After an extensive, 18-month long public engagement process, the Department, with Board approval, submitted New York State’s ESSA plan to the USDE for review on September 17, 2018. Subsequently, the Department met regularly with the USDE to provide clarifications on the plan. On January 17, 2018, the USDE approved the State’s plan. In January 2018, the Department provided the Board of Regents with an update on the approved plan and in March 2018, the Department provided an update regarding the financial transparency requirements related to ESSA. In April 2018, the Department provided Board of Regents with a detailed summary of the proposed amendment and the Board of Regents voted to authorize Department staff to publish the proposed amendment in the State Register for the 60-day public comment period so that the Department had an opportunity to receive as much public comment as possible before adoption as an emergency rule for the 2018-2019 school year, as required under ESSA.

In order to implement the State’s USDE approved ESSA Plan and to prepare for implementation of the plan beginning with the 2018-19 school year, a new section 100.21 and amendments to Commissioner's Regulations sections 100.2(ff), 100.2(m), 100.18, 100.19 and Part 120 were made to align the Commissioner's Regulations with the approved ESSA plan, relating to New York State's updated accountability system.

A Notice of Proposed Rulemaking was published in the State Register on May 9, 2018 and based on comments from the field, revisions were made to the proposed amendment. As a result, a Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2018. Based on comments received during the public comment period on the revised rule making, the Department recommends making further revisions to the regulation. Because the Board of Regents meets at scheduled intervals, the December 2018 Regents meeting is the earliest the proposed rule could be presented for adoption, after expiration of the 30-day public comment period required under the State Administrative Procedure Act for a revised rulemaking. However, since the 2018-2019 school year began on July 1, 2018 emergency adoption is necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the June 2018 Regents and the revisions adopted at the September 2018 Regents meeting remain continuously in effect until the rule can be adopted as a permanent rule in order to timely implement New York State's approved ESSA plan, so that school districts may timely meet school/school district accountability requirements for the 2018-2019 school year and beyond, consistent with the approved ESSA plan and pursuant to statutory requirements. It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at its December 2018 meeting.

1. STATUTORY AUTHORITY:

Ed.L. § 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.

Ed.L. § 112(1) authorizes Commissioner to require schools and school districts to facilitate the prompt enrollment of children who are released or conditionally released from residential facilities.

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

Ed.L. § 210 authorizes 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.

Ed.L. § 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.

Ed.L. §§ 305(1) and (2) provide 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.

Ed.L. § 305(20) provides Commissioner shall have such further powers and duties as charged by the Regents.

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

Ed.L. §§ 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.

The Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

2. LEGISLATIVE OBJECTIVES:

The proposed rule is consistent with the above statutory authority and is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

3. NEEDS AND BENEFITS:

On December 10, 2015, ESSA was signed into law by President Obama. This bipartisan measure reauthorized the 50-year-old ESEA, which 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 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. New York State receives approximately $1.6 billion annually in funding through ESSA.

After an extensive, 18-month long public engagement process, the Department, with Board approval, submitted New York State’s ESSA plan to the USDE for review on September 17, 2018. On January 17, 2018, the USDE approved the State’s plan. In April 2018, the Department provided the Board of Regents with a description of the draft regulatory terms and the Board directed the Department to finalize the draft regulatory terms for publication in the State Register.

The rule will ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan, and provide school districts with the opportunity to demonstrate improvements by creating improvement plans that address the needs and resource issues found in identified schools.

Summary of New or Revised Key Concepts within Draft Regulations

New Categories of School and District Identification

• Comprehensive Support and Improvement schools (CSI)

o Beginning with 2017-2018 school year results, the Commissioner will identify a minimum of five percent of the lowest performing Title I elementary and middle schools and five percent of the lowest performing Title I high schools as CSI as measured by the performance of a school’s “all students” group. The Commissioner will also identify as CSI any high school with a four-year graduation rate for the “all students” group below 67% and a five-year or six-year graduation rate that is not at or above 67% that do not successfully appeal such designation. CSI schools will first be identified for the performance of the “all students” group in the 2018-19 school year, based on 2017-18 school year results, and every three years thereafter. Schools that have been identified for targeted support and improvement (TSI) based on the performance of one or more accountability subgroups and that after having been further identified for additional targeted support remain identified as TSI after three years for one or more of accountability subgroup(s) for which the school was provided additional targeted support also will be identified as CSI, if such schools do not successfully appeal their designation.

• Targeted Support and Improvement schools (TSI) – Schools with one or more consistently underperforming accountability subgroups will be identified annually beginning with the 2019-2020 school year, except that a school identified as a Priority or Focus school during the 2017-2018 school year may be identified (using 2017-2018 school year data only), if such school meets the criteria for identification as a TSI school, based on 2017-18 school year results. A “consistently underperforming” accountability subgroup is one that meets the criteria for identification for two consecutive years.

o In addition, in the year that the Commissioner identifies schools as CSI for the performance of the “all students” group, the Commissioner will determine if any TSI school should be identified for “additional targeted support.” A TSI school will be identified for additional targeted support if the school has been identified as TSI in both the current and prior school year and one or more subgroups in the school for which the school has been identified are performing at a level that would have caused the school to be identified as CSI if such performance had been attributed to the “all students” group.

• Target Districts – The Department will identify any school district with one or more CSI or TSI schools as a Target District, if the district does not successfully appeal such designation. A district can also be identified as Target District if the district-wide performance levels are the same or lower than those that would cause a school to be identified as CSI or TSI.

• Schools Performing at Level 1 - In addition to the above categories, any school that is not identified as CSI or TSI but has an accountability subgroup that performed at Level 1 on an indicator must participate in a needs assessment, in a format as may be prescribed by the Commissioner, to determine the additional support that the school needs to improve performance. Such needs assessment must identify the academic achievement gaps between accountability subgroups within the school, identify the root causes for the gaps, and delineate the resources and strategies that the district will use to support the school to address such gaps.

New Indicators used for Identification of Schools and Districts beginning with 2017-2018 school year results, for the purposes of ranking schools and identifying CSI and TSI schools, and Target Districts

Note: For each indicator listed below, each subgroup for which a school or district is accountable will be assigned a Level 1-4, if the subgroup has a minimum of 30 student results for which the school or district is accountable.

New methodology for identification of Schools and Districts, using Decision Tables

Each school’s data for each of the indicators, for each subgroup, will be calculated and then assigned a level, 1-4. Level 1 represents the lowest level of achievement for that indicator, and Level 4 represents the highest level of achievement for the indicator.

Using the levels given to each school and district for each of the indicators, for the “all students” subgroup and for each accountability subgroup, which in New York are the major racial/ethnic groups, English language learners, low-income students, and students with disabilities, the Department will use decision tables to identify CSI and TSI schools. Below are the scenarios under which schools will be identified as CSI or TSI.

1. Decision Table for Identification of Elementary/Middle Schools

2. Decision Table for Identification of High Schools

Note: In the above tables, “None” means that the subgroup in a school or district for which a determination is being made has not been assigned an ELP level because there are fewer than 30 student results for this measure.

An elementary, middle, or high school will be identified as a CSI school if the school’s all students group matches the pattern of performance in any one of the rows in the above tables. An elementary, middle, or high school will be identified as a TSI school if for two consecutive years any of the school’s subgroups match the pattern of performance in any one of the rows in the above tables, except that, using 2017-18 school year results, a Priority or Focus School can be identified for TSI if it matches a pattern of performance in any one of the rows in the above tables based on 2017-18 school year results only. A district may be identified as a Target District if it has any schools identified as either TSI or CSI. In addition, if a district has no schools identified as TSI or CSI, the district may still be identified as a Target District if the district for two consecutive years matches a pattern of performance in any of the rows in the above tables.

New and Revised Supports and Interventions for Schools and Districts

Schools and districts are first identified in the 2018-19 school year using 2017-18 school year data. Schools and districts will use the 2018-19 school year to develop their comprehensive education plans, which will be implemented in the next school year. However, any school that has been identified as a Priority or Focus School during the 2017-18 school year must continue to implement its School Comprehensive Education Plan during the 2018-19 school year, regardless of whether the school is identified as a CSI or a TSI.

CSI school requirements and supports are differentiated, based on the amount of time a school or district has been identified and progress made during the years of identification.

• All CSI schools must:

o Participate in a needs assessment that includes a review of school quality, a review of select State-reported and State-supported data indicators and survey results, and a resource audit that examines the effectiveness of professional development and how schools and districts use their time (e.g., instructional time, length of school day and/or school year), space (facilities), staff, and funds in relation to best practices. In the first year of identification, the review of school quality will look at practices related to the tenets of the Diagnostic Tool for School and District Effectiveness. In subsequent years, the review of school quality may focus on providing feedback about the implementation of the school’s comprehensive education plan.

o Develop and implement, in consultation with parents, school staff, and other stakeholders, a school comprehensive education plan based on the results of the needs assessment that is submitted for approval to the school district and the New York State Education Department (NYSED or “the Department”). The Commissioner has the authority to reject any plan that does not provide sufficient evidence that parents and pedagogical staff and in high schools, students, meaningfully participated in the development of the plan.

o Describe in detail within the school comprehensive education plan the initiatives that will be implemented to positively affect student learning and to address the accountability measures for which the school has been identified, including the implementation of school-level evidence-based interventions and job-embedded professional development.

• School-level evidence-based intervention means an activity, strategy, or intervention that has met the criteria outlined in section 8101(21)(A) of ESSA by demonstrating a statistically significant effect on improving student outcomes or other relevant outcomes: provided that such intervention must be implemented so as to affect such percentage of a school’s enrollment or such percentage of classrooms as may be prescribed by the Commissioner for the school.

• Job-embedded professional development means professional development for teachers and leaders that is informed by the results of the comprehensive needs assessment or progress needs assessment of the school and by the teacher or leader evaluation system and any applicable supports, and addresses identified teacher and student needs.

o Limit incoming teacher transfers to teachers rated effective or highly effective pursuant to Education Law § 3012-d by a school district in the previous school year, subject to collective bargaining as required under article 14 of the Civil Service Law. Districts shall be required to include this provision in any successor collective bargaining agreement unless otherwise prohibited by law.

o Either establish (1) a participatory budgeting process, which means a process by which CSI schools, beginning with the 2019-2020 school year, annually set aside and spend a designated amount of allowable funds in such school year, in an amount specified by the Commissioner and not to be less than $2,000, for the purpose of funding projects that are proposed by and voted on by the students and families of the school as determined by the Commissioner. The project proposal period and subsequent final vote must occur annually within each CSI school and be organized in such manner as may be specified by the Commissioner, which shall include, at a minimum, guidance that the final vote to determine the projects that are funded is open to all students and that the families of each student shall have a minimum of one vote per family; or (2) select alternative forms of increasing parent and student engagement from a list determined by the Commissioner.

o Conduct parent, teacher and student surveys.

o Provide notification to parents of the accountability status of the school prior to the first day of school following the identification of the school.

o Obtain approval of the school comprehensive education plan from the local board of education (or the Chancellor in New York City) and post the plan on its website.

• Requirements for CSI schools after the first year of identification are determined based on whether the school has met or exceeded its Annual Achievement Progression targets, which are based on the “all students” group’s performance on the Core Subject Performance Index and Mean Student Growth Percentiles for elementary and middle schools and the Composite Performance Index and Graduation Rate Index for high schools.

o In the second school year of identification, CSI schools must continue the annual required actions identified above and the principal must submit quarterly reports to the district.

o If a school has met or exceeded its Annual Achievement Progression targets, the school will proceed with the annual required actions identified above; however, the school can conduct a progress review that focuses on delivering feedback regarding the implementation of the school comprehensive education plan as its review of school quality.

o If a school has not met its Annual Achievement Progression targets after the first year of identification, the school will receive additional technical assistance from the Department. The school will either conduct a progress review focused on the implementation of the school comprehensive education plan or a comprehensive review using the Diagnostic Tool for School and District Effectiveness as its review of school quality. In addition, any district with a CSI school that does not meet its Annual Achievement Progression target will submit a Principal Support Report to the Commissioner to outline how the district will support the leadership of the CSI school.

• In the third year of identification, CSI schools that fail to meet their Annual Achievement Progression targets for two consecutive years will receive additional support and oversight. In addition to the annual requirements that all CSI schools must complete, the CSI schools that do not meet their Annual Achievement Progression targets for two consecutive years must:

o Partner with the local Board of Cooperative Educational Services (BOCES), Regional Bilingual Educational Resource Network, Teacher Center, Regional Technical Assistance Center, or other technical assistance provider as approved by the Commissioner, to support implementation of the school comprehensive plan.

• In the fourth year of identification, CSI schools in which the Annual Achievement Progression results have declined for two consecutive years following identification must offer Public School Choice.

In addition, any district with a CSI school that failed to meet its Annual Achievement Progression targets for two consecutive years will have as part of its district-level needs assessment an evaluation of the district’s capacity to support its leaders in CSI schools.

Support and oversight for TSI schools will be the responsibility of the district, which will lead the needs assessment process and approve the school comprehensive education plan for the TSI school.

• All TSI schools must:

o Participate in an annual needs assessment that includes a review of school quality, a review of select State-reported and State-supported data indicators and survey results, and a resource audit that examines the effectiveness of professional development and how schools and districts use their time (e.g., instructional time, length of school day and/or school year), space (facilities), staff, and funds in relation to best practices. In the first year of identification, the review of school quality will look at practices related to the tenets of the Diagnostic Tool for School and District Effectiveness to consider how the organization of the school may be impacting subgroup performance. In subsequent years the review of school quality may focus on providing feedback about the implementation of the school’s comprehensive education plan.

o Use the results of the needs assessment and other data concerning subgroup performance to create a school comprehensive education plan in collaboration and consultation with parents, teachers, and students, as required by section 100.11.

o Describe in detail within the school comprehensive education plan the implementation of evidence-based interventions and job-embedded professional development.

o Provide notification to parents of the accountability status of the school prior to the first day of school following the identification of the school.

o Obtain approval of the school comprehensive education plan from the local board of education (or the Chancellor in New York City),and post the plan on its website.

• TSI schools submit their plans annually to the board of education for review and approval.

• Schools that perform at Level 1 for one or more accountability groups on one or more accountability measures but are not CSI or TSI schools

Based on a needs assessment, the district, in consultation with parents, school staff, and other stakeholders at the school, consistent with the district plan pursuant to section 100.11, shall identify additional resources that the district will provide to the school to assist it to increase performance on the accountability measure for the identified group(s). The district in its consolidated application must also identify the additional resources and professional development that the district will provide the school to improve performance.

Target Districts will be required to develop plans that address the needs of the identified schools within their district and/or address the areas for which the district has been identified.

• All Target Districts must:

o Participate in a comprehensive needs assessment.

o Develop a district comprehensive improvement plan that describes in detail the implementation of interventions and professional development that address the needs identified by the school and district needs assessments and in consultation and collaboration with parents, teachers, and students consistent with section 100.11.

o Provide notification to parents of the accountability status of the district prior to the first day of school following the identification of the school.

o Obtain approval of the district comprehensive improvement plan from the local board of education (or the Chancellor in New York City) and post the plan on its website.

Public School Choice

• Public school choice means the option for students enrolled in a CSI school to transfer to a public school in good standing at the appropriate grade level within the district.

• Districts are required to offer public school choice when a CSI school does not make its Annual Achievement Progression targets for two consecutive years. In that instance, parents at the school must be notified of their right to public school choice, and the district must conduct a school choice enrollment process. To the extent that the district currently provides transportation, the district must continue pay for such costs for any student who takes advantage of public school choice.

