A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on July 5, 2017. It is anticipated that the rule will be adopted at the September 2017 Board of Regents meeting and become effective as a permanent rule on September 27, 2017, the date which the Notice of Adoption will be published in the State Register. However, the Emergency Adoption which was published in the State Register on July 5, 2017 will expire on September 17, 2017. In order to have these provisions continuously in effect until they can be adopted as a permanent rule, emergency action is therefore necessary for the preservation of general welfare to ensure that school districts have sufficient notice of the amendments and are able to continuously implement them beginning with the 2017-2018 school year which commenced on July 1, 2017.

Paragraph (2) of subdivision (ee) of section 100.2 of the Regulations of the Commissioner of Education is amended, as follows:

(2) Requirements for providing academic intervention services in grade three to grade eight.

(i) For the 2016-17, 2017-18, and 2018-2019 school years, schools shall provide academic intervention services following a two-step identification process:

(a) First, students who score below a median scale score between a level 2/partially proficient and a level 3/proficient on a grade 3-8 English language arts or mathematics State assessment as determined by the Commissioner, shall be considered for academic intervention services. Students scoring at or above the median scale score determined by the Commissioner but below a level 3/proficient score shall not be required to receive academic intervention services unless the school district, in its discretion, determines that such services are needed.

(b) Districts shall then use a district-developed procedure, to be applied uniformly at each grade level, for determining which students identified in clause (a) shall receive academic intervention services after it considers a student’s scores on multiple measures of student performance, which may include, but need not be limited to, one or more of the following measures, as determined by the district:

(1) developmental reading assessments for grades kindergarten through grade 6;

(2) New York State English as a Second Language Achievement Test (NYSESLAT);

(3) benchmark and lesson-embedded assessments for reading and mathematics in grades kindergarten through grade 6 based on teacher designed and selected assessments;

(4) common formative assessments that provide information about students’ skills;

(5) unit and lesson assessments for English language arts, mathematics, science, social studies and languages other than English for grades 7 through 8; and/or

(6) results of psychoeducational evaluations based on a variety of assessments and inventories.

(c) Each school district shall develop and maintain its policies for providing academic intervention services [during the 2016-2017 school year] no later than September 1[, 2016] of each school year and shall either post its policies to its website or distribute to parents in writing a description of such process, including a description of which student performance measures and scores on such measures will be utilized to determine eligibility for academic intervention services.

(d) Schools shall also provide academic intervention services to students who are [limited English proficient (LEP)] English Language Learners and are determined, through a district-developed or district-adopted procedure uniformly applied to [LEP] English Language Learner students, to be at risk of not achieving State learning standards in English language arts, mathematics, social studies and/or science, through English or the student's native language. This district procedure may also include diagnostic screening for vision, hearing, and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible disability pursuant to Part 117 of this Title.

(e) Schools shall also provide academic intervention services to students who are determined, through a district-developed or district-adopted procedure uniformly applied, to be at risk of not achieving State standards in English language arts, mathematics, social studies and/or science. This district procedure may also include diagnostic screening for vision, hearing, and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible [limited English proficiency] identification as an English Language Learner or for possible disability pursuant to Part 117 of this Title.

(ii) Commencing with the [2017-18] 2019-20 school year and each school year thereafter, schools shall provide academic intervention services following a two-step identification process:

(a) First, all students performing at or below a certain scale score, established through a standard setting process conducted by the Department, on one or more of the State elementary assessments in English language arts or mathematics shall be considered for academic intervention services. The standard setting process shall include a panel of educators, including teachers, principals and other school personnel. Students scoring at or above the scale score established by the standard setting panel and approved by the Commissioner shall not be required to receive academic intervention services unless the school district, in its discretion, determines that such services are needed.

(b) Districts shall then use a district-developed procedure, to be applied uniformly at each grade level, for determining which students identified in clause (a) shall receive academic intervention services after it considers a student’s scores on multiple measures of student performance, which may include, but need not be limited to, one or more of the following measures, as determined by the district:

(1) developmental reading assessments for grades kindergarten through grade 6;

(2) New York State English as a Second Language Achievement Test (NYSESLAT);

(3) benchmark and lesson-embedded assessments for reading and mathematics in grades kindergarten through grade 6 based on teacher designed and selected assessments;

(4) common formative assessments that provide information about students’ skills;

(5) unit and lesson assessments for ELA, mathematics, science, social studies and languages other than English for grades 7 through 8; and/or

(6) results of psychoeducational evaluations based on a variety of assessments and inventories.

