To prescribe requirements for bilingual education and English as a New Language programs for English Language Learners.
Substance of final rule:
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, the proposed rule has been substantially revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith. The following is a summary of the substantive provisions of the revised proposed rule.
The existing Part 154 regulations are amended to refer to “English Language Learners (ELL)” instead of “pupils with limited English proficiency” and reorganized under a new Subpart 154-1, which is generally made applicable to programs operated beginning with the 2007-2008 school year and prior to the 2015-2016 school year; provided that a school district may choose to implement one or more provisions of the new Subpart 154-2 in the 2014-2015 school year upon submission of a plan and approval by the Commissioner.
A New Subpart 154-2 is added and generally made applicable to programs operated beginning with the 2015-2016 school year, and includes the following provisions:
INITIAL AND REENTRY PROCESS AND DETERMINATION OF ENGLISH PROFICIENCY [§ 154-2.3(a)]
Implement a four step English Language Learner (ELL) identification process upon a student’s initial enrollment or reentry in a New York State public school to ensure holistic and individualized decisions can be made by qualified staff, including:
(1) administration of the Home Language Questionnaire,
(2) an individual interview with the student,
(3) a determination for students with a disability of whether the disability is the determinant factor affecting the student’s ability to demonstrate proficiency in English; and
(4) administration of a statewide English language proficiency identification assessment.
SIFE status [§ 154-2.3(a) and (n)]
Districts shall identify ELLs as Students with Interrupted/Inconsistent Formal Education (SIFE) as part of the identification process. SIFE students shall continue to be identified as such until the performance criteria for removal are met, even if the student continues to be identified as an ELL. Upon a student’s exiting SIFE status, the school district must maintain records of student’s SIFE status.
REVIEW OF IDENTIFICATION DETERMINATION [§ 154-2.3(b)]
Implement a review process to determine if a student was misidentified upon enrollment or reentry to be completed within the first 45 days of school. A review would commence upon request by a parent; or teacher with the consent of the parent; or a student, if the student is 18 years old or older. Parental, or student if the student is 18 years or older, consent; principal and superintendent approval are required before a change in determination.
PARENT NOTIFICATION AND INFORMATION [§ 154-2.3(f)]
School staff shall meet with parents or persons in parental relation at least once a year, in addition to other generally required meetings with parents, to discuss their child’s academic content and language development progress and needs.
RETENTION OF IDENTIFICATION AND REVIEW RECORDS [§ 154-2.3(c)]
Districts shall collect and maintain in ELL student’s cumulative record:
• records indicating parent’s preferred language or mode of communication; and
• records of notices and forms generated during the identification and placement process, and review process.
PLACEMENT [§ 154-2.3(g)]
Continue to require placement in a Bilingual Education/ESL program within 10 school days after initiating the identification process. Districts shall complete the identification process before an ELL student receives a final school placement.
PROGRAM REQUIREMENTS & PROVISION OF PROGRAMS [§§ 154-2.3(d) and (h)]]
Districts shall create annual estimates of ELL enrollment before the end of each school year and create a sufficient number of Bilingual Education programs in the district, if there are 20 or more ELLs of the same grade level who speak the same home language district wide.
Districts will be allowed to apply for a one-year exemption for languages that represent less than 2% of the statewide population, if they can demonstrate they meet established criteria for a one-year exemption.
New programs triggered by this provision shall be placed in a school that has not been identified as a Schools Under Registration Review or as a Focus or Priority School, if such school exists in the district.
Continue to require that each school with 20 or more ELL students of the same grade who speak the same home language provide a Bilingual Education program.
English as a Second Language instruction shall be offered through two settings:
(1) Integrated ESL (ESL methodologies in content area instruction co-taught or taught by a dually certified teacher); and
(2) Stand-alone (ESL instruction with an ESL teacher to develop the English language needed for academic success).
PROGRAM CONTINUITY [§ 154-2.3(e)]
Districts shall provide program continuity so that ELLs can continue to receive the program type (Bilingual Education or ESL) in which they were initially enrolled.