• Any student who is currently enrolled in a school as a result of a public school choice plan must be allowed to remain enrolled in that school until completing the highest grade level at that school and must continue to receive transportation to such school.

• Districts that are required to offer Public School Choice, but cannot do so (e.g., the only high school in the district has been identified), must increase the amount they expend on participatory budgeting.

Participatory Budgeting

• Beginning with the 2019-2020 school year, CSI schools must either set aside and spend no less than $2,000 annually for the purposes of funding projects that are proposed and voted on by the students and families of the school; or select alternative forms of increasing parent and student engagement from a list determined by the Commissioner. If the schools decide to do participatory budgeting, all students and their families will have the right to vote on which projects are funded with these funds. Where a CSI school has declined in performance for two consecutive school years on the measures used to make Annual Achievement Progress determinations and the district is unable to provide public school choice for all of the students in the CSI school who request it, the district must ensure that the CSI school expends greater amounts through the participatory budgeting process.

Principal Support Report

• To be completed by any district with at least one CSI school that does not meet its Annual Achievement Progression targets.

• The district identifies any areas in which the district determines it could more effectively support the school leadership team.

• The report is intended to provide summary information for the district and the State and must be consistent with Education Law §§ 3012-c (10) and 3012-d(15) with respect to safeguarding personally identifiable information.

Principal Needs Assessment

• To be completed by any Target District with one or more CSI schools that fail to meet their Annual Achievement Progressions targets for two consecutive years.

• Is an additional component of the District Needs Assessment that assesses the capacity of the district to support its school leaders.

• The results of the Principal Needs Assessment along with a plan to address the findings must be submitted to the Department.

Requirement for at least 95% Participation Rate in State Annual Assessments

• Identification of schools that fail to meet participation rate requirements.

o Beginning with 2017-2018 and 2018-2019 school year results, a school will be identified for participation rate if the school has a participation rate below 95% for the same subgroup, in the same subject (i.e., ELA or mathematics) for two consecutive years, and fails to improve participation rate, as determined by the Commissioner, as compared to the previous year for the same subgroup(s) and subject(s), except that such plan is not required if the subgroup performs at or above Level 3 on the Weighted Average Achievement Index. Such school must develop a participation rate improvement plan as described below.

• Required plan for schools that fail to meet participation rate requirements.

o In the first year of identification, the school will conduct a participation rate self-assessment and develop a participation rate improvement plan:

• The plan will be developed in collaboration with a committee composed of the school principal or their designee(s); school staff including teachers and student support staff, no more than fifty percent of whom shall be selected by the representative collective bargaining organization(s); and parents selected by school-related parent organizations (not employed by the district or a collective bargaining organization representing teachers or administrators in the district). A district may designate a school based management team or a community engagement team to be the committee for this purpose.

• The plan must address participation of students from all subgroups, as defined in the regulation, for which the school has failed to meet the required 95% participation rate and failed to improve the participation rate as compared to the previous year.

• The plan must be adopted by the district Board of Education (in New York City, the chancellor or chancellor's designee), after consultation with the committee.

o In the second year of identification, if the school fails to improve its participation rates for the subgroup(s) and subject(s) for which the initial plan was required, the district will conduct a participation rate audit and develop an updated participation rate improvement plan.

o In the third year of identification, for any school for which a district audit and district participation rate improvement plan was completed in the previous school year and that fails to improve its participation rates for the subgroup(s) and subject(s) for which the plan was required, the district must work with a Board of Cooperative Educational Services (BOCES) to conduct a participation rate audit and develop an updated participation improvement rate plan.

o In the fourth year of identification, for any school for which a BOCES audit and BOCES participation rate improvement plan was completed in the previous school year and that fails to improve its participation rates for the subgroup(s) and subject(s) for which the plan was required, the Department will conduct an audit of the participation rate and the school may be required by the Commissioner to address recommendations in the audit intended to raise student participation in State assessments.

o Beginning with 2017-2018 and 2018-2019 school year results, schools that are identified for participation rate and are among the lowest ten percent of schools within the State for participation rate must submit a participation rate improvement plan for approval by the Commissioner.

o Once a school is required to develop a participation rate improvement plan for a subgroup, the school must continue to update and implement the plan annually until such time as the subgroup meets the 95% participation requirement. However, a new plan will not be required for schools that are showing improvement in participation rate.

Schools under Registration Review process

• A school can be identified for Registration Review in three ways:

1. If the school has been placed into Receivership.

2. If school has been identified for three consecutive years as a Comprehensive Support and Improvement School.

3. If the school has been identified as a poor learning environment by the Commissioner.

• Schools under Registration Review that are also identified as schools in Receivership or as CSI schools continue to engage in the activities required by those designations.

• If a school is placed under Registration Review because of being designated a poor learning environment, an integrated intervention team, which may include a Distinguished Educator, will conduct a diagnostic review of the school and make recommendations to the Commissioner regarding whether the school should:

o Continue to implement its current school comprehensive education plan, with modifications as suggested by the Integrated Intervention Team;

o Phase-out or close the school; or

o Create and implement a new school comprehensive education plan.

The Commissioner shall review the recommendations of the integrated intervention team and may approve, or modify and approve as so modified, such recommendations. Upon such approval, the Commissioner shall direct that the school district submit in a format and according to a timeline prescribed by the Commissioner a revised improvement plan or intervention plan, a new intervention plan, or a plan for phase out or closure that implements the recommendations of the integrated intervention team. Upon approval of the plan by the Commissioner, the school shall be required to implement such plan.

• If a School Under Registration Review that is also a school in Receivership fails to make Demonstrable Improvement, as required pursuant to Section 100.19, for two consecutive years or a School Under Registration Review that is a CSI school or a school identified as poor learning environment fails to make required progress for two consecutive year as determined by the Commissioner, the Commissioner may direct the district to submit a plan to take one of these actions:

(a) enter into a contract with the State University of New York Board of Trustees, subject to the approval of the Commissioner of Education, pursuant to Education Law section 355(n) for the education of the children of the school; or

(b) for the city school district of the City of New York, enter into a contract with the City board and the City University of New York pursuant to Education Law section 2590(k) to administer a New York City public high school; or

(c) close or phase out the school.

In the event that the school district does not submit an acceptable plan in such format and in such timeline as the Commissioner may establish, the Commissioner may direct that the school district close or phase out the school pursuant to a plan approved by the Commissioner. And if the district has not taken the required actions to close or phase out a school, the Commissioner shall recommend that the registration of the school be revoked.

Charter Schools

• Charter schools continue to be identified in the same manner as all other public schools in New York State.

• Each charter school identified as a CSI or TSI school will be required to take such actions as are required by its charter authorizer pursuant to article 56 of the Education Law, consistent with the charter agreement that each charter school has with its charter authorizer and as determined by the charter school's board of trustees in consultation with the charter school's authorizer.

Transfer Schools

• Should a transfer school be identified as CSI, the school may petition the Commissioner to be subject to differentiated interventions, which might, for example, include having the school district rather than the Department conduct the required needs assessment.

4. COSTS:

Cost to the State: The proposed rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

Costs to local government: The rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

Based upon the requirements described in the rule to implement certain activities based upon a school or district’s accountability status, there may be some associated costs. These activities, include, but are not necessarily limited to, annual notifications of accountability status; participation in comprehensive needs assessments; conduct of parent, staff and student surveys; and development and implementation of improvement plans. For school districts with schools receiving under Titles I, IIA or III, these funds may be used to pay the associated costs. CSI schools that fail to show progress on their Annual Achievement Progression targets for two consecutive years will be required to enter into a partnership with a BOCES, Regional Bilingual Education Resource Network, Teacher Center or other Regional Technical Assistance Center, or other technical assistance provider as determined by the Commissioner to support the implementation of the Comprehensive Education Plan. Depending on the nature of such partnership, and whether such partnership already exists, a school district may incur costs to implement this provision of the regulations.

In some instances, school districts newly identified as Target Districts with schools that are designated as CSI or TSI that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources. However, it is anticipated that non-Title I schools will be eligible to receive federal 1003 School Improvement Grants that can be used to fund these activities.

Districts that have schools that fail to meet the 95% participation rate requirements must develop a participation rate improvement plan, which in some cases beginning in the 2021-22 school year shall include partnering with a BOCES or other technical assistance provider to conduct a participation rate audit and for schools that fail to meet certain conditions, to update such participation rate improvement plan. Because these partnerships will likely vary significantly in cost based on the number of schools for which a plan is required no estimate can be made at this time regarding required costs. Similarly districts that have schools that will be closed or phased out as a consequence of these regulations may incur costs in developing and implementing a closure or phase out plan.

In other instances, school districts and their schools will be designated as in Good Standing, when under the present accountability system these school districts and schools might otherwise have been designated as Priority, Focus or Local Assistance Plan schools. In these cases, school districts may incur cost savings as they will no longer be required to participate in site visits or in the other previously required interventions for districts and schools with such designations. In addition, a number of previous requirements for schools identified as Priority or Focus have been reduced or eliminated, thereby providing districts with increased flexibility in use of funds. For example, the current requirement for Title I Schools that are designated as Priority and Focus Schools to offer public school choice has been replaced by a substantially more limited public school choice program for a subset of Comprehensive Support and Improvement Schools.

Because of the number of school districts and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from district-to-district, as well as school-to-school, depending on the school and district designation, the district’s choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.

Cost to private regulated parties: None.

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

5. LOCAL GOVERNMENT MANDATES:

The rule is necessary to assist school districts to be able to meet the provisions of New York’s approved ESSA plan. The proposed regulation will require districts with schools identified as CSI or TSI to make significant changes to the educational programs. See the response to Question #3, Needs and Benefits.

6. PAPERWORK:

The proposed rule generally contains paperwork requirements consistent with those in existing regulations and does not generally impose any new paperwork requirements beyond those consistent with the above statutory authority and the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802). For further information please see the above response to Question #3, Needs and Benefits.

7. DUPLICATION:

The rule does not duplicate existing State or federal regulations.

8. ALTERNATIVES:

After an extensive, 18-month long public engagement process, the Department, with Board approval, submitted New York State’s ESSA plan to the USDE for review on September 17, 2018 which was approved on January 17, 2018. The proposed rule is necessary conform Commissioner's Regulations to New York's approved ESSA plan.

9. FEDERAL STANDARDS:

The rule is necessary to conform regulations to New York's approved ESSA plan and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20U.S.C.§ 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

10. COMPLIANCE SCHEDULE:

It is anticipated that parties will be able to timely implement the rule’s requirements beginning with its effective date.

Small businesses:

The proposed rule relates to public school and school district accountability and is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401.

The purpose of the proposed rule is to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan, and provide school districts with the opportunity to demonstrate improvements by creating improvement plans that address the needs and resource issues found in identified schools. The State and local educational agencies (LEAs) are required to comply with the ESSA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended by the Every Student Succeeds Act of 2015.

The rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESSA, and 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.

Local governments:

1. EFFECT OF RULE:

The rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act of 1965, as amended.

2. COMPLIANCE REQUIREMENTS:

See the response to Question #3, Needs and Benefits in the Regulatory Impact Statement.

3. PROFESSIONAL SERVICES:

The rule imposes no additional professional service requirements.

4. COMPLIANCE COSTS:

For further information related to the costs of implementation please see the response to Question #4, Costs in the Regulatory Impact Statement.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The rule imposes no technological requirements on school districts. Costs are discussed under the Compliance Costs section above.

6. MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.

The rule adds a new section 100.21 and revises sections 100.2(m), 100.2(ff), 100.18, 100.19 and Part 120 of the Commissioner's Regulations to align New York’s public school and school district accountability system to the approved ESSA plan and to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan. The rule has been carefully drafted to meet specific federal and State requirements.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed rule have been provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts and to charter schools.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act (ESEA) of 1965, as amended by the Every Student Succeeds Act (ESSA), 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:

The rule is necessary to necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802). For a more complete explanation please see the Regulatory Impact Statement.

3. COSTS:

Cost to the State: The proposed rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

Costs to local government: The rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

Based upon the requirements described in the rule to implement certain activities based upon a school or district’s accountability status, there may be some associated costs. These activities, include, but are not necessarily limited to, annual notifications of accountability status; participation in comprehensive needs assessments; conduct of parent, staff and student surveys; and development and implementation of improvement plans. For school districts with schools receiving under Titles I, IIA or III, these funds may be used to pay the associated costs. CSI schools that fail to show progress on their Annual Achievement Progression targets for two consecutive years will be required to enter into a partnership with a BOCES, Regional Bilingual Education Resource Network, Teacher Center or other Regional Technical Assistance Center, or other technical assistance provider as determined by the Commissioner to support the implementation of the Comprehensive Education Plan. Depending on the nature of such partnership, and whether such partnership already exists, a school district may incur costs to implement this provision of the regulations.

In some instances, school districts newly identified as Target Districts with schools that are designated as CSI or TSI that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources. However, it is anticipated that non-Title I schools will be eligible to receive federal 1003 School Improvement Grants that can be used to fund these activities.

Districts that have schools that fail to meet the 95% participation rate requirements must develop a participation rate improvement plan, which in some cases beginning in the 2021-22 school year shall include partnering with a BOCES or other technical assistance provider to conduct a participation rate audit and for schools that fail to meet certain conditions, to update such participation rate improvement plan. Because these partnerships will likely vary significantly in cost based on the number of schools for which a plan is required no estimate can be made at this time regarding required costs. Similarly districts that have schools that will be closed or phased out as a consequence of these regulations may incur costs in developing and implementing a closure or phase out plan.

In other instances, school districts and their schools will be designated as in Good Standing, when under the present accountability system these school districts and schools might otherwise have been designated as Priority, Focus or Local Assistance Plan schools. In these cases, school districts may incur cost savings as they will no longer be required to participate in site visits or in the other previously required interventions for districts and schools with such designations. In addition, a number of previous requirements for schools identified as Priority or Focus have been reduced or eliminated, thereby providing districts with increased flexibility in use of funds. For example, the current requirement for Title I Schools that are designated as Priority and Focus Schools to offer public school choice has been replaced by a substantially more limited public school choice program for a subset of Comprehensive Support and Improvement Schools.

Because of the number of school districts and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from district-to-district, as well as school-to-school, depending on the school and district designation, the district’s choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.

Cost to private regulated parties: None.

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

4. MINIMIZING ADVERSE IMPACT:

The rule is necessary to conform the Commissioner's Regulations to New York State's approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

The rule adds a new section 100.21 and revises sections 100.2(m), 100.2(ff), 100.18, 100.19 and Part 120 of the Commissioner's Regulations to align New York’s public school and school district accountability system to the approved ESSA plan and to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan. The rule has been carefully drafted to meet specific federal and State requirements. Since these requirements apply to all local educational agencies in the State that receive ESSA funds, it is not possible to adopt different standards for school districts in rural areas.

5. RURAL AREA PARTICIPATION:

The rule was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.

The proposed rule making relates to public school and school district accountability and is necessary to implement New York’s approved ESSA plan and to comply with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).

The purpose of the proposed rule is to ensure a seamless transition to the revised accountability plan as authorized under the approved ESSA plan, and provide school districts with the opportunity to demonstrate improvements by creating improvement plans that address the needs and resource issues found in identified schools. The State and local educational agencies (LEAs) are required to comply with the ESSA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended by the Every Student Succeeds Act of 2015.