(c) Each school district shall develop and maintain its policies for providing academic services during the [2017-2018] 2019-2020 school year and each school year thereafter no later than September 1, [2017] 2019 and each September thereafter and shall either post its policies to its website or distribute to parents in writing a description of such process, including a description of which student performance measures and scores on such measures will be utilized to determine eligibility for academic intervention services.

(d) Schools shall also provide academic intervention services to students who are [limited English proficient (LEP)] English Language Learners and are determined, through a district-developed or district-adopted procedure uniformly applied to [LEP] English Language Learner students, to be at risk of not achieving State learning standards in English language arts, mathematics, social studies and/or science, through English or the student's native language. This district procedure may also include diagnostic screening for vision, hearing, and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible [disability] disabilities pursuant to Part 117 of this Title; or

(e) Schools shall also provide academic intervention services to students who are determined, through a district-developed or district-adopted procedure uniformly applied, to be at risk of not achieving State standards in English language arts, mathematics, social studies and/or science. This district procedure may also include diagnostic screening for vision, hearing, and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible [limited English proficiency] identification as an English Language Learner or for possible disability pursuant to Part 117 of this Title.

1. STATUTORY AUTHORITY:

Education Law (Ed.L.) § 101 charges SED with the general management and supervision of public schools and the educational work of the State.

Ed.L. § 207 empowers the Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on SED by law.

Ed.L. § 305 (1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Regents, shall have general supervision over all schools and institutions subject to the provisions of the Ed.L., or of any statute relating to education, and shall execute all educational policies determined by the Regents.

Ed.L. § 308 authorizes the Commissioner to enforce and give effect to any provision in the Ed.L. or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.

Ed.L. § 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of education.

Ed.L. § 3204(3) set forth the programs of study in the public schools.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to continue the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

3. NEEDS AND BENEFITS:

In 2016, § 100.2(ee) was amended to change the methodology for identifying students in grades 3-8 to receive AIS through a two-step process. This two-step process includes an initial identification based on the student’s performance on the State assessments in ELA or math, and a secondary district-developed procedure to review multiple measures of student performance. This regulatory amendment to include multiple measures of student performance to identify students in need of AIS was based upon recommendations from New York State educators and stakeholders, and was included as Recommendation #19 in the Governor’s Common Core Task Force Report released in December 2015.

While the amendments requiring a two-step identification process and multiple measures of student performance were effective for the 2016-2017 school year, § 100.2(ee) was further amended to include a timeline for revisions to the AIS identification methodology that would be in effect beginning with the 2017-2018 school year. This required the Department to engage a panel of educators to conduct a standard setting process led by the Department to recommend the level of performance for the grades 3-8 ELA and mathematics assessments for which a student could be considered for AIS. Concurrently with the amendments to the AIS identification methodology, the Department was engaging, and continues to engage, stakeholders as the Board of Regents moves toward adopting the Next Generation English Language Arts and Mathematics Learning Standards. However, because such standards have not yet been adopted by the Board, and the corresponding assessments have yet to be developed, NYSED recommends delaying until the 2019-2020 school year the establishment of the standard setting panel to ensure appropriate alignment with the Next Generation English Language Arts and Mathematics Learning Standards.

As is currently the case, districts continue to have the flexibility to make a determination that a student who scores above the cut score for eligibility for AIS should receive this service. As is also currently the case, districts must by September 1 each year develop and maintain their policies for providing AIS and either post the district’s policies to the district’s website or distribute to parents in writing a description of such process, including a description of which student performance measures and scores on such measures will be utilized to determine eligibility for AIS.

In an effort to ensure that the standard setting process is meaningful within the context of the Next Generation English Language Arts and Mathematics Learning Standards, the Department is proposing to amend the regulation to continue the two-step identification process, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delay the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

4. COSTS:

(a) Costs to State government: None.

(b) Costs to local governments: None.

(c) Costs to private regulated parties: None.

(d) Costs to regulating agency for implementation and continued administration of this rule: None.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments but merely continues the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in identifying students eligible for AIS.

6. PAPERWORK:

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

7. DUPLICATION:

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

8. ALTERNATIVES:

There were no alternatives and none were considered.

9. FEDERAL STANDARDS:

There are no related federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.

(a) Small businesses:

The proposed amendment continues the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in identifying students eligible for AIS. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any 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 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 government:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments but merely continues the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in identifying students eligible for AIS.

