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 the proposed amendment remain continuously in effect until they can be adopted as a permanent rule, emergency action is necessary for the preservation of general welfare. Emergency action is also needed 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.

(g) Differentiated accountability for schools and districts. Prior to the commencement of the 2012-2013 school year, the commissioner, based on the 2010-2011 school year results, shall designate focus districts, priority schools and focus charter schools. Prior to the commencement of the 2013-2014 school year, based on the 2011-2012 school year results, and each year thereafter up through and including the 2016-2017 school year, based on the subsequent school year results, the commissioner shall designate public schools requiring a local assistance plan.

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(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) . . .

(9) [Identification of local assistance plan schools as focus schools.

(i) Commencing with 2015-2016 school year results, a school that has been identified as a local assistance plan school based on 2013-2014, 2014-2015 and 2015-2016 school year results and based on each three consecutive school years of results thereafter will be preliminary identified as a focus school.

(ii) School districts and charter schools will be informed of the preliminary status of the school district and schools, and will be provided the opportunity to appeal such preliminarily identification, in a format and according to such timeline as prescribed by the commissioner. If the commissioner identifies a local assistance plan school as a focus school in a district in which in the prior school year there were no schools identified as focus or priority, the district shall also be identified as a focus district.

(iii) If a school district or charter school appeals the designation of a transfer high school as a focus school, the commissioner shall give careful consideration to the mission of the school, student performance, and the school's ability to effectively serve its students in a turnaround environment. The commissioner will take into account student performance factors including the age and number of credits that members of the cohort have upon admission to the school and the success of the school in graduating students up to the age of 21.

(10)] School requiring a local assistance plan.

(i) [Beginning with] For the 2015-2016 and 2016-2017 school years, using the 2013-2014 and 2014-2015 school year results respectively [and annually thereafter], a school that has not been designated as a priority or focus school shall be designated as a local assistance plan school if the school:

(a) failed to make adequate yearly progress (AYP) for an accountability group for three consecutive years on the same performance criterion in subdivision (j) of this section; provided that such school shall not be designated as a local assistance plan school if the school has met other measures of progress as determined by the commissioner pursuant to subparagraph (ii) of this paragraph; or

(b) has gaps in achievement on a performance criterion in subdivision (j) of this section and the school has not shown sufficient progress toward reducing or closing those gaps, or meeting other measures of progress as determined by the commissioner pursuant to subparagraph (ii) of this paragraph, between students who are members and students who are not members of that accountability group; or

(c) for determinations based on 2013-2014 school year results, the school is located in a district that is not designated as Focus and the school meets the criteria for identification as a focus school pursuant to subparagraph (7)(ii) of this subdivision, and such other measures of progress as determined by the commissioner pursuant to subparagraph (ii) of this paragraph and for determinations based on 2014-2015 school year results and each school year’s results thereafter the school meets the criteria for identification pursuant to paragraph (8) of this subdivision.

(ii) Notwithstanding the provisions of clauses (i)(a) through (c) of this paragraph, the commissioner may consider other measures of progress in determining whether to identify a school as a local assistance plan school using the 2013-2014 school year results and/or the 2014-2015 school year results, including but not limited to:

(a) whether a subgroup has made two consecutive years of AYP;

(b) the subgroup’s Student Growth Percentile (SGP) is above State average;

(c) the percentile rank of the Performance Index (PI)/graduation rate of a subgroup on an accountability measure as compared to the percentile rank of the PI/graduation rate of the subgroup in other schools in the State;

(d) whether the graduation rate of the subgroup is above State average; and/or

(e) if the subgroup’s performance on an accountability measure has changed from year to year.

(iii) For transfer high schools for which a district has submitted alternative high school cohort data, the commissioner shall review such data to determine whether the school shall be designated as requiring a local assistance plan.

(iv) Notwithstanding subparagraphs (i), (ii) and (iii) of this paragraph, commencing with the 2014-2015 school year results a school shall not be identified as a Local Assistance Plan School until the school meets any of the criteria specified in clauses (i)(b) and (c) of this paragraph for two consecutive years.

(v) Districts will be informed of the preliminary status of its schools and will be provided the opportunity to appeal the identification of any preliminarily identified school.

(vi) The commissioner shall remove from Local Assistance Plan status a school that for two consecutive school years does not meet the criteria for identification in clauses (i)(a), (b) and (c) of this paragraph.

(vii) The commissioner shall consider the 2015-2016 school year results in determining whether a school designated as a local assistance plan school pursuant to this paragraph shall retain such designation in the 2017-2018 school year.

[(11)] (10) Public notification of identification as a priority or focus school.

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the State Education Department, with Board of Regents as its head, and authorizes the Regents to appoint the Commissioner of Education as Department's Chief Administrative Officer, who is charged with general management and supervision of all public schools and educational work of State.

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

Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.

Education Law section 210 authorizes the Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.

Education Law section 305(1) and (2) 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 305(20) provides the Commissioner shall have such further powers and duties as charged by the Regents.

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

Education Law section 309 charges the Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.

Education Law section 3713(1) and (2) authorize State and school districts to accept federal law making appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to implement Regents policy relating to public school and district accountability and federal requirements relating to the provisions of the Every Student Succeeds Act of 2015 (ESSA).

3. NEEDS AND BENEFITS:

Prior to the passage of ESSA, the State’s accountability system was aligned with the requirements of the federal Elementary and Secondary Education Act (ESEA) Flexibility Waiver. Under the ESEA Flexibility Waiver, the Department committed to annually identifying LAP and Focus Schools.