The proposed rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESSA, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed rule that it will have no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Following publication of the Notice of Proposed Rule Making in the State Register on May 9, 2018 through August 17, 2018, the Department received the following comments on the proposed amendment. These comments include those listed in Attachment D that had been received between May 9 and June 4, but the Department’s response has been updated in some instances:

1. COMMENT: A student should be credited as achieving Level 2 on the high school Composite Performance Level based on whether the student has met the graduation assessment in the subject as opposed to scoring at least 65 on the examination. This would ensure equal weighting for students with disabilities who are eligible for the safety net provision.

DEPARTMENT RESPONSE: No change necessary. ESSA requires that a uniform standard be applied to all students in computing Academic Achievement. It would be inconsistent with ESSA to define achievement levels differently for different groups of students.

2. COMMENT: The levels assigned to the ELP success ratio should be revised. The threshold would be a more reliable measure if the Success Ratio for Level 2 were 0.50 to 0.85 (or 0.90) and Level 3 were 0.86 to 1.24.

DEPARTMENT RESPONSE: No change necessary. The ELP success ratio has been designed so that schools that have below average performance receive Level 2.

3. COMMENT: The commenter indicates that the proposed regulation allows a single student to be counted multiple times to determine if there are 30 or more students. The commenter recommends that there be a minimum of 80% of the students being counted only once for each of the 3 subject areas. This will prevent the situation where the results from a very small number of students over two years could result in a school meeting the minimum n-size of 30 for an accountability group.

DEPARTMENT RESPONSE: The computation of minimum n-size in the draft regulations is consistent with the requirements of ESSA and New York’s approved ESSA plan. While it is true that a student may be calculated twice over a two-year period, the calculation used for minimum n-size was developed to strike a balance between ensuring reliability of the measure and maximizing the number of students for whom a school is held accountable. However, the Department has made changes to the regulations to make it less likely that an elementary or middle school that has been assigned a Weighted Average Achievement Level will not be assigned a Core Subject Performance Level or a high school that is assigned a Composite Performance Level is not assigned a Graduation Rate Level. This has been accomplished by lowering the n-size to 15 for assignment of a Level in certain instances for the Core Subject Performance measure and the 4-, 5-, and 6-year Graduation Rate measures.

4. COMMENT: Those who are at the 40th or 45th percentile should be assigned a Level 3 in the conversion chart so that 55 to 60% of the schools will be at Level 3 or 4 on measures such as Composite Performance or student growth.

DEPARTMENT RESPONSE: These measures have been designed so that schools that have below average performance receive Level 2. The Department does not believe that a school performing at the 40th or 45th percentile should be assigned Level 3 because these percentiles mean that on average students in the accountability group have shown less growth than their peers. Therefore, no change is necessary.

5. COMMENT: It seems unfair to expect a newly arrived ELL to graduate within a four-year window. Perhaps there could be some leeway to examine the graduation of newly arrived ELLs within a different cohort for graduation and accountability purposes.

DEPARTMENT RESPONSE: Schools have flexibility to determine the appropriate grade to which to assign a newly arrived ELL. Once a student has been assigned to a high school cohort, ESSA does not allow for different rules to be applied to how the graduation rate is computed for English language learners. However, New York uses a four-, five-, and six-year graduation rate for accountability purposes in recognition of the fact that some students will need more than four years to graduate from high school. The Department does not believe any change is warranted.

6. COMMENT: The College Career and Civic Readiness Index is based on the four-year graduation rate cohort. Although Skills and Achievement Commencement Credentials are included in the 2.0 weighting and 1.5 weightings, these students typically do not graduate in 4 years. They are most likely to attend school until they are 21. The commenter recommends that students with disabilities on track for a Skills and Achievement Credential should not be held to the four-year graduation criteria.

DEPARTMENT RESPONSE: Ungraded students with disabilities are included in the Accountability Cohort and the Four-Year, Five-Year, and Six-Year Graduation Rate Cohorts in the school year in which they attain the age of 17. The Department does not believe a change is warranted.

7. COMMENT: Several commenters expressed concern with the process by which the draft regulations were presented to the Board of Regents and believes that the Board should have seen and had the opportunity to review and discuss the full text of the proposed regulations prior to their publication as a proposed rulemaking in the State Register.

DEPARTMENT RESPONSE: At its April 2018 meeting, the Board of Regents was presented with a detailed summary of the proposed amendment and the Board of Regents voted to authorize Department staff to publish the proposed amendment in the State Register for the 60-day public comment period so that the Department had an opportunity to receive as much public comment as possible before adoption as an emergency rule for the 2018-2019 school year, as required under ESSA. On April 24, the Board of Regents was provided with the materials filed with the Department of State for publication in the State Register, and as soon as the full text was finalized and posted on the Department’s website on May 9, the text was made available to the Board of Regents. The Board of Regents was presented with the full text for emergency adoption at the June 2018 meeting.

8. COMMENT: Several commenters expressed the position that the proposed ESSA regulations make a direct frontal assault on the rights of parents to opt-out their children from the state testing system. Commenters expressed the position that the Department should not seek to punish schools where parents and student exercise their right to opt out, and they strongly encouraged the Department to remove this provision in the draft regulations and respect parents’ and students’ rights to opt out. According to the commenters, creating new high stakes consequences for schools with high opt out rates is a significant step in the wrong direction. Several commenters stated that all educational factors in a school should be used when assessing its effectiveness rather than primarily focusing on one assessment. This is contrary to the intent of ESSA and good public policy. Further, a number of these provisions were never discussed in public and were not detailed in the summary provided to the Board of Regents at the April Regents meeting.

DEPARTMENT RESPONSE: ESSA requires that LEAs provide parents upon their request with information on any state or local policy or procedures and parental rights regarding student participation in mandated assessments, where applicable. ESSA also makes clear that it does not preempt any state or local law with regard to a parental decision regarding participation in State assessments. The proposed regulations, therefore, contain no provisions relating to the right of parents to opt their children out of the State assessment system.

In a letter received by the Department on August 23, 2018, Mr. Patrick Rooney, Deputy Director of the USDE’s Office of State Support, reiterated that each state and local educational agency “must implement a set of high-quality, yearly, academic assessments that includes at a minimum, assessments in mathematics, reading/language arts, and science to all public elementary and secondary school students….This requirement does not permit certain students or a specific percentage of students to be excluded from assessments. Rather it sets out the rule that all students in tested grades must be assessed.” ESSA requires that State assessments annually measure the achievement of not less than 95% of all students, and 95% of all students in each subgroup of students. Therefore, the proposed regulations, consistent with the requirements of ESSA and New York’s approved plan, specify how academic achievement is computed and what the consequences are for schools when, for at least two consecutive years, fewer than 95% of students in an accountability subgroup do not participate in the grades 3-8 English language arts or mathematics assessment.

9. COMMENT: In the plan that New York submitted to the United States Department of Education, Academic Achievement in elementary/middle ELA and math was to be computed using the higher of two ways of ranking performance: one using as the denominator the greater of the number of continuously enrolled students tested or 95% of the number of continuously enrolled students and the other using as the denominator the number of continuously enrolled students tested. However, in the proposed regulations, these two performance scores are added together to calculate the “Composite Performance Index.” This has the effect of lowering the “score” in schools with higher opt-out rates for the Composite Performance Index that is then used to identify schools for CSI and TSI status. The higher score will only be used as a “tiebreaker” when two schools have the identical Composite Performance Index score.

DEPARTMENT RESPONSE: This revision (to add the two performance scores together) was made to the State’s ESSA plan based on discussions with the United States Department of Education that ultimately led to approval of New York’s plan in January 2018. The proposed regulatory provisions conform to the State’s approved ESSA plan.

10. COMMENT: The proposed regulations establish an Academic Progress Index for each school. This Index is based on performance levels on the ELA and Math assessments using continuously enrolled students as the student count. This is a measure used to identify CSI and TSI schools. Several commenters expressed that this measure penalizes schools with opt-outs since it assumes all students are taking the state assessments.

DEPARTMENT RESPONSE: As indicated in the April summary of the proposed regulations, the Academic Progress Index is computed based upon the State long-term goals and Measures of Interim Progress (MIPs) in the schools. ESSA requires that goals and MIPs be computed using as the denominator for the computations the greater of the number of continuously enrolled students tested or 95% of the number of continuously enrolled students. These long-term goals and MIPs are computed using the above denominator as the baseline, thus taking into account that not all students participate in State assessments.

11. COMMENT: The proposed regulations provide that a school cannot exit CSI or TSI status if the school has a participation rate below 95 percent, regardless of all other indicators. This will block schools from exiting CSI or TSI status which otherwise have met performance targets set by SED.

DEPARTMENT RESPONSE. The regulations have been revised so that schools can be removed from TSI and CSI status so long as the accountability group(s) for which the school is required to do a participation rate improvement plan are not performing at Level 1 on the Weighted Average Achievement measure.

12. COMMENT: Several commenters expressed concern over the provision that permits the Commissioner to place under preliminary registration review (SURR) any school with “excessive percentages of students that fail to fully participate in the state assessment program.” This authority does not exist in the current SURR regs. If these regulations are enacted the Commissioner would have the unilateral authority to close schools that have high opt-out rates but are otherwise high performing.

DEPARTMENT RESPONSE: In response to public comment received, the regulations have been revised to remove this provision. However, to be clear, the comment is inaccurate in its characterization of this provision of the regulations. These are not new requirements. Section 100.18(k)(3) of the Commissioner’s regulations currently authorizes the Commissioner to place under registration review any school in “which excessive percentages of students fail to fully participate in the State assessment program,” and a similar provision has existed in § 100.2(p) for over a decade.

13. COMMENT: Several commenters expressed concerns with the provisions that permit the Commissioner to impose a financial penalty by requiring districts to set aside Title I funds if the participation rate on state tests do not improve by the third year. This provision was not included in the summary provided to the Regents at the April Regents meeting.

DEPARTMENT RESPONSE: In response to public comment received, the regulations have been revised to remove this provision. However, to be clear, the comment is inaccurate in its characterization of this provision of the regulations. This provision permitted, but did not mandate, that the Commissioner require a set aside to be used to increase student participation, and the set aside was not a financial penalty, but rather represented the possibility of the school district redirecting funds for this purpose.

However, in response to public comment received, this provision has been removed and a new provision has been substituted, which provides that for any school for which the Department conducts an audit based on a minimum of five years of low participation rates, the school may be required to undertake additional activities to raise student participation rates on State assessments.

14. COMMENT: The proposed regulations require any new collective bargaining agreement to limit teachers transferring into a CSI school to those rated effective/highly effective. Many collective bargaining agreements contain provisions that govern the transfer of teachers. This provision of the draft regulations would impair these existing and long-standing collective bargaining agreements by requiring that any future agreement preclude certain teacher transfers.

DEPARTMENT RESPONSE: The proposed regulation provides that any such requirement would not affect current collective bargaining agreements (CBAs) and would only be applicable to the extent permitted by law. Therefore, this provision would not impair existing CBAs. No change is warranted.

15. COMMENT: Districts that create a new school to replace a closed and restructured SURR/CSI school must select staff that consists “primarily” of experienced teachers (at least three years) who have been rated Effective/Highly Effective in each of the past three years and are not currently assigned to the school. Several commenters expressed concern and believe that this is in an inappropriate intrusion into collective bargaining.

DEPARTMENT RESPONSE: This provision is consistent with current requirements in Commissioner’s regulations § 100.18 for implementation of a whole school reform model, which currently requires that districts review “the quality of all staff and retain only those who have the ability to be successful in the turnaround effort.” The emergency regulations adopted in June make it clear that this provision shall not abrogate any existing collective bargaining agreement and that any new successor agreement shall authorize such appointments.

16. COMMENT: The committee that is established to develop the corrective action plan in schools with high opt-out rates must include teaching and support staff. However, beginning with the third year of a corrective action plan, only half the staff members can be selected by the bargaining unit. All staff should be selected by the respective bargaining units. Several commenters expressed concern and believe that it is inappropriate for the administration to select employees to serve on such committees.

DEPARTMENT RESPONSE: This provision is applicable only after a school has failed to improve its participation rate following two years of implementing a participation rate improvement plan. The intent is to allow districts to select teachers to participate in development of the next plan who may have new ideas for increasing participation rates. Therefore, the Department does not believe any change is warranted.

17. COMMENT: Several commenters expressed concern surrounding the content and administration of the 3-8 assessments. Although required by ESSA, many commenters expressed dismay over the impact the act of taking the assessments has on children, and the rigidity of a statewide assessment system which does not allow for local control of student assessments.

DEPARTMENT RESPONSE: This comment is outside the scope of the regulations. Therefore, no response is necessary.

Nevertheless, the Department responds that the assessments within the New York State Testing Program are rigorously developed to measure the extent to which students achieve the New York State Learning Standards. New York State teachers certified in teaching the specific content area participate in all important steps in the process of developing the tests including, but not limited to, writing test questions, selecting test questions for each administration of the examinations, rating student responses, and establishing standards for passing and achieving mastery. The final decisions regarding which questions to include on each test are made by teachers of that grade level. This helps to ensure that the tests are developmentally appropriate and reflect what is happening in classrooms across the state. No revisions are necessary.

18. COMMENT: A commenter asked the Department to consider eliminating the requirement that the school comprehensive education plan (SCEP) developed by TSI schools and the district comprehensive improvement plan (DCIP) developed by Target districts be formally approved by the board of education. For TSI schools, under ESSA, the requirement that the SCEP be submitted to NYSED for review and approval has been eliminated. The SCEP will instead be reviewed by the district. Likewise, the proposed regulations do not require that the DCIP be submitted to NYSED for review and approval. Therefore, the need for the SCEP and DCIP to be formally approved by the board of education is unnecessary and an unduly regulatory burden. The benefit derived by NYSED by requiring formal approval of the SCEP and DCIP by the board of education is not apparent and this approval should be eliminated or, at the very least, made optional. The SCEP and DCIP will be developed, reviewed, approved, and monitored locally and, as such, the decision as to whether these plans require board of education approval should similarly be locally made.

DEPARTMENT RESPONSE: Because implementation of DCIPs and SCEPs are best accomplished through the collective effort of all stakeholders and may require a reallocation of resources, the Department believes that it is important that Boards of Education, as the chief policymakers for school districts, review and approve these plans, regardless of whether they must be submitted to the Department.

19. COMMENT: A commenter expressed the position that the regulations give money to private industries in the form of charter schools, which unfairly punishes districts with high percentages of students from low-income families.

DEPARTMENT RESPONSE: The regulations relate to the implementation of New York’s approved ESSA plan, and as such the comment is outside the scope and no response is necessary.

20. COMMENT: Commenter expressed concern related to the exit criteria for schools designated as CSI or TSI. Specifically, commenter opposes conditioning such removal for schools on the absence of a participation rate improvement plan. Commenter expressed concern related to the operational implications of retaining schools in accountability status because of conditions beyond their control and unrelated to student nonperformance. Must such schools continue to implement improvement strategies that are no longer relevant or appropriate? Will school districts be precluded from redistributing resources previously allocated for such schools to others still in need of improvement?

DEPARTMENT RESPONSE: In response to public comment received, the regulations have been revised so that a school implementing a Participation Rate Improvement Plan would be eligible for removal from CSI or TSI status so long as the accountability group(s) for which a plan is required is/are not performing at Level 1 on the Weighed Academic Achievement Index.

21. COMMENT: Commenter expressed the opinion that the design of the participatory budgeting process is more prescriptive and usurps the statutory authority of school boards to make decisions regarding the allocation and distribution of local resources for school purposes. Decisions related to the expenditure of revenues that are raised locally for school purposes rest exclusively within the authority of school boards. These issues can and should be resolved through use of the Plan’s collaborative process.

