA) and the Special Olympics New York organized a Unified Sports program available to all NYSPHSAA member schools. The Unified Sports Program provides for students with and without disabilities to participate on such teams for the purpose of training and competition. According to NYSPHSAA “[p]articipation is rooted in the principle of meaningful involvement which ensures that every player is given an opportunity to contribute to the success of his or her team through their unique skills. Inclusive activity is among the most conducive ways to break down stereotypes and foster relationships….”

This unique program which offers opportunities for participation in athletic competition, was not specifically contemplated in the regulations that establish the eligibility rules generally applicable to student athletes. NYSPHSAA has therefore been applying the duration of competition rule contained within Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1) and applicable to traditional interscholastic athletics to inclusive athletic activities. Generally, the regulation limits eligibility for senior high school athletic competition in a sport during each of four consecutive seasons of such sport, commencing with the pupil’s entry into ninth grade and prior to graduation, and until the last day of the school year in which he or she attains the age of 19.

Because the Unified Sports program is designed with participation and inclusivity in mind, applying the existing duration of competition rule curtails a student’s participation to four years and before attaining the age of 19. These current eligibility requirements are not aligned with the intent of the inclusive athletics program. There are a number of students who continue school beyond the age of athletic eligibility, most particularly students with disabilities, who often remain in school until age 21.

Since this program has increased in popularity, NYSPHSAA and Special Olympics New York, along with numerous other constituents, have approached the Department to allow students an extended time to participate in the Unified Sports program, as long as they continue to be eligible to attend school and such participation would not pose a safety risk.

4. PROFESSIONAL SERVICES:

The proposed amendment imposes no additional professional services requirements on school districts.

5. COMPLIANCE COSTS:

The proposed amendments will not impose any additional program, service, duty, responsibility or costs beyond those imposed by the statute.

6. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendments do not impose any new technological requirements on school districts or charter schools. Economic feasibility is addressed in the Costs section above.

7. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to establish a definition for inclusive athletic activities and to establish the eligibility rules applicable to participants in such inclusive athletic activities. Accordingly, no alternatives were considered.

8. LOCAL GOVERENMENT 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.

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 less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

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

Commissioner’s Regulation § 135.4(c)(7)(ii) establishes the parameters for participation in interscholastic athletic competition for students in grades 7 through 12. The underlying spirit of Commissioner’s regulations governing interscholastic athletics is to provide for the safety and equal opportunity for participation for public school students. These principles guide athletic eligibility determinations for all student athletes who wish to participate in interscholastic athletic competition.

Recently, the New York State Public High School Athletic Association (NYSPHSAA) and the Special Olympics New York organized a Unified Sports program available to all NYSPHSAA member schools. The Unified Sports Program provides for students with and without disabilities to participate on such teams for the purpose of training and competition. According to NYSPHSAA “[p]articipation is rooted in the principle of meaningful involvement which ensures that every player is given an opportunity to contribute to the success of his or her team through their unique skills. Inclusive activity is among the most conducive ways to break down stereotypes and foster relationships….”

This unique program which offers opportunities for participation in athletic competition, was not specifically contemplated in the regulations that establish the eligibility rules generally applicable to student athletes. NYSPHSAA has therefore been applying the duration of competition rule contained within Commissioner’s regulation § 135.4(c)(7)(ii)(b)(1) and applicable to traditional interscholastic athletics to inclusive athletic activities. Generally, the regulation limits eligibility for senior high school athletic competition in a sport during each of four consecutive seasons of such sport, commencing with the pupil’s entry into ninth grade and prior to graduation, and until the last day of the school year in which he or she attains the age of 19.

Because the Unified Sports program is designed with participation and inclusivity in mind, applying the existing duration of competition rule curtails a student’s participation to four years and before attaining the age of 19. These current eligibility requirements are not aligned with the intent of the inclusive athletics program. There are a number of students who continue school beyond the age of athletic eligibility, most particularly students with disabilities, who often remain in school until age 21.

Since this program has increased in popularity, NYSPHSAA and Special Olympics New York, along with numerous other constituents, have approached the Department to allow students an extended time to participate in the Unified Sports program, as long as they continue to be eligible to attend school and such participation would not pose a safety risk.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to establish a definition for inclusive athletic activities and to establish eligibility rules applicable to participants in such inclusive athletic activities. There were no significant alternatives and none were considered.

5. RURAL AREA PARTICIPATION:

Copies of the proposed amendments have been provided to the Rural Advisory Committee for review and comment.

The purpose of the proposed amendments is to establish a definition for inclusive athletic activities and to establish the eligibility rules applicable to participants in such inclusive athletic activities.

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.