On December 10, 2015, ESSA was signed into law by President Obama. ESSA, a bipartisan measure, reauthorized the 50-year-old ESEA and provides federal funds to improve elementary and secondary education in the nation's public schools and requires states and school districts, as a condition of funding, to take a variety of actions to ensure that all children, regardless of race, income, background, or where they live, receive the education they need to prepare them for success in postsecondary education, careers, and citizenship.

ESSA requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results. The law does not require the State to identify any additional category of schools for support and intervention. Furthermore, the USDE has issued guidance that clarifies that states are not required to identify new schools pursuant to a state’s approved ESEA flexibility waiver for intervention while transitioning to the new accountability system required by ESSA.

Accordingly, the proposed regulatory amendment would remove the requirement that LAP and Focus Schools be identified using assessment results from the 2015-16 and subsequent school years.

4. COSTS:

Cost to the State: none.

Costs to local government: none.

Cost to private regulated parties: none.

Cost to regulating agency for implementation and continued administration of this rule: none.

The proposed amendment does not impose any direct costs on the State, local governments, private regulated parties or the State Education Department beyond those imposed by federal law.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment relates to State and Federal standards for public school and school district accountability and will not impose any additional program, service, duty or responsibility upon local governments.

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:

There were no significant alternatives and none were considered. The proposed amendment relates to public school and school district accountability and is necessary to implement Regents policy relating to public school and district accountability and federal requirements relating to the provisions of the Every Student Succeeds Act of 2015 (ESSA).

9. FEDERAL STANDARDS:

The proposed amendment is necessary to conform the Commissioner’s Regulations to ESSA which requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results.

10. COMPLIANCE SCHEDULE:

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

(a) Small businesses:

The proposed amendment will not impose any additional compliance requirements but instead removes the requirement that LAP and Focus Schools be identified using assessment results from the 2015-16 and subsequent school years.

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 instead removes the requirement that LAP and Focus Schools be identified using assessment results from the 2015-16 and subsequent school years.

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 conform the Commissioner’s regulations to ESSA which requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results.

3. NEEDS AND BENEFITS:

Prior to the passage of ESSA, the State’s accountability system was aligned with the requirements of the federal Elementary and Secondary Education Act (ESEA) Flexibility Waiver. Under the ESEA Flexibility Waiver, the Department committed to annually identifying LAP and Focus Schools.

On December 10, 2015, ESSA was signed into law by President Obama. ESSA, a bipartisan measure, reauthorized the 50-year-old ESEA and provides federal funds to improve elementary and secondary education in the nation's public schools and requires states and school districts, as a condition of funding, to take a variety of actions to ensure that all children, regardless of race, income, background, or where they live, receive the education they need to prepare them for success in postsecondary education, careers, and citizenship.

ESSA requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results. The law does not require the State to identify any additional category of schools for support and intervention. Furthermore, the USDE has issued guidance that clarifies that states are not required to identify new schools pursuant to a state’s approved ESEA flexibility waiver for intervention while transitioning to the new accountability system required by ESSA.

Accordingly, the proposed regulatory amendment would remove the requirement that LAP and Focus Schools be identified using assessment results from the 2015-16 and subsequent school years.

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 compliance requirements or costs beyond those required by federal law and is necessary to implement Regents policy relating to public school and district accountability and federal requirements relating to the provisions of the Every Student Succeeds Act of 2015 (ESSA).

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 conform the Commissioner’s regulations to ESSA which requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results.

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:

Prior to the passage of the Every Student Succeeds Act of 2015 (ESSA), the State’s accountability system was aligned with the requirements of the federal Elementary and Secondary Education Act (ESEA) Flexibility Waiver. Under the ESEA Flexibility Waiver, the Department committed to annually identifying LAP and Focus Schools.

On December 10, 2015, ESSA was signed into law by President Obama. ESSA, a bipartisan measure, reauthorized the 50-year-old ESEA and provides federal funds to improve elementary and secondary education in the nation's public schools and requires states and school districts, as a condition of funding, to take a variety of actions to ensure that all children, regardless of race, income, background, or where they live, receive the education they need to prepare them for success in postsecondary education, careers, and citizenship.

ESSA requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results. The law does not require the State to identify any additional category of schools for support and intervention. Furthermore, the USDE has issued guidance that clarifies that states are not required to identify new schools pursuant to a state’s approved ESEA flexibility waiver for intervention while transitioning to the new accountability system required by ESSA.

Accordingly, the proposed regulatory amendment would remove the requirement that LAP and Focus Schools be identified using assessment results from the 2015-16 and subsequent school years.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any direct costs on the State, local governments, private regulated parties or the State Education Department beyond those required by federal law. It is necessary to conform the Commissioner’s regulations to ESSA which requires states to identify Comprehensive Support and Intervention and Targeted Support and Intervention Schools, beginning with 2017-2018 school year results.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any additional compliance requirements or costs and is necessary to implement Regents policy relating to public school and district accountability and federal requirements relating to the provisions of the Every Student Succeeds Act of 2015 (ESSA).

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 public school and school district accountability and is necessary to implement Regents policy relating to public school and district accountability and federal requirements relating to the provisions of the Every Student Succeeds Act of 2015 (ESSA).

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 since publication of the last assessment of public comment.