DEPARTMENT RESPONSE: The Department routinely requires that funds be set aside to implement provisions of school improvement plans. However, the regulations have been amended to allow schools to select alternate forms of promoting parent and student engagement from a list determined by the Commissioner in lieu of setting aside funds to support participatory budgeting.

22. COMMENT: Commenter expressed concern over the provisions that require CSI schools that are required to provide public school choice but are unable to do so to expend additional funds for participatory budgeting. Such process contravenes the statutory authority of school boards over the allocation and distribution of local resources for school purposes. Additionally, without limitations on the expenditure of such additional moneys, implementation of this requirement could result in the diversion of funds away from educational services and supports necessary to improve student achievement outcomes and the school’s underperformance.

DEPARTMENT RESPONSE: The Department routinely requires that funds be set aside to implement provisions of school improvement plans. Participatory Budgeting is intended to be a vehicle to increase communication and understanding about the needs that exist between the school and stakeholders. However, the regulations have been amended to allow schools to select alternate forms of promoting parent and student engagement from a list determined by the Commissioner in lieu of setting aside funds to support participatory budgeting.

23. COMMENT: Commenter expressed concern that the calculation of the amount of funds required for participatory budgeting could rise exponentially. Additionally, there is a lack of limitations on the scope and duration of the financial obligations imposed by this requirement, and that the potential fiscal liability of school districts under such circumstances would certainly have a direct impact on the education of all students in any given school.

DEPARTMENT RESPONSE: The regulations have been clarified to specify that the additional amount to be spent on participatory budgeting is based on the school’s first year allocation for participatory budgeting and does not continue to double or triple each year (for example, if a school spent $2,000 for participatory budgeting in Year 1, then a school that is unable to accommodate any transfer requests must spend $6,000 in Year 2 and $6,000 in Year 3 if the school remains identified for CSI and is unable to offer any transfers).

24. COMMENT: Commenter opposed the provision that requires CSI schools to provide public school choice if they experience a decline in their Core Subject Performance Index if an elementary or middle school, or their Composite Performance Index for two consecutive years (elementary or middle) or a decline in the Composite Performance Index for two consecutive years (high school). Commenter opposes this provision indicating that ESSA no longer requires public school choice, but instead makes school choice an option at the discretion of a local educational agency (school district) at 20 USC 6311(d)(1)(D).

DEPARTMENT RESPONSE: The amendments to ESSA continue to permit public school choice as an intervention for identified schools, provided that there is no state law prohibiting such intervention. Therefore, no change is necessary.

25. COMMENT: Commenter opposes the use of public school choice as an intervention, indicating that such intervention does not always support school improvement or better opportunities for students. Additionally, the commenter expressed concern that those shortcomings can be made worse by the automatic increase of participatory budgeting funds which can be spent in ways not necessarily connected to a school district’s efforts to mitigate the conditions that prevent it from being able to offer public school choice.

DEPARTMENT RESPONSE: The Department routinely requires that funds be set aside to implement provisions of school improvement plans. The New York State ESSA plan has been developed to allow flexibility to identified districts and schools that make progress, while providing additional support and oversight to the districts and schools that do not make gains. However, the Department recognizes that all students deserve access to a quality education, and if a school that had been identified continues to decline for two consecutive years after identification as a CSI school, the Department would be concerned about the LEA’s ability to improve outcomes at the school and would want to provide additional options to the students attending this school. The increase to participatory budgeting expenditures would only occur in schools that do not make gains for two consecutive years AND are unable to provide public school choice. Schools that are able to offer public school choice would not be required to offer an additional amount toward participatory budgeting. In addition, the regulations have been amended to give schools alternate opportunities to promote parent and student engagement in lieu of setting aside of local funds to support participatory budgeting.

26. COMMENT: Commenter expressed concern surrounding the impact of the n-size on schools housing grades K-3, indicating that it seems somewhat unreasonable for smaller K-3 elementary schools to be evaluated within a system that would base student performance outcomes solely on achievement at one grade level (third), with subgroups that might barely reach the minimum “n.” At the very least, these schools are susceptible to significantly fluctuating performance/achievement indices from one year to the next. Further, as there would be no growth index available for these schools nor science assessments administered (in addition to ELA and math), an accountability determination would be made based on particularly limited criteria.

DEPARTMENT RESPONSE: Schools with a grade K-3 configuration will be able to be evaluated based upon the Composite Performance Level indicator, the Academic Progress Indicator, the Chronic Absenteeism Indicator, and the English language proficiency indicator. The only indicator to which these schools would not be subject is student growth. Should a school believe its preliminary designation is incorrect, consistent with the regulation, the district may appeal that designation and provide evidence to support the school receiving a different designation.

27. COMMENT: For students taking Algebra I in Grade 8: The regulations indicate that when a student passes the Algebra I Regents examination in grade 8, this result counts toward middle school accountability only (assuming the grade 8 assessment is not administered to the student as well). As such, should the student elect to improve upon a score at the high school level, a higher score earned on the Algebra I Regents would not contribute to high school accountability – even in a case where a student’s score might increase from 65 to 90, for example. That seems counterintuitive, as it would seem that high school instruction would have made a considerable difference in the student’s performance on the re-take in such a situation.

DEPARTMENT RESPONSE: Consistent with the requirements of ESSA, a student who passes a Regents exam in middle school in lieu of taking the grade level assessment must take a more rigorous exam in high school for the high school to receive accountability credit. Results on the same Regents exam may not be used to give credit to both a middle school and a high school.

28. COMMENT: Multiple commenters expressed concern that the performance index computation awards a Level 2 performance in Algebra the same credit as a Level 2 performance in higher level math courses such as Geometry and Algebra 2. Commenters suggested adjusting/lowering the Level 3 score for Algebra 2 and Geometry to reward students who have met success in those courses.

DEPARTMENT RESPONSE: High schools receive credit for the best performance of a student on a Regents examination in a subject using the performance levels associated with the examination. Therefore, no change is necessary.

29. COMMENT: Commenter advocates for the discontinuance of statewide assessments for 3rd through 5th graders to allow teachers/administration to assess whether a child should be able to go to the next grade. The commenter argued that teachers know how a child learns or approaches solving problems, and statewide tests may not allow for that.

DEPARTMENT RESPONSE: ESSA requires that all students in grades 3-8 be assessed annually in English language arts and mathematics using a common valid and reliable assessment. However, both the Education Law and Commissioner’s regulations prohibit the use of the assessments as the primary basis by which decisions are made to promote or retain students.

30. COMMENT: A commenter expressed concern about graduation rate targets being set at 95%, 96% and 97%, and the impact of those on small schools. When graduating a class of 17 students, just one failure causes the school to miss this target. Schools with such a small graduating class are most likely rural and poor, thus increasing the odds of a student who may not graduate. The commenter suggested that there should be rigor but not when it places more stress on small, rural, poor districts with high percentages of students with learning disabilities.

DEPARTMENT RESPONSE: The commenter is referring to the state’s “end goal.” Schools can achieve the highest performance level (4) for graduation rate by either exceeding the state long-term goal or meeting the state long-term goal and the school’s Measure of Interim Progress, if it is higher than the state long-term goal. Schools do not have to meet the end goal to receive a Level 4 on this indicator. It should also be noted that schools are only accountable for graduation rate cohorts in which there are at least 30 student results or, as a result of a proposed change to the regulations, 15 student results in those situations where a Composite Performance Level has been assigned to a group.

31. COMMENT: A few commenters expressed concern that requiring English Language Learners to sit for the state assessments one-year into their arrival is untenable. Students should sit for the exam when their classroom teacher and ELL teacher determine that they are ready.

DEPARTMENT RESPONSE: The State Education Department sought a waiver from the United States Department of Education to extend the exemption for newly arrived ELLs from participation in the ELA exam. Since this waiver is not approved, the Department must adhere to the requirements of ESSA that these students participate in the ELA examination after they have received on year of instruction.

32. COMMENT: Commenter expressed that ESSA provisions 1111(c)(4)(E)(iii) and 1111 (e)(1)(B)(iii)(XI) make it clear that individual states, not USDOE, determine how opt-outs will factor into the accountability system. Commenter questioned the inclusion of the participation rate plan into the regulation, and suggests that if USDOE conditioned its approval of New York’s ESSA plan on such requirement, then USDOE has exceeded its statutory authority in opposition to Congressional intent.

DEPARTMENT RESPONSE: In a letter received by the Department on August 23, 2018, Mr. Patrick Rooney, Deputy Director of the USDE’s Office of State Support, wrote that with respect to a State's accountability system the ESEA requires an SEA to calculate the Academic Achievement indicator to account for assessment participation rates. According to Mr. Rooney, “ESEA section 1111 (c)(4)(E)(ii) specifically requires that an SEA include in the denominator of this indicator the greater of (1) 95 percent of all students (or 95 percent of students in each subgroup, as the case may be) or (2) the number of students participating in the assessments. Thus, the statute allows for up to five percent of students to not participate in annual reading/language arts and mathematics assessment without it factoring into the calculation of the Academic Achievement indicator.” Mr. Rooney further wrote that: “In addition, each State is required to implement with fidelity the consolidated State plan it submitted and Secretary DeVos approved, including the requirement in section A.4.vii to describe the State's annual measurement of achievement to factor in the requirement for 95 percent student participation in the statewide reading/language arts and mathematics assessments. The New York State Education Department (NYSED) indicated in its consolidated State plan a series of actions it would take if any LEA or school exhibited a consistent pattern of testing fewer than 95 percent of all students and/or fewer than 95 percent of students in a particular subgroup, including that it would require schools that fail to meet the 95 percent participation requirement to submit a self-assessment and participation rate improvement plan to NYSED for the Commissioner's approval no less than three months prior to the next test administration period.” Finally, Mr. Rooney noted that should a state not meet the 95% participation requirement, the Secretary of Education could take actions that include “sending a written request to the SEA that it come into compliance, increasing monitoring, placing a condition on the SEA's Title I, Part A grant award, placing the SEA on high-risk status (2 C.F.R. §§ 200.207 and 3474.10), issuing a cease and desist order (GEPA section 456 (20 U.S.C. § 1234e)), entering into a compliance agreement with the SEA to secure compliance (GEPA 457 (20 U.S.C. § 1234f)), withholding all or a portion of the SEA's Title I, Part A administrative funds (ESEA section 1111(a)(7) (20 U.S.C. § 6311 (a)(7)), and suspending, and then withholding, all or a portion of the State's Title I, Part A programmatic funds (GEPA section 455 (20 U.S.C. § 1234d)).”

Nevertheless, in response to feedback from stakeholders, the Department proposed a number of revisions to the regulations, including eliminating the requirement for a participation rate plan if a school has a Weighted Average Achievement Level of 3 or above; revising the requirement that a school otherwise eligible for removal from TSI or CSI status remain identified if the school is implementing a participation rate improvement plan by limiting this provision to subgroups that perform at Level 1 on the Weighted Average Achievement Indicator; and eliminating the requirement that the Commissioner may require schools that have received a State participation rate audit set aside a portion of the district’s Title I funds to support implementation of the audit’s recommendations.

33. COMMENT: A commenter applauded the inclusion of Chronic Absenteeism as one of the metrics in the current regulations. The commenter suggested several different ways to measure the average number of instructional hours per student per year achieved by the district. This should be computed by adding the number of minutes per day of instruction with a qualified educator, subtracting days for absence or suspension; also subtracting days or half days for superintendents conferences or school cancellations; also subtracting days for state-mandated assessments or practice assessments. Use of this metric could encourage productive policies like better block scheduling and limiting non-educational superintendent conference days, as well as programs to decrease absenteeism and minimize suspensions. A variation would be to weight educational hours by the number of educators in the room (with qualified teachers counting higher than aides) and also inversely by the number of students in the room. This may be a particularly informative measure for the Students with Disabilities subgroup, where levels of support for students in integrated classrooms can vary significantly across programs.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive, but the Department notes that it has adopted the United States Department of Education’s definition for measuring Chronic Absenteeism.

34. COMMENT: A commenter praised the inclusion of Career and Technical Education in components of the Plan.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

35. COMMENT: A commenter praised the balance given to participation rates in the regulations. The commenter also praised the inclusion of credit for 4-6 year graduates as well as GED completers.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

36. COMMENT: A commenter suggested that the testing window is too long and the test format should be shorter to allow schools to more readily use the data.

DEPARTMENT RESPONSE: The comment is outside of the scope of the regulations. Therefore, no response is necessary. However, in 2017, the Board of Regents decided to reduce the number of test sessions on the Grades 3–8 English Language Arts and Mathematics Tests from three sessions to two, effective with the 2018 administration. The length of the testing window is designed to allow sufficient time to administer the tests and provide make-ups for those students who are absent during the designated administration date(s). In addition, the window is necessary to provide flexibility for schools that are closed due to unexpected events, such as power outages, and to provide the multiple-day testing accommodation to students pursuant to an Individualized Education Program (IEP) or 504 plan.

37. COMMENT: A commenter noted several semantic suggestions and/or inconsistencies throughout the plan (e.g., “Composite Performance Achievement Level” versus “Composite Performance Level”).

DEPARTMENT RESPONSE: Technical, non-substantive revisions have been made to the regulations as appropriate to address any inconsistencies in the terms of the regulations.

38. COMMENT: A commenter expressed concern that the instrument used to measure academic progress is biased, and that authentic local tests and portfolio assessments more accurately show student progress.

DEPARTMENT RESPONSE: No change necessary. Hundreds of New York State educators are involved in creating and reviewing questions for the Grades 3-8 ELA and Math Tests, including selecting the questions for the test forms. The assessments feature test questions written by New York State teachers specifically for the annual New York State tests. Teachers from across the State serve on committees to write, evaluate and select questions for the tests to help ensure fairness and freedom from bias.

39. COMMENT: A commenter suggested NYSED revamp the state exams and the way in which they are scored, as well as the Common Core standards on which they are based, to improve their fairness, reliability, validity, and diagnostic utility, and ensure that they are less onerous and stressful for children.

DEPARTMENT RESPONSE: No change necessary. In 2015, New York State (NYS) began a process of review and revision of its current English Language Arts (ELA) and Mathematics Learning Standards. The New York State Next Generation English Language Arts and Mathematics Learning Standards (Revised 2017) were developed through numerous phases of public comment as well as virtual and face-to-face meetings with committees consisting of NYS educators, teachers of English Language Learners/Multilingual Learners and differently abled students, parents, curriculum specialists, school administrators, college professors, and experts in cognitive research. These revised standards reflect the collaborative efforts and expertise among all constituents involved.

The State Education Department is working with District Superintendents, superintendents, the Staff and Curriculum Development Network, and teacher centers to provide guidance on professional development for teachers to implement the new standards. The projected timeline for new grade 3-8 tests measuring the Next Generation Learning Standards is Spring 2021.

Based on extensive feedback, NYSED removed time limits from the tests in 2016. In general, this means that as long as students are working productively, they will have as much time as they need to complete each test session, within the confines of the regular school day.

In 2017, the Board of Regents decided to reduce the number of test sessions on the Grades 3–8 English Language Arts and Mathematics Tests from three sessions to two, effective with the 2018 administration. Fewer test sessions lessen test fatigue for students and better enable them to demonstrate what they know and are able to do.