1. EFFECT OF RULE:

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

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to continue the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

3. NEEDS AND BENEFITS:

In 2016, § 100.2(ee) was amended to change the methodology for identifying students in grades 3-8 to receive AIS through a two-step process. This two-step process includes an initial identification based on the student’s performance on the State assessments in ELA or math, and a secondary district-developed procedure to review multiple measures of student performance. This regulatory amendment to include multiple measures of student performance to identify students in need of AIS was based upon recommendations from New York State educators and stakeholders, and was included as Recommendation #19 in the Governor’s Common Core Task Force Report released in December 2015.

While the amendments requiring a two-step identification process and multiple measures of student performance were effective for the 2016-2017 school year, § 100.2(ee) was further amended to include a timeline for revisions to the AIS identification methodology that would be in effect beginning with the 2017-2018 school year. This required the Department to engage a panel of educators to conduct a standard setting process led by the Department to recommend the level of performance for the grades 3-8 ELA and mathematics assessments for which a student could be considered for AIS. Concurrently with the amendments to the AIS identification methodology, the Department was engaging, and continues to engage, stakeholders as the Board of Regents moves toward adopting the Next Generation English Language Arts and Mathematics Learning Standards. However, because such standards have not yet been adopted by the Board, and the corresponding assessments have yet to be developed, NYSED recommends delaying until the 2019-2020 school year the establishment of the standard setting panel to ensure appropriate alignment with the Next Generation English Language Arts and Mathematics Learning Standards.

As is currently the case, districts continue to have the flexibility to make a determination that a student who scores above the cut score for eligibility for AIS should receive this service. As is also currently the case, districts must by September 1 each year develop and maintain their policies for providing AIS and either post the district’s policies to the district’s website or distribute to parents in writing a description of such process, including a description of which student performance measures and scores on such measures will be utilized to determine eligibility for AIS.

In an effort to ensure that the standard setting process is meaningful within the context of the Next Generation English Language Arts and Mathematics Learning Standards, the Department is proposing to amend the regulation to continue the two-step identification process, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delay the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

4. PROFESSIONAL SERVICES:

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

5. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs but merely continues the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

6. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

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

7. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to continue Regents policy to provide academic intervention services to students in need of such supports, as identified by multiple measures of student performance. This amended identification methodology will continue to provide flexibility to school districts in determining which measures of academic performance are valuable indicators of student need for academic intervention services while at the same time ensure that students who will be best served by academic intervention services will be eligible to receive such services.

8. 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.

1. TYPES AND ESTIMATED NUMBER 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:

In 2016, § 100.2(ee) was amended to change the methodology for identifying students in grades 3-8 to receive AIS through a two-step process. This two-step process includes an initial identification based on the student’s performance on the State assessments in ELA or math, and a secondary district-developed procedure to review multiple measures of student performance. This regulatory amendment to include multiple measures of student performance to identify students in need of AIS was based upon recommendations from New York State educators and stakeholders, and was included as Recommendation #19 in the Governor’s Common Core Task Force Report released in December 2015.

While the amendments requiring a two-step identification process and multiple measures of student performance were effective for the 2016-2017 school year, § 100.2(ee) was further amended to include a timeline for revisions to the AIS identification methodology that would be in effect beginning with the 2017-2018 school year. This required the Department to engage a panel of educators to conduct a standard setting process led by the Department to recommend the level of performance for the grades 3-8 ELA and mathematics assessments for which a student could be considered for AIS. Concurrently with the amendments to the AIS identification methodology, the Department was engaging, and continues to engage, stakeholders as the Board of Regents moves toward adopting the Next Generation English Language Arts and Mathematics Learning Standards. However, because such standards have not yet been adopted by the Board, and the corresponding assessments have yet to be developed, NYSED recommends delaying until the 2019-2020 school year the establishment of the standard setting panel to ensure appropriate alignment with the Next Generation English Language Arts and Mathematics Learning Standards.

As is currently the case, districts continue to have the flexibility to make a determination that a student who scores above the cut score for eligibility for AIS should receive this service. As is also currently the case, districts must by September 1 each year develop and maintain their policies for providing AIS and either post the district’s policies to the district’s website or distribute to parents in writing a description of such process, including a description of which student performance measures and scores on such measures will be utilized to determine eligibility for AIS.

In an effort to ensure that the standard setting process is meaningful within the context of the Next Generation English Language Arts and Mathematics Learning Standards, the Department is proposing to amend the regulation to continue the two-step identification process, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delay the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs but merely continues the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any additional compliance requirements or costs and is necessary to implement Regents policy to continue the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delay the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in identifying students eligible for AIS.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.

The proposed amendment relates to the methodology by which school district shall identify students in grades 3 through 8 who receive Academic Intervention Services (AIS). The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any 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 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.

The agency received no public comment