40. COMMENT: The plan states that “a district or charter school may add any other appropriate information” to the New York State report card. We request that this item be amended to provide examples of the types of information that districts may add to their State Report Card. Within the state ESSA plan (page 44), the NY Board of Regents has committed to incorporating additional measures of school quality and student success into the state’s accountability system over time, and to regularly publishing a set of indicators (not part of the accountability system) that highlight school conditions and student opportunities to learn. These indicators will provide parents and others with information that creates a more comprehensive picture of a school’s efforts for continual improvement around attendance and supporting the whole child. We particularly support the indicators focused on school climate and safety, access to specific learning opportunities including physical education, and teacher turnover, absence, and working conditions, and recommend that these items be highlighted within the regulations.

DEPARTMENT RESPONSE: The regulation has been revised to make clear that districts may include additional information on the report card. The revised regulation includes examples that districts may include on the report card, including indicators of school climate and safety; access to specific learning opportunities including physical education; and teacher turnover, absence, and working conditions.

41. COMMENT: We commend NYSED’s use of the diagnostic tool for school and district effectiveness (DTSDE) as the primary tool for comprehensive needs assessments. The DTSDE includes data collection on Student Social and Emotional Developmental Health and Family and Consumer Engagement, but lacks data collection around indicators of physical health and the health and wellness environment within the school. We therefore request that this item be amended to include the following types of data in addition to the DTSDE: Data from the New York State Physical Education Profile; information about the health status of students such as the number of students attending school with asthma, diabetes, or other chronic health conditions (this data is available in student health information cards and from local public health agencies); school climate and safety, such as through the U.S. Department of Education’s School Climate Survey; school discipline policies; school health policies and practices using the Healthier Generation’s Healthy Schools Program assessment; staffing patterns, such as the ratio of qualified health professionals to students, including but not limited to school nurses, social workers, and school counselors, using district human resources data; and free-and reduced-priced percentages, participation in community eligibility provision, and participation in school lunch and breakfast programs (as compared to eligibility).

DEPARTMENT RESPONSE: The Department recognizes the importance of social-emotional learning, school climate, and student physical health and wellness, and anticipates that each of these will be reviewed and analyzed as part of the multifaceted Needs Assessment process. This process will include a review of specific data related to many of the indicators suggested in the commenter’s letter, including school climate data, school safety and discipline data, and the ratio of qualified health professionals to students. The Department will also consider the U.S. Department of Education’s School Climate Survey to fulfil the survey requirement for students, parents, and teachers when LEAs supplement the School Climate Survey with additional questions on instruction and leadership identified by the Department. In addition to incorporating these various indicators into the Needs Assessment process, the on-site Needs Assessment will include a component that reviews how the school has analyzed and addressed these data and how the school has developed systems and structures to support student’s health and well-being.

42. COMMENT: Commenter recommends that the annual surveys of parents, staff, and students conducted by CSI and TSI schools, include parent (and those in parental relations to the student), staff, and student perceptions of the “Physical Health and Wellness Environment” within the school. A positive health and wellness environment contributes to school climate, social emotional health, and family engagement, as well as to student attendance and academic outcomes.

DEPARTMENT RESPONSE: The Department agrees that parent, staff, and student perceptions of the physical health and wellness environment are important indicators for schools to consider when identifying a school’s needs. The Department organized its definition of surveys around the tenets of the Diagnostic Tool for School and District Effectiveness to be consistent with other components of the school improvement process, including the needs assessment and the School Comprehensive Educational Plan. The Department will provide guidance to ensure that schools and Districts consider health and wellness as essential components within these Tenets.

43. COMMENT: Definition of Chronic Absenteeism—Elementary/Middle Level (pages 41) (1) states that, “The Commissioner shall first compute the school’s Chronic Absenteeism Rate, which means the number of students enrolled during the school year in a school for a minimum of ten instructional days, and in attendance at least one of those days who were absent (excused or unexcused) for at least 10 percent of enrolled instructional days divided by the total number of students enrolled during the school year, expressed as a percentage. Suspensions are not counted as excused or unexcused absences, as suspended students are required to be provided with instruction while they are suspended...” A couple of commenters equested that this item be amended such that absences due to suspensions be included in the computation of the Chronic Absenteeism Rate.

DEPARTMENT RESPONSE: The Department has adopted the United States Department of Education’s definition for measuring Chronic Absenteeism, which states that a student absence is defined as “not participating in instruction or instruction-related activities at an approved off-grounds location.” In New York State, because suspended students must be provided with instruction, they are not absent pursuant to the United States Department of Education definition.

44. COMMENT: Several commenters requested that the participation of parents (or those in parental relation to the student) and teachers be required for the needs assessments and plan development process for schools that are in their third year of CSI identification.

DEPARTMENT RESPONSE: Parents and students will be included in the Needs Assessment process each year a school is identified. In addition, as outlined in the regulations, parents and secondary students will be involved in the development of the school improvement plan each year. The proposed regulations have been revised to clarify that the Department will reject CSI school comprehensive education plans that do not demonstrate meaningful participation from parents and secondary students.

45. COMMENT: A commenter applauded the inclusion of schools with conditions that threaten the health or safety of students in the preliminary registration review.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

46. COMMENT: Several commenters expressed that districts should decide the process for increasing test participation rates.

DEPARTMENT RESPONSE: The regulations provide broad flexibility to schools and districts to develop strategies for improving participation rates.

47. COMMENT: Commenter supports the proposed regulation and suggests that for accountability purposes schools with high opt-out rates should either be treated the same as underperforming schools or just get rid of testing altogether. The latter is not a realistic option. If opting-out is considered a valid pathway, then underperforming students will be pressured to opt-out and no accurate snapshot of a school can be had. Commenter further encouraged the improvement of the assessment content and administration.

DEPARTMENT RESPONSE: The interaction among the Weighted Average Achievement measure, Core Subject Performance measure and Academic Progress Indicator are designed to meet the participation rate requirements of ESSA, ensure that schools are identified that have academic issues rather than just participation rate issues, and incentivize increased participation in state assessments. While “curation” of test takers could, in theory, increase a subgroup’s Core Subject Performance Index, such action would also decrease a school’s Weighted Average Achievement Index, with potential negative implications for a subgroup’s Composite Performance Level and Academic Progress Level.

48. COMMENT: Commenter supports appropriate assessments and suggests that tests should be part of a school’s final exam week and that schools should be allowed to safely grade their own tests and have them count as a student’s score for part of the year.

DEPARTMENT RESPONSE: The comment is outside the scope of the regulation; therefore, no response is necessary. Nevertheless, the New York State Grades 3-8 English Language Arts and Mathematics tests were not designed to be “final exams” that measure what a student has been taught by their teacher from September to June of a given academic year. The tests are designed to measure how well students are mastering the learning standards that guide classroom instruction and help to ensure that students are on track to graduate from high school with the critical thinking, problem solving, and reasoning skills needed for success in college and the workplace. The tests also show how schools and districts are progressing with the learning standards.

Arranging for the scoring of the English Language Arts and Mathematics Tests is the responsibility of each school or school district. Schools have several scoring model options to choose from, including but not limited to, regional scoring, three or more schools within a district, one school if doing paper-based testing, and private contractor. Regardless of the scoring model being used, a minimum of three scorers is necessary to score each student’s test. However, to comply with a State requirement, none of the scorers assigned to score a student’s test responses may be that of the student’s teacher.

49. COMMENT: The commenter applauds the inclusion of a College, Career, and Civic Readiness Index which recognizes civics education as a critical component of ensuring students receive a well-rounded education. While the CCCRI establishes a baseline for holding schools accountable for ensuring students’ civic readiness, the proposed regulations do not establish a civic readiness standard. Commenter recommends that the State Education Department adopt regulations to define civic readiness.

DEPARTMENT RESPONSE: Civic Readiness is embedded within the Social Studies Frameworks. The Department at the direction of the Board of Regents will be convening stakeholders to develop resources and tools to assist schools in improving instruction related to civics and civic engagement. This group of stakeholders will be asked to make a recommendation to the Board of Regents regarding whether Commissioner’s regulations should be amended to include a specific definition of civic readiness.

50. COMMENT: Commenter was excited to learn recently of the Board’s plan to create a “civics seal.” Many states, including New York, already have a seal of biliteracy; however, students in advanced courses are better prepared to attain this seal based on the current point system. Commenter urges the Board to establish equitable standards when deciding the prerequisites to earn a civics seal in order to incentivize more students rather than widen the civic engagement gap. Commenter believes that the civics seal prerequisites should, at minimum, include two capstone projects to be sequenced in eighth grade social studies and the existing Participation in Government course, which includes these Action Civics elements: community examination, issue identification, research, strategizing, taking action, and reflection.

DEPARTMENT RESPONSE: The Department at the direction of the Board of Regents will be convening stakeholders to develop resources and tools to assist schools in improving instruction related to civics and civic engagement as well as examine policies related to social studies education. One specific charge to this group of stakeholders will be to make recommends regarding creation of a seal of Civic Readiness and potential requirements for a student earning such a seal. Materials related to this initiative will be posted for public comment and feedback. The recommendation of the commenter will be shared with the group.

51. COMMENT: In tandem with the civics seal, the state must allocate funding to districts to provide teachers with the necessary professional development that aligns to implementing these changes. Commenter recommends that the majority of those funds be allocated towards Title I schools.

DEPARTMENT RESPONSE: The Department will provide appropriate professional development in regard to any changes in civics standards or requirements. Districts will have flexibility to decide what funds to use to support any necessary professional development in this area.

52. COMMENT: A commenter applauded NYSED for developing an ESSA plan that recognizes the effect of school environment on student academic performance and supports efforts to improve the climate of all schools.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

53. COMMENT: Several commenters appreciated the inclusive and transparent process that the Board of Regents and NYSED have worked to maintain while creating the ESSA state plan. In particular, commenters point to the importance of preserving the provisions regarding test participation, which are an essential equity protection for historically under-served groups of students whose needs are too often ignored in our education system. Throughout the ESSA process, NYSED and the Board of Regents worked to find common ground among opposing views on this issue. For some stakeholders, even these reasonable compromises will never be enough. There are those who have asked the Department to violate federal law and ignore test participation altogether. Others have called for provisions that would effectively enable schools to systemically exclude certain groups of students from state assessments. These commenters state that they stand with civil rights, education, parent, and business community partners in urging the Department to maintain the current provisions.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

54. COMMENT: Several commenters requested that § 100.2(m)(4) be amended to specify that NYSED will produce, and school districts shall make available, the report card in at least the 10 most frequently used languages statewide. In the case of any school districts where local laws, regulations, and policies mandate translation into more than 10 languages, the regulation should specify that districts must follow local policies and/or regulations to make the report card available in additional languages.

DEPARTMENT RESPONSE: The draft regulations have been revised to require that to the extent practicable, the district or charter school shall provide the reports and additional information in a language that parents can understand for the most frequently used languages in the district. The Department anticipates issuing guidance regarding how districts can meet these provisions and will work toward obtaining additional resources to support them in doing so.

55. COMMENT: Several commenters requested that § 100.21(h) be amended such that notification of CSI or TSI designation be made in the 10 most frequently used languages statewide. In addition to making this requirement clear (including, but not limited to, by removing “when appropriate” from paragraph (1)), the commenters request that the requirement for notification in the 10 most frequently used languages statewide be added to paragraph (2).

DEPARTMENT RESPONSE: The draft regulations have been revised to require that to the extent practicable, the district or charter school shall provide the reports and additional information in a language that parents can understand for the most frequently used languages in the district. The Department anticipates issuing guidance regarding how districts can implement these provisions and will work toward obtaining additional resources to support them in doing so.

56. COMMENT: Several commenters noted that as allowed by ESSA, the proposed regulation at § 100.21(b)(1)(xi) includes former students with disabilities in the students with disabilities subgroup and former English language learners (ELLs) in the ELL subgroup for the purpose of accountability determinations. While they do not seek to change the provision, they have requested that the regulation be amended to provide for disaggregated reporting of accountability data for current versus former members of these subgroups.

DEPARTMENT RESPONSE: No change necessary. The numbers of ELLs, former ELLs, students with disabilities, and former students with disabilities separately are small in many schools and districts. As such, in order to protect the privacy of students, the Department would have to suppress outcomes for these subgroups, limiting the amount of data the Department could make available. These suppression rules can have the unintended consequence of surpressing information for other groups of students as well. However, the Department agrees that it would be helpful to have this disaggregated reporting in the future and the Department will work with stakeholders to determine how this might be accomplished in future years.

57. COMMENT: Several commenters expressed that § 100.21(b)(1)(xi) should ensure that schools develop an action plan to address the academic needs of current members of these subgroups if their achievement, without factoring in former subgroup members, would have resulted in the school receiving a “1” for such subgroup.

DEPARTMENT RESPONSE: NYSED understands why current members of a subgroup might benefit from an action plan to address their specific academic needs when their scores, without factoring in former members of the subgroup, would have resulted in a school receiving a “1” for that subgroup. However, for students with disabilities, there are existing regulations that require the individual identification, servicing, and progress monitoring of a student’s academic achievement and functional performance needs. Any additional plans to address the achievement of this subgroup would be more appropriately addressed via guidance and technical assistance.

58. COMMENT: Several commenters stated that New York’s approved ESSA plan provides that out-of-school suspensions will become an accountability indicator “beginning with the 2018-19 school year results,” which the commenters strongly support. Commenters request that this language be incorporated in the regulations, as well, including by adding it to the definition of “accountability measure” (and noting the school year for which the addition goes into effect) and by replacing “within a timeframe prescribed by the Commissioner” in the “out-of-school suspension rate” definition with a date certain that is consistent with the state’s ESSA plan. Conforming changes should be made throughout the regulation where accountability indicators are listed.

DEPARTMENT RESPONSE: The regulations have been revised to clarify thatthe out-of-school suspension levels in 2017-18 will be used as the baseline and using the 2018-19 school year results, the Commissioner shall report for each accountability group for which a school or district is accountable a Level from 1-4. For 2019-20 school year results, districts will be required to address in their consolidated applications any subgroup in a school or in the district that performs at Level 1 on the out-of-school suspension indicator. Beginning with 2020-21 school year results, this indicator will be incorporated into the methodology for determining the accountability status of schools and districts.

59. COMMENT: Several commenters noted that TSI schools could be under-performing for one or more subgroups of students. New York’s ESSA plan already constrains the definition of “additional targeted support” schools to a narrow set of extremely low-performing schools. At § 100.21(b)(3)(i)(b), the phrase “for the performance of the same accountability subgroup(s)” should be removed so that any school that has been designated for additional targeted support and has been in TSI for three consecutive school years is subsequently identified for CSI in order to provide escalated support and intervention. This change would ensure that schools that are seriously under-performing for historically under-served groups of students will receive the urgent attention and support that they need.

DEPARTMENT RESPONSE: The Department believes there is a significant difference between a school in which the same group meets the criteria for identification year after year and a school in which different subgroups of students might cause a school over time to be identified as TSI. While the Department believes it is appropriate for the Department to provide additional support to the former group of schools, the Department will monitor the performance of TSI schools to determine if more robust intervention in schools that are identified for different groups of students over time is warranted.

60. COMMENT: Several commenters commended NYSED for identifying Target Districts as part of the state’s ESSA plan and regulations. This approach will help ensure that school districts receive the support that they need to help under-performing school and can help identify district-level capacity challenges that would impede the school improvement process. Focusing on district-level as well as school- level improvement is an important hallmark of an effective strategy to support increased student achievement.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

61. COMMENT: Several commenters requested that NYSED provide additional opportunities for public input on the definition of “Recognition schools,” either by specifying the criteria in the regulation or by committing to seeking public input in the future.

DEPARTMENT RESPONSE: The Department plans to seek stakeholder feedback on the proposed methodology for identification of recognition schools.

62. COMMENT: Several commenters applauded New York’s approved ESSA plan for the appropriately strong language about the importance of parent involvement in the school improvement process, specifying that “the State will reject plans from CSI schools that do not provide adequate evidence of involvement from parents and families.” They requested that the regulation conform to the state plan in this regard. Two specific changes to the proposed regulation were asked for: 1) Schools identified as CSI will submit their plans to the Department for approval, which shall [may] reject any plan that does not adhere to the directions provided by the Department and [and/or] provide sufficient evidence in such format as prescribed by the Commissioner that parents and pedagogical staff and in high schools, students, meaningfully participated in the development of the plan;” and 2) requested strong and specific provisions to ensure that parents’ voices are heard throughout the improvement process. This should include, but not be limited to, a provision consistent with the ESEA Title I requirement that “if the LEA’s plan is not satisfactory to the parents of participating children, the LEA must submit any parent comments, along with the LEA’s plan, to the SEA.”

DEPARTMENT RESPONSE: The regulations have been modified to indicate that the Department shall reject any plan that does not adhere to the directions provided by the Department and does not contain sufficient evidence of parent, staff, and in secondary schools, student participation.

Parents will be able to submit comments regarding any concerns they have with the plan submitted. This provision will be handled through guidance to LEAs and to modifications to the SCEP and DCIP template, rather than through regulation.

63. COMMENT: Several commenters commended NYSED for including student input in the creation of high school improvement plans and encourage NYSED to maintain this provision.

DEPARTMENT RESPONSE: No change necessary as the comments are supportive of the regulations.

64. COMMENT: Several commenters requested § 100.21(i)(2)(i)(b)(5) (development of comprehensive education plans for TSI schools) be amended to specify that the parents be parents of students in the subgroup(s) for which the school was identified for TSI.

DEPARTMENT RESPONSE: The Department is supportive of the suggestion that the parents involved in the development of the SCEP at a TSI school include representatives from the subgroup(s) for which the school has been identified. The Department is also sensitive to the privacy rights of individuals, and as a result, the Department would prefer to issue guidance to LEAs identifying the importance of including parent representatives of identified subgroups in the development of TSI SCEPs rather than mandating their inclusion through regulation.

65. COMMENT: Several commenters requested that the regulation specify that the notification to parents of a school’s identification for TSI, CSI, and relevant school improvement status changes must also include information (in multiple languages) about how parents can participate in the school improvement process.

DEPARTMENT RESPONSE: See responses to Comments #54 and #55. NYSED agrees that information about school improvement status, school report cards and a school’s TSI or CSI categorization must, to the extent practicable, be made available in the home/native languages spoken most frequently by a district’s ELL students. The draft regulations have been revised to require that to the extent practicable, such information be provided in a language that parents can understand for the most frequently used languages in the district. The Department anticipates issuing guidance regarding how districts can implement these provisions and will work toward obtaining additional resources to support them in doing so. In addition, the Department will be working towards developing additional resources to districts to support them in communicating to parents about school improvement status, school report cards, and the school’s CSI or TSI status.

66. COMMENT: Several commenters expressed concern that the proposed criteria for demonstrating progress are far too weak to signify meaningful school improvement. Under the definition at § 100.21(b)(4)(xiv), any increase in the school’s performance index – no matter how small – would result in the school making sufficient progress. Likewise, demonstrating growth at the state average would result in the school making sufficient progress, no matter how far behind its students already are. Commenters requested more ambitious targets tied to demonstrating that the school is on track to meet its accountability measures.

DEPARTMENT RESPONSE: The Annual Achievement Progression Target is not intended to be used as a means of determining whether or not the school is making sufficient progress toward being removed from accountability status. Instead, the purpose of the Annual Achievement Progression Target is to identify the CSI schools that have not made gains from the previous year and, therefore, should receive additional support and oversight from the Department. The Annual Achievement Progression Target will enable the Department to determine the schools that require additional support.

67. COMMENT: Several commenters expressed concern about the use of the Core Subject Performance Index at § 100.21(b)(4)(xiv) to determine the progress of an identified school. Based on the definition, it appears that a school could meet its target simply by encouraging low-performing students to opt-out of the state assessment. Commenters requested that the factors used to calculate the Weighted Average Achievement Index be used instead to make this determination.

DEPARTMENT RESPONSE: The purpose of the Annual Achievement Progression Target is to identify the CSI schools that have not made gains from the previous year and, therefore, should receive additional support and oversight from the Department. The Department originally selected the Core Subject Performance Index as its preferred measure of determining if the school has made gains rather than the Weighted Average Achievement Index, since the Core Subject Performance Index is computed using solely the results of the students who took the exam. Based on the commenters’ concern that this could work at cross purposes with initiatives to increase participation rates, the regulations have been modified to require that a school increase both its Core Subject Performance Index and its Weighted Average Achievement Index in order to demonstrate progress through this means.

68. COMMENT: Commenter supports the methodology used to calculate the Core Subject Performance Index, as defined in the regulation and further explained by NYSED at the June meeting of the Board of Regents, which means that schools that have low test participation (high opt-out) cannot be identified for improvement unless they also have very low achievement for the students who do take the assessments. This methodology appears consistent with federal law and, in the short-term, appears to strike a reasonable balance between the interests described above.

DEPARTMENT RESPONSE: No change necessary as the comments are supportive of the regulations.

69. COMMENT: Several commenters requested clarification on the impact of provision § 100.21(f)(1)(iii)(b), which requires that in order to be identified for additional targeted support and improvement (ATSI) a school must have been identified as a TSI school in the current and prior school years and why this provision is necessary. The commenters are interested in the specific circumstances for which the provision seeks to avoid identifying schools for ATSI. If the language would prevent extremely low-achieving schools for a particular subgroup from receiving additional attention via identification for ATSI, commenters recommend this provision be removed.

DEPARTMENT RESPONSE: This provision ensures that a school would not be identified for additional targeted support and improvement until it has been a Targeted Support and Improvement School for at least one year.

70. COMMENT: Several commenters requested that treatment of dual enrollment courses align with the language of the state’s approved ESSA plan, which states that: “New York State’s College, Career, and Civic Readiness Index will give credit to schools for students who pass high school courses and additional credit for students who achieve specified scores on nationally recognized exams associated with these courses or who earn college credit for participation in dual enrollment courses.” To effectuate this change, dual enrollment courses should be treated more consistently with AP and IB courses in the calculation of the College, Career & Civic Readiness accountability indicator. To that end, the regulation should specify that as soon as data collection permits, student participation in the course should be included at the 1.5 level and success in the course should be included at the 2.0 level, e.g.: Regents Diploma and high school credit earned through participation in dual enrollment (in high school and accredited college) course – 1.5; and Regents Diploma and college credit earned through participation in dual enrollment (in high school and accredited college) course – 2.0.

DEPARTMENT RESPONSE: Once such data is available, the Department will consider whether the weighting for the College, Career, and Civic Readiness indicator should be adjusted.

71. COMMENT: Several commenters commended NYSED for including § 100.21(i)(1)(i)(c) in the ESSA plan and regulations, which states that, “In the first school year in which the school is identified as a CSI school, the school must… limit incoming teachers transfers to teachers rated effective or highly effective pursuant to Education Law § 3012-d by a school district in the previous school year, subject to collective bargaining as required under article 14 of the Civil Service Law, and require that any successor collective bargaining agreement authorize such transfers unless otherwise prohibited by law…”

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

72. COMMENT: Several commenters requested several specific changes to § 100.21(i)(1)(iii)(g), the provisions for public school choice: Rather than being available only for students in CSI schools with declining achievement on the performance index, public school choice should be available for students in all CSI schools. The commenters note that CSI schools are already the bottom-performing schools in the state.

DEPARTMENT RESPONSE: Rather than mandate Public School Choice upon identification, as had been required under No Child Left Behind, the proposed regulations give schools the opportunity to improve first, and if improvements are not realized for two consecutive years, then require schools to offer Public School Choice. The proposed regulations make Public School Choice an option, but not a requirement, for any district with a CSI school that believes that Public School Choice will support stronger outcomes for students and for CSI schools.

73. COMMENT: Several commenters requested several specific changes to § 100.21(i)(1)(iii)(g), the provisions for public school choice. If there are no schools in good standing or TSI schools serving the grade levels served by the CSI school that is required to provide public school choice, the school district should be required to create additional seats in schools in good standing or open additional schools in good standing.

DEPARTMENT RESPONSE: The Commissioner can intervene with schools struggling to make gains, regardless of their ability to offer Public School Choice, to ensure that the students have access to a quality education, by designating the school as a School Under Registration Review (SURR), or if the school is in the Receivership program, appointing an Independent Receiver to manage and operate the school. If a school fails to make demonstrable improvement while subject to Independent Receivership, then the Commissioner may direct that the school receivership be terminated and the district submit a plan to take one of the following actions: place the school under management of the State University of New York or the City University of New York, or phase out and close the school. While converting the school to a charter school was previously included in this list of actions, the Department has revised the regulations to remove this action.

74. COMMENT: Several commenters requested several specific changes to § 100.21(i)(1)(iii)(g), the provisions for public school choice. The commenters do not believe that Participatory Budgeting is, or should be described as, an alternative to public school choice. Both concepts are valuable and should be advanced independently.

DEPARTMENT RESPONSE: The Department is interested in promoting multiple ways to promote students and parent voice. Based on comments received on the proposed regulations, the Department has revised the proposed regulations to provide greater flexibility to districts in how they promote greater parental and student involvement in engagement. Districts may now choose to take other actions to promote parent and student engagement in lieu of implementing participatory budgeting.

75. COMMENT: Several commenters noted that if schools are systemically excluding certain groups of students from state assessments, there must be urgency and action to protect the ability of all students to participate in state assessments and have the students’ used to make accountability determinations. The draft regulation provides extensive opportunities for schools to improve their test participation rates. This includes – over multiple years – a self-assessment, help from the school district, and help from a BOCES. Commenters commend the Department for this reasonable and balanced approach to supporting schools in improving their participation rates. Commenters suggested that If anything is to improve, they believe the process may be too elongated, and would benefit from combining the district and BOCES steps.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

76. COMMENT: Several commenters commended NYSED for including provision § 100.21(i)(5)(vi), which requires that for the lowest 10 percent of schools within the State for participation rate as determined by the Commissioner, the district must submit a participation rate plan for approval by the Commissioner no later than 60 days following notification to the district that such plan is required. This will ensure that schools with the lowest participation rates in the state take immediate steps to improve test participation in partnership with parents and will enable NYSED to support these schools in their efforts.

DEPARTMENT RESPONSE: No change necessary as the comment is supportive of the regulations.

77. COMMENT: Several commenters expressed concern with another commenter’s public letter regarding the draft regulations.

DEPARTMENT RESPONSE: No response is necessary to these comments because they are responses to other comments the Department received on the regulation and not comments on the regulations themselves. Moreover, these comments are generally supportive of the regulation.

78. COMMENT: A commenter requested a new subdivision (n) of section 100.18 of the Regulations of the Commissioner of Education be added for the purpose of expanding the data included in the annual report by the Board of Regents to the Governor and the Legislature in accordance with Education Law § 215-a providing easy public access to such report. Commenter suggested the following language: (n) All of the items required to be included in an annual report by the regents to the governor and the legislature pursuant to section 215-a of the Education Law shall be set forth in a single, easily accessible portal the department’s website, and in an easy to comprehend format, all of the information required by section 215-a, and, in addition, class sizes, indicators of student achievement in social studies; college, career and civic readiness rates; expenditures per pupil for services for English language learners; and numbers of students eligible for, but not receiving, specific courses and services mandated by federal or state statutes and regulations, including, but not limited to, academic intervention services, response to intervention services, special education and related services, bilingual or English as a second language instruction, guidance services, mandated courses or sequences of courses, pathways to graduation, physical education, health services, adequate science laboratories, and reasonable access to up-to-date textbooks, computers, software and other instructional materials. To the extent practicable, all such information shall be displayed on a statewide, individual-school-district and individual-school basis, and by racial/ethnic group, gender, economic status, English-language-learner status, and migrant status.

DEPARTMENT RESPONSE: Information necessary to meet the requirements of Education Law section 215-a can be accessed through the Department’s “Chapter 655” Webpage. New York State Report Cards will include data required by ESSA at the statewide level; by individual public and charter school; by district; and by racial/ethnic groups, gender, economic status, ELL status, and migrant status. College, career, and civic readiness rates as well as student achievement in social studies (as part of the Composite Performance Measure) will be included in the accountability section of the report cards. Class size will be included in a Student and Educator Report on data.nysed.gov. Expenditures per pupil per ESSA will be included in report cards beginning in 2018-19; however, ESSA does not require that SEAs report expenditures per pupil for English language learners. The small number of ELLs in many schools would result in significant data suppressions. ESSA also does not require SEAs to report numbers of students eligible for, but not receiving, specific courses and services mandated by federal or state statutes and regulations, including, but not limited to, academic intervention services, response to intervention services, special education and related services, bilingual or English as a second language instruction, guidance services, mandated courses or sequences of courses, pathways to graduation, physical education, health services, adequate science laboratories, and reasonable access to up-to-date textbooks, computers, software and other instructional materials. The Department will consider whether any of this information should be collected and reported publicly, bearing in mind the potential benefit of reporting such data balanced by the additional resources that districts would need to allocate to reliably collect such information.

79. COMMENT: A commenter expressed concern that the provision of a needs assessment and support report, focused on one particular administrative title, is too narrowly focused, duplicative with other improvement planning processes, and susceptible to creating unintended consequences. The commenter recommended the principal needs assessment and support report be deleted and any needed support for the entire administrative team should be included in the Comprehensive Improvement Plan.

DEPARTMENT RESPONSE: The purpose of the Principal Support Report and Principal Needs Assessment has evolved so that both documents no longer involve an evaluation of the school leader and now focus on ensuring that the district is providing sufficient supports to principals and a school’s leadership team. Based on comments received, the Department has modified the regulations so that this report addresses supports provided to the entire school leadership team. For the Principal Support Report, districts will identify the supports they are providing to the school leadership team of a school that does not make gains after one year. If the school does not make gains for two consecutive years, then as part of the District Needs Assessment, the district will need to reflect as to why the supports listed in the Principal Support Report were not enough to result in improved outcomes. The intent of these provisions is to ensure that school leaders receive the supports they need from their district to succeed. There is no component of either of these reports that involves an evaluation of the principal or any other title.

80. COMMENT: The regulations indicate that a continuously enrolled student is a “student enrolled on BEDS day and enrolled during the test administration period for the subject tested...” (8 NYCRR § I00.2l(b)(IXix)). As written, a student could be enrolled on BEDS day, leave the school, and re-enroll during the testing period and be counted as continuously enrolled. A commenter suggested the definition of a continuously enrolled student should be clarified to indicate that continuous enrollment is based on students enrolled on BEDS day and each day through the test administration period.

DEPARTMENT RESPONSE: No change required. The language included in the proposed regulations accurately reflects how the Department has for many years defined and collected information regarding continuously enrolled students. Revising this definition would require significant preparation and revision to data collection procedures. The Department will consult with key stakeholders regarding the advisability of making such a revision in the future to the definition of continuous enrollment.

81. COMMENT: A commenter expressed concern that measurements, such as the calculation for chronic absenteeism, can lead to unintended consequences. A small school would have a higher probability of being classified as low-performing, as even a few chronically absent students would impact results (e.g., one student in a building of 200 students equals.5%. If one student is absent one day, that student's absence could mean the difference between Level 3 or Levels 1 or 2). Commenter recommends that chronic absenteeism be calculated through a tiered approach based on school building size so as to accommodate small districts and schools.

DEPARTMENT RESPONSE: There is no measurement error associated with the chronic absenteeism indicator. (That is, in a particular year it is known exactly what percent of students in an accountability group in a school have been reported as meeting the definition of having been chronically absent.) However, in those instances where the attendance pattern of a small group of students within an accountability group produces anomalous results, the school may appeal the group’s accountability designation.

82. COMMENT: According to 8 NYCRR § 100.21(b)(4)(xi), parent, staff, and student surveys must be conducted in schools identified as Comprehensive Support and Improvement and Targeted Support and Improvement schools. Student surveys in grades K-3 will be very challenging. Student surveys should be required for students beginning in grade 4.

DEPARTMENT RESPONSE: The regulations do not stipulate which grade levels must be included as part of the student survey requirement. The Department will issue guidance to clarify that the survey selected by a district is to be administered to students in the grade levels for which the survey has been designed.

83. COMMENT: A provision of the regulations currently reads: “(xv) Accountability level means a level from 1 to 4 derived when scores earned on Regents examinations and Regents alternative examinations as defined in this subdivision are converted to four accountability levels based on predetermined accountability cut scores established by the Commissioner.” There are now five (5) scoring levels for Regents Exams. Are these references to 1-4 levels a typo?

DEPARTMENT RESPONSE: This is not a typo. Although English language arts and mathematics Regents exam results are reported to individual students using five levels, these are converted to four “accountability levels” by combining Regents exam Levels 1 and 2 into a single level for institutional accountability purposes.

84. COMMENT: A commenter recommends modifying the definition of suspension rate to measure the total number of instructional days lost due to suspensions that exclude students from their regular program and classroom regardless of whether the student remains in the same school or is sent to another one. “Instructional Days Lost” should include any time a student is suspended from school and does not receive regularly programmed instruction in their regular classroom. The commenter also recommends counting any suspension that causes a student to miss more than 50 percent of their regularly programmed instruction in their regular classroom in a day as a full-day suspension for purposes of calculating Lost Instruction Time to reflect the significant amount of classroom instruction missed that day. To account for schools of different sizes, the measure should be expressed as a “per 100 students” metric, using BEDS Day Enrollment numbers. Such an indicator would be responsive to the various suspension scenarios at different schools. It would also be linked to a metric - instructional time - closely related to student outcomes. Furthermore, the measure would better capture longer and more frequent suspensions (which Black students and students with disabilities receive disproportionately), neither of which is captured sufficiently by the current definition. This measure would more accurately capture high rates of student suspensions in schools across the State.

DEPARTMENT RESPONSE: The Department engaged in extensive outreach to solicit input from educators, policymakers, stakeholders and the public regarding the indicators to be included in the ESSA accountability system. Based on this feedback, the Department determined that the most important metric in terms of student suspension is the percentage of students in an accountability group who are suspended out-of-school one or more times during the school year. The Department believes that, for example, the suspension of one student for 50 days of instruction is very different than the suspension of 10 students from five days of instruction.

85. COMMENT: A commenter expressed concern that the proposed calculation of chronic absenteeism for elementary schools does not include the attendance of kindergarten students. The commenter recommends that the Regents amend § 100.21(f)(1) to state that, at the elementary/middle school level, chronic absenteeism is calculated for grades Kindergarten-8 and ungraded age-equivalent students.

DEPARTMENT RESPONSE: Because attendance in kindergarten is not compulsory, the Department believes it is inappropriate to include kindergarteners in the computation of chronic absenteeism.

86. COMMENT: A commenter expressed concern that the State is proposing to calculate chronic absenteeism only at the school level. Such calculations may mask the chronic absenteeism of highly mobile students, such as students in temporary housing, who may transfer schools multiple times over the course of a school year. The commenter recommends that the Regents amend § 100.21(f) to add a district-level calculation of chronic absenteeism and ensure that the district measure of interim progress accounts for the district-level calculation of chronic absenteeism.

DEPARTMENT RESPONSE: Chronic Absenteeism will also be calculated at the District Level and be used to make Target District determinations. Therefore, no change is necessary.

87. COMMENT: In order to ensure that families understand critical information about how their children’s school is performing, a commenter requests that the Department amend regulatory language pertaining to report cards and required notices to specify that the Department will produce and school districts will make available the school report card and CSI or TSI designation notices in at least the 10 most frequently used language statewide. However, if the top 10 statewide languages do not include the top 5 local languages of the district, the commenter recommends that report cards and notices be translated into those top 5 languages, as well.

DEPARTMENT RESPONSE: The draft regulations have been revised to require that to the extent practicable, the district or charter school shall provide the reports and additional information in a language that parents can understand in the most frequently used languages in the district. The Department will be issuing guidance regarding how districts can implement these provisions and will work toward obtaining additional resources to support them in doing so. The proposed regulations allow districts and charter schools the flexibility to focus on the languages of the parents/guardians of the students they serve.

88. COMMENT: A commenter expressed concern that the draft regulations move away from previous agreements with respect to performance calculations. It was the commenter’s understanding the higher performance calculation (i.e., the higher of a school’s Weighted Average Achievement Level or Core Subject Performance Level) would be used to make accountability determinations. The current regulations reflect that an averaging of the two Levels will be used. This change would allow refusal rates to impact school accountability determinations.

DEPARTMENT RESPONSE: The current regulations reflect changes that were made in the plan submitted to the United States Department of Education to secure plan approval. The “higher performance calculation” is still used to rank schools that have the same Composite Performance Index in order to determine a subgroup’s Composite Performance Level.

89. COMMENT: A commenter expresses appreciation for NYSED’s process that provided multiple opportunities for school districts and other stakeholders to participate in its ESSA plan development and now implementation. This commenter describes other aspects of the new ESSA accountability system that they view favorably, including the addition of chronic absenteeism and college readiness indicators at the state level; the continued emphasis on student growth in elementary and middle school accountability -- the Department’s approach to place it in equal standing with student achievement as a key driver of school improvement; and the inclusion of five- and six-year rates in the graduation rate indicator, so that more students, schools, and communities can see their success reflected in this metric.

DEPARTMENT RESPONSE: No response necessary as the comment is supportive of the regulations.

90. COMMENT: Provide Grades 3-8 test exam results quicker, so that schools and districts can plan appropriately for the next school year. The commenter strongly encourages NYSED to minimize the lag between testing and reporting test results on the Grades 3-8 exam, as it does not allow schools and districts to plan appropriately for the start of the next school year.

DEPARTMENT RESPONSE: The comment is outside the scope of the regulation. Therefore, no response is necessary. Moreover, in June of each year, the Department authorized the release of instructional reports for the Grades 3-8 ELA and Mathematics Tests. The reports allow authorized school personnel to view, for each question that contributed to a student’s score, whether the student answered the question correctly and the NYS Learning Standard measured by the question. The reports allow for raw score performance comparisons at the student, classroom, school, district, and regional levels.

Also, the Department released 75 percent of the Grades 3-8 ELA and Mathematics Test questions that count toward student scores in early June. This includes 100 percent of the constructed-response (open-ended) questions, as well as the scoring materials used by educators to score student responses to these questions. Each released multiple-choice question includes the question itself and an item map that provides the answer key and the standard measured by the question. Each released constructed-response question includes the question itself and an item map that provides the standard measured by the question.

91. COMMENT: A commenter strongly encourages NYSED to dis-incentivize double-testing by changing reporting files and growth percentiles. Currently, NYSED releases reporting files that omit students who only take the Regents exam and not the 8th grade Mathematics exam. These students are omitted in the percent proficient and growth percentiles for a school, which puts the school at a disadvantage. The Regents-only students are rightfully not taking the 8th grade exam and thereby avoiding double-testing; however; their schools suffer the consequences by seemingly low ranks and analysis that would mis-categorize or mischaracterize the learning occurring at the school. This commenter urges NYSED to use a conversion table that takes into account the student’s Regents score and imputes what they would have likely scored if the student had taken the regular 8th grade exam.

DEPARTMENT RESPONSE: Middle school students who take a Regents exam math or science in grades 7 or 8 in lieu of the grade level exam have their results included in the computation of the Weighted Average Achievement Index, the Core Subject Performance Index and the Academic Progress measure. During the 2014-15 school year, the Department and its student growth vendor developed an expansion of the student growth model to calculate SGPs for eighth grade students who take the Algebra I Regents Examination. However, consistent with the Department’s intent to maintain stability in the State-provided growth model during the transition period (2015-16 through 2018-19 school years) as the Department considers a revised State-provided growth model, the Department decided not to adopt this expansion of the growth model for use in institutional accountability. Once the transition period concludes, the Department will consider expanding the model to allow students who take the Algebra I Regents Exam in place of grade level math assessments to contribute to their schools’ growth measures. Growth for these students would be calculated by comparing them to their peers who also took the Algebra I Regents Exam. While including these students will increase the total number of student growth results included in school growth measures, the growth measures are as likely to increase or decrease a school’s Student Growth level depending on how students perform on the Regents Exam relative to their peers.

92. COMMENT: Revisit regulations on participation rate as a criterion for exiting CSI or TSI status, especially for schools with small participation rate deficiencies. The commenter strongly encourages NYSED to avoid harsh punishment for schools with small deficiencies in exam participation. The commenter believes that the policy as proposed in the regulations would mean that a CSI school that has shown consistent academic progress each year and has technically qualified to exit the CSI designation as per the criteria, but still, for example, has a 94% participation rate for Students With Disabilities (SWD) will not exit CSI status.

DEPARTMENT RESPONSE: The Regulations have been revised so that schools can be removed from TSI and CSI status so long as the accountability group(s) for which the school is required to do a participation rate improvement plan are not performing at Level 1 on the Weighted Average Achievement measure.

93. COMMENT: Reconsider and provide additional details about testing participation rate consequences. The commenter believes that participation rate requirements substantially differed in the amount of discretion offered to the Commissioner to remove schools from potential consequences. The commenter expressed that the flexibility described in the regulations does not mirror the approach that NYSED put forward in the approved State Plan, and they feel that insufficient detail is provided about some of the consequences that are listed. For example, “improvement plan,” “self-assessment,” and “participation rate audit” are not defined in the definitions section of the regulations; and “appropriate action” to take to notify “the general public” is left fairly loose. Additionally, they comment that all interventions seem to be predicated on 2 years of results for the same subgroup in the same subject starting in SY17-18, since all regulatory language refers to the initial SY17-18 infraction. The commenter states that the regulations seem to suggest that if a school is above 95% in this one year (SY17-18) it is no longer essentially at risk of being designated for participation rate in future years. The commenter points out that there seem to be various off-ramps and flexibility built in for participation rate accountability when consequences seem a lot more stringent for CSI schools. The commenter believes that this is an inconsistent approach, because even in the most extreme participation rate interventions, the regulations still only say “schools may be required to undertake additional actions” and “extenuating circumstances” can get a school out of consequences.

DEPARTMENT RESPONSE: The Department has revised the proposed regulations and eliminated the reference to “additional activities.” The proposed revised regulations would require schools that undergo a participation rate audit because they have failed for five years to improve the performance of an accountability group in ELA or in math to address recommendations contained in the participation rate audit completed by the Department. With respect to the participation rate audit, the Department will be issuing guidance in the future to schools on how to implement this provision. The Department does not believe that any additional regulatory changes are needed.

94. COMMENT: NYSED should provide more clarity on the State’s involvement and requirement for Commissioner’s approval in participation rate improvement plans for both schools and districts. It is not clear what it means (for schools and districts) to be required by NYSED to implement certain activities and how a district will be required to monitor the implementation of such activities at each school required to implement a plan. There are also references to an audit in the regulations for schools and districts that do not improve their participation rates, but there is insufficient clarity on what kind of an audit and performed by whom.

DEPARTMENT RESPONSE: See response to comment #93.

95. COMMENT: The commenter strongly encourages NYSED to identify transfer schools as CSI in the same proportion as other school types are identified as Comprehensive Support & Improvement (CSI) so that transfer schools are not over-designated based on the need of their students.

DEPARTMENT RESPONSE: The Department disagrees that the number of transfer high schools identified should be proportionate to the number of non-transfer high schools identified. The Department has worked with stakeholders to develop an accountability mechanism that recognizes the unique circumstances of transfer high schools. This mechanism could result in a higher or lower percentage of transfer high schools identified compared to non-transfer high schools, depending on how well transfer high schools perform in relation to the established accountability metrics.

96. COMMENT: The commenter strongly encourages NYSED to revisit the accuracy of its College, Career and Civic Readiness Index data and consider other alternatives for early implementation in SY17-18. The commenter commends NYSED on the decision to include a measure of college- and career- readiness to the statewide accountability system. However, in order to ensure this metric is an accurate and fair representation of their schools’ readiness, they believe that Advanced Placement and Dual Enrollment coursework done by students prior to 2017-18 must be collected and used. Without this data, the metric will be inaccurate and not a true representation of school performance. The commenter urges NYSED to allow districts to submit prior course data through SIRS or by a separate spreadsheet collection. If this data cannot be gathered, then the commenter suggests NYSED delay implementation of this metric until the next round of CSI determinations are made in 2020-21 when multiple years’ of data will have been collected from schools across the entire state.

DEPARTMENT RESPONSE: The Department has researched the impact of including Advanced Placement and Dual Enrollment course and exam results that were taken by students prior to 2017-18 but not reported to the Department and found that inclusion of these data for the vast majority of schools would have little impact on the College, Career, and Civic Readiness Indices and Levels assigned to schools and no impact on the overall accountability status of a school. The Department will note this issue on school report cards. Further, the Department will accept appeals of accountability designations when the inclusion of these results would change the level that would be assigned a subgroup’s CCCR indicator and consequently change the subgroup’s accountability designation. Given this information, the Department does not believe a delay in the use of the CCCR measure or a recalculation of Indices or Levels is warranted.

97. COMMENT: The commenter strongly encourages NYSED to revisit state accountability measures that are based on the school’s own baseline and instead encourages the state to consider using the student population as the basis for growth. In the cases where a school is below the state average, the only way for a school to avoid a Level 1 rating in graduation rate, CCCRI, and chronic absenteeism is to improve on the school’s own result from the prior year. We encourage NYSED to set realistic targets based on incoming student need or prior student performance (e.g. growth).

DEPARTMENT RESPONSE: Several indicators in the ESSA accountability system, such as graduation rate, CCCRI, and chronic absenteeism, give schools credit for making progress compared to the subgroup’s baseline performance. The Department will continue to explore alternative ways of holding schools accountable for results, which could include measures that are based upon the incoming performance of students.

98. COMMENT: A commenter urged NYSED to include at the high school level a metric based on growth percentiles or a student’s starting point in terms of ELA and Math achievement.

DEPARTMENT RESPONSE: The Board of Regents have expressed their commitment over time to adding additional indicators to the ESSA accountability system. Resources permitting, the Department will explore the feasibility of including a metric of student growth in high school based on student performance on Regents examinations. The current grades 9-12 growth model used for to inform principal Annual Professional Performance Reviews includes a measure of student growth on ELA and Algebra I Regents examinations that measures student growth in relation to a student’s performance on the 7 and 8 ELA and math assessments. However, because not all students take the ELA or Algebra Regents exams in the same year, high school growth measures tend to not be as robust as models that measure student growth for elementary/middle school students.

99. COMMENT: The commenter strongly encourages NYSED to revisit the suspension rate metric to avoid suspension quotas or other unintended consequences. The commenter would like for the suspension rate metric to be removed from the ESSA plan because they believe it could incentivize underreporting of serious incidents in schools.

DEPARTMENT RESPONSE: Suspension data is an important indicator of school climate that has been collected and reported for decades in New York. The three-year roll-out timeline for the use of this indicator for accountability purposes is intended to provide districts and schools with ample opportunity to implement alternatives to suspensions. This should result in both a reduction in serious incidents and a reduction in suspensions. In addition, as the use of school climate surveys is expanded, the Department should be better able to determine any instances where there is dissonance between the number of incidents reported and the viewpoints of stakeholders regarding school safety and climate. Therefore, there is little reason to think that there will be a substantial increase in underreporting of serious incidents based on the use of suspension as an accountability measure.

100. COMMENT: A commenter strongly encourages NYSED to create an “ELL graduation rate” that includes all English Language Learner students. The current ELL graduation rates issued by the state do not give a full picture of student progress as the measure only documents students who have not passed the NYSESLAT. The commenter urges NYSED to report an “ELL graduation rate” to show the success of ELL student, by including all students who were English Language Learners at the time they entered high school.

DEPARTMENT RESPONSE: No change necessary. Graduation rates for English Language Learners already include students who are ELLs in the current reporting year as well as those who are not ELLs in the current reporting year but were ELL at any time during the cohort period.

101. COMMENT: A commenter strongly encourages NYSED to explain instances in the chronic absenteeism, graduation rate, and CCCRI regulations when the Commissioner has discretion to assign schools based on other non-defined criteria, as opposed to the use of the decision tables. For these three metrics, NYSED has created opportunities in the regulations for the Commissioner to assign a school to a Level 1 (graduation rate) or Level 2 (chronic absenteeism and CCCRI) outside of the regular decision table. With an eye towards a transparent system that allows districts and schools to understand the system they are held accountable to, the commenter urges NYSED to name the criteria the Commissioner would use in these circumstances or remove these mentions of discretion.

DEPARTMENT RESPONSE: The regulation is intended to give the Commissioner flexibility to establish “floors” and “ceilings” in the assignment of Levels. For example, the Commissioner could decide as the system matures that all schools must achieve a certain minimum performance on an indicator to achieve Level 2 even if the school has met its lower Measure of Interim Progress. Conversely, the Commissioner may decide that over time a school may warrant receiving a Level 2 even if the school does not meet the lower of the two Measures of Interim Progress.

102. COMMENT: Better align Annual Achievement Progress Targets with CSI and TSI exit criteria. The commenter has questions regarding the process used for setting Annual Achievement Progress Targets (AAPTs). In particular, while AAPTs appear to overlap with exit criteria from CSI and TSI schools, the criteria do not appear to precisely align. The commenter finds it unclear, as the regulations are written, how AAPTs may or may not get a school out of its status, and what role the exit criteria would then play. The commenter suggests aligning these two sets of metrics for identified schools to ensure affected schools are clear in what performance targets they are required to reach.

DEPARTMENT RESPONSE: The purpose of the Annual Achievement Progression Target is to identify the CSI schools that have not made gains from the previous year and, therefore, should receive additional support and oversight from the Department. This measure will allow the Department to best determine how to direct its resources so that the schools that are struggling to make gains receive additional attention. It is expected that some schools will meet their Progression Target but will not be eligible to be removed from CSI status. The Annual Achievement Progression Target was designed as a means of determining if a school had improved its performance from the previous year, not as the basis for making exit determinations.

103. COMMENT: Provide additional detail around designation and interventions for Schools Performing at Level 1. The commenter feels that the regulations do not make clear whether schools receiving the Schools Performing at Level 1 designation receive this for the all students subgroup or for any particular subgroup. While references to Schools Performing at Level 1 are made in the section of regulations related to Target Districts, the commenter is not clear who will hold Schools Performing at Level 1 accountable for their performance and improvement, nor who will provide resources and support for any related interventions.

DEPARTMENT RESPONSE: Any group that receives a Level 1 designation for any group is required to have that group’s performance addressed in the district’s consolidated application. The Department will issue further guidance on how districts are expected to work with schools to address this requirement.

104. COMMENT: Provide additional detail around designation and interventions for schools identified for Additional Targeted Support. Whereas CSI and TSI designations are defined and elaborated upon in the regulations, the definitions section of the regulation omits a definition for Additional Targeted Support (ATS). Additionally, there are no clear interventions described in the regulatory text: while it states that ATS schools “may be required” to implement additional actions “as determined by the Commissioner,” the commenter is seeking greater clarity around the formal parameters of this designation and how it would be meaningfully differentiated from the TSI status.

DEPARTMENT RESPONSE: The definition for Additional Targeted Support schools can be found in Section 3 (iii) within the definition for Targeted Support and Improvement schools. A TSI school with any accountability subgroup performing below the threshold for the all students subgroup for the lowest performing five percent of schools shall be identified for additional targeted support. Beginning with the 2018-19 school year, TSI schools shall be identified for additional targeted support in the same years in which CSI school designations are made based on the performance of the all students group. Examples of the actions required of schools identified for Additional Targeted Support can be found in Section (i). These include submitting the annual school comprehensive education plan to the Commissioner for approval; partnering with a BOCES, Regional Bilingual Educational Resource Network, Teacher Center, or other Regional Technical Assistance Center, or other technical assistance provider; and/or implementing a participatory budgeting process. Districts with TSI schools identified for additional targeted support may be required to implement additional actions, as determined by the Commissioner, including submitting a principal support report.

105. COMMENT: Preserve local autonomy around school closure decisions. The commenter believes that the regulatory language does not clearly reflect that the school district reserves the right to decide to close a school. Rather, the text suggests that the Commissioner decides. Under the Receivership Law, the district decides whether to close a school and then seeks approval from the Commissioner. This is, in effect, putting the new school into Receivership status, as it will be assigned an independent monitor who reports to the Commissioner from its inception. It does not appear to us that this provision was included in the State’s original plan, and we seek to maintain our own discretion in closing schools.

DEPARTMENT RESPONSE: The Commissioner’s Regulations related to receivership outlined in Section 100.19(j) explicitly state that nothing prohibits a school district from closing or phasing out a school with the approval of the commissioner. The purpose of an independent monitor is to ensure that an acceptable plan for the closing of a school and opening of a new school, as appropriate, is submitted and then successfully implemented. The independent monitor is not an independent receiver and does not serve as the superintendent for the school. Any school that opens as a result of successful implementation of the school opening plan remains under the jurisdiction of the district and is not placed in receivership.

106. COMMENT: Clarify applicability of CSI/TSI designations and interventions to charter schools. The commenter states that it is not sufficiently clear in the regulatory text how ESSA designations and interventions would be applied across all school types. The regulatory language suggests that charters can still receive the CSI and TSI designation, but that interventions can be differentiated depending on their authorizer and charter. It is not clear how interventions would be consistently or uniformly applied, though, across traditional public and charter public schools receiving the CSI or TSI designations. The commenter asks that the state clarify this point.

DEPARTMENT RESPONSE: Charter schools are identified as CSI and TSI in the same manner as other public schools. However, interventions for charter schools designed as a CSI or TSI school, pursuant to federal and state law, is differentiated based on the school’s charter and the authorizer’s policies and procedures, which are typically included as part of the school’s charter. The major authorizers in New York have indicated that a school’s designation as a CSI or TSI school will result in a school being required to take corrective actions and will be factored into renewal decisions.

107. COMMENT: The regulations state that schools must administer a survey to four groups annually: students, teachers, school leaders, and principals. The regulations do not specify whether this survey must be the same instrument in all schools across the state, or whether districts have autonomy to make decisions about the survey. A commenter strongly encourages NYSED to reconsider the need for a mandated survey as an intervention strategy for schools. The commenter urges NYSED to give districts flexibility to determine the survey instrument that is most meaningful for their context. The commenter also urges NYSED to keep surveys out of the state accountability system. If the state explores this option, the commenter would implore NYSED to allow districts to submit their local surveys for approval in lieu of a statewide survey. For scoring purposes, the local and state survey could be equated to a shared set of questions with similar wording to ensure that schools could all contribute scores to a statewide metric.

DEPARTMENT RESPONSE: The requirement that identified schools survey staff, parents, and students is intended to ensure that schools can gather feedback from multiple stakeholders to identify needs to be addressed in the School Comprehensive Education Plan. The Department will issue guidance to LEAs on ways to fulfill this requirement and how LEAs may be permitted to identify survey instruments that best meet their needs. The Department hopes that schools and districts look for various ways to gather ongoing feedback from stakeholders and, therefore, the Department would not restrict schools and district from using additional surveys beyond the survey that the LEA uses to fulfill the annual survey requirement. There is no plan at this time to include surveys as part of process for differentiating school accountability designations.

108. COMMENT: Explain how evidenced-based interventions (EBIs) will be evaluated and monitored. The regulations lack clarity about how NYSED will monitor the selection, use, implementation, and effectiveness of EBIs at CSI and TSI schools. For instance, it would be helpful to know and plan for expectations that NYSED will have about what counts as “evidence based” for interventions, what counts as “job embedded” professional development aligned to EBIs, and how much autonomy schools and districts will have in choosing EBIs to deploy at schools. Additionally, some of the definition language suggests that in order for such evidence-based interventions to be acceptable, they must help increase the enrollment of the school – which seems outside of the scope of what the intervention is designed to do (i.e., to improve student outcomes). The commenter asks for these points to be clarified, and strongly recommends that NYSED allows local school districts to set their own direction in selecting, implementing, and monitoring the implementation of interventions at low performing schools (with guidance on how to stay in alignment with federal statutory requirements for evidence base of interventions).

DEPARTMENT RESPONSE: The Department will monitor the identification of evidence-based interventions through the School Comprehensive Education Plan (SCEP) approval process in CSI schools. In addition, the Department may consider the implementation and effectiveness of the intervention through the on-site Needs Assessment process. LEAs must identify in their annual SCEP one evidence-based intervention that meets the definition of either “Strong,” “Moderate,” or “Promising” evidence as defined in Section 8101(21)(A) of ESSA. The Department will review the evidence-based intervention identified when approving CSI school SCEPs. Districts will be responsible for reviewing the evidence-based intervention identified in TSI school SCEPs.

As stated in the ESSA plan, “CSI and TSI schools will have the flexibility to identify an evidence-based intervention to address the root causes identified during the needs assessment process.” The Department does not intend to mandate specific interventions.

The regulations do not indicate that evidence-based interventions must increase the enrollment of the school. The Department will use the definitions found in Section 8101(21)(A) of ESSA to determine if an intervention meets the criteria for evidence-based. However, there is language in the regulation that identifies the expectation that an intervention “must be implemented so as to affect such percentage of a school’s enrollment or such percentage of classrooms as may be prescribed by the Commissioner for the school.” This language has been included to ensure that CSI schools identify an intervention that is intended to impact sufficient numbers of students at the school.

Finally, in addition to the definition of job-embedded professional development identified in the Regulations, the Department will follow the definition of Professional Development found in Section 8101(42) of ESSA when reviewing SCEPs to ensure that professional development aligns to the law’s provision that PD does not heavily really on “stand-alone, 1-day, or short-term workshops,” and instead allows for individual practice of skills in authentic contexts and provides opportunities for feedback.

109. COMMENT: Detail where money for the participatory budgeting process will come from and how participatory budgeting processes will be administered. While some aspects of participatory budgeting (PB) process are detailed in the regulations, and while NYSED is administering a pilot program to better understand how PB can work, we suggest incorporating clearer guardrails on PB programming at CSI schools in the final regulations. Specifically, the commenter requests greater clarity about where funds should come from to be used in PB, and - while the floor has been set at $2,000 per school – understanding the expectation of how much the state expects schools to contribute to PB processes. It would also be helpful to know more about specific programmatic components for how PB should work (e.g., voting and parent and teacher participation).

DEPARTMENT RESPONSE: To ensure that implementation of participatory budgeting is successful, the Department believes it would be better to conduct a pilot process that informs the guidance given to districts and schools rather than define specific parameters within regulations at this time. Similarly, while the proposed regulations specify the minimum amount required to be used for participatory budgeting, at this stage the Department would not want to restrain schools and districts that have fully embraced participatory budgeting by putting limits on the amount that schools can dedicate toward this endeavor.

110. COMMENT: Revisit district- versus borough-level accountability. The commenter strongly suggests that NYSED maintain the current structure for district-level accountability for New York City high schools. The commenter believes that NYSED’s proposed designation of borough-level high school accountability does not comport with the New York City Department of Education’s (NYCDOE) structure for high school supervision, support, and accountability. The proposed change could also potentially have a negative impact on the NYCDOE’s ongoing efforts to create vertical alignment and a more seamless P-12 continuum.

DEPARTMENT RESPONSE: The regulations have been revised so that the present accountability system in which community school districts are held accountable for high school performance will be maintained.

111. COMMENT: Provide additional guidance on performing Resource Allocation Reviews/Audits. The commenter is seeking greater clarity on how NYSED will examine (or require districts to examine) the effectiveness of professional development and other provisions of the Resource Allocation Reviews/Audits. Additionally, the regulations reference use of “best practices as determined by Commissioner,” without specifying the guidelines in place for what practices these will be, or how CSI/TSI schools will need to account for them in these Audits. The commenter would like to continue to be able to determine the effectiveness of their own professional learning, and they suggest the Commissioner engage with districts to understand and determine an ongoing list of best practices in school improvement and transformation work.

DEPARTMENT RESPONSE: The Department appreciates the feedback that more guidance is needed concerning the Resource Audit process. The Department anticipates providing this information as part of the guidance and training that LEAs will receive on the Needs Assessment process.

112. COMMENT: Make Measures of Interim Progress an authentic, meaningful lever for school improvement. Based on current schedule for release of school performance data, there is little time left (at least for SY18-19) to use Measures of Interim Progress as meaningful, authentic goals against which schools can hold themselves accountable for performance improvement. The commenter urges NYSED to make MIPs a greater focus of the new ESSA accountability system, with a goal of moving beyond considering the system one of just accountability metrics and instead as a means drive meaningful and continuous improvement at all schools.

DEPARTMENT RESPONSE: The Department is required to identify CSI and TSI schools in 2018-19 using 2017-18 school year data. Since the 2018-19 school year will be a planning year, there should be ample time for identified schools to develop their plans for implementation in the 2019-20 school year. In addition, any current Priority or Focus school will continue to implement their current plans in the 2018-19 school year.

113. COMMENT: Several commenters shared views and concerns that did not pertain to the regulations, but raised points regarding issues such as redistricting, school segregation, school lotteries, NYS state standards, school curricula, testing in general, assessment procedures, enrollment in college, and the value of hard work.

DEPARTMENT RESPONSE: These comments were outside the scope of the regulations. Therefore, no response is necessary.

114. COMMENT: The commenter expressed concern that transfer schools will be disproportionately identified as failing because of their mission to serve over-age, under-credited students. The commenter requests that NYSED research alternative metrics for transfer schools and weigh the success of students by means such as completion of the HSE, attainment of workforce credentials and graduation after a sixth year.

DEPARTMENT RESPONSE: The ESSA accountability system already takes into account graduation after a sixth year. The earning of high school equivalency diplomas is also part of the College, Career, and Civic Readiness Index and will be incorporated into the accountability mechanism that recognizes the unique circumstances of high schools. The Department intends to review regularly with stakeholders the way in which it holds transfer high schools accountable, with the possibility over time of revising current accountability metrics or adding new ones that address the unique circumstances of these schools.