EXIT CRITERIA [§ 154-2.3(m)]
Implement three different criteria to allow students to exit ELL status, including:
(1) scoring proficient on the statewide English language proficiency assessment;
(2) a combination of NYSESLAT scores and 3-8 ELA assessment or ELA Regents scores; or
(3) a determination that an ELL with a disability cannot meet criteria (1) or (2) because of their disability and are not in need of ELL services.
SUPPORT AND TRANSITIONAL SERVICES [§ 154-2.3(i)]
Districts shall annually identify ELLs not demonstrating adequate performance and provide additional supports aligned to district wide intervention plans.Districts shall provide at least two years of transitional supports to ELLs who exit out of ELL status (former ELLs).
PROFESSIONAL DEVELOPMENT AND CERTIFICATION [154-2.3(k)]
Create certification areas for bilingual teaching assistants and tenure and seniority protection areas for bilingual teaching assistants, bilingual teachers and ESL teachers.
Require that all prospective teachers complete coursework on ELL instructional needs, language acquisition and cultural competency.
Require that 15 percent of professional development hours for all teachers and administrators be specific to the needs of ELLs, language acquisition and cultural competency.
Require that 50 percent of professional development hours for all Bilingual Education and ESL teachers to be specific to the needs of ELLs, language acquisition and cultural competency.
DISTRICT PLANNING AND REPORTING [§ 154-2.4]
Districts shall provide additional information in plans regarding programs for subpopulations of ELLs, information provided to parents, methods to annually measure and track ELL progress, and systems to identify, assess, and exit students from ELL status.
Require districts to provide additional information in reports regarding programs for subpopulations of ELLs including program information, if offered, by subpopulations and languages spoken in the district.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 154-2.3(b)(5) and (6).
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, nonsubstantial revisions were made to the proposed regulation, as follows:
In paragraph (5) of subdivision (a) of section 154-2.3, grammatical revisions were made to replace a period with a comma and to delete a comma.
In paragraphs (5) and (6) of subdivision (b) of section 154-2.3, the phrase “the student, if the student is 18 years of age or older” was added to correct an inadvertent omission of such phrase and to otherwise clarify that such students be provided with notice of the superintendent’s acceptance of the principal’s recommendation to change a student’s designation and be provided with the notice of the reversal of a determination made by the principal in consultation with the Superintendent or the Superintendent’s designee.
In addition, references in Subpart 154-2 to specific sections, subdivisions, paragraphs etc. of Subpart 154-3 have been replaced with general references to “Subpart 154-3 of this Part” because the Department is proposing revisions to Subpart 154-3 as a separate rule making and it is uncertain at this time what the specific section references will be.
The above nonsubstantial revisions do not require any changes to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, nonsubstantial revisions were made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above nonsubstantial revisions do not require any changes to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, nonsubstantial revisions were made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above nonsubstantial revisions do not require any changes to the previously published Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, nonsubstantial revisions were made to the proposed regulation as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The revised proposed rule is necessary to implement Regents policy on standards for instruction of English Language Learners (ELL), to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
Federal civil rights and education laws, as well as federal court jurisprudence, require that ELL students must be provided with equal access to all school programs and services offered to non-ELL students, including access to programs required for graduation. Education Law section 3204 and Part 154 of the Regulations of the Commissioner (8 NYCRR Part 154) contain standards for educational services provided to ELLs in New York State in order to meet these federal obligations.
In light of developments in research and best practices for ELL instruction, federal jurisprudence on civil rights obligations towards ELLs, and concerns about the achievement gap between ELLs and non-ELLs in New York State, SED engaged stakeholders to determine how Part 154 programs and services could be enhanced to better meet the needs of the State’s multilingual population.
Over the past 10 years, New York State ELL student enrollment has increased by 20%; ahead of the 18% national increase the U.S. Department of Education has reported. Currently, in New York State, over 230,000 ELLs speaking over 140 languages make up approximately 9% of the total student population. Spanish is the home language for approximately 62% of ELLs, and just over 41% were born in another country.
Our challenge in addressing the language and academic needs of ELLs is easily transparent in graduation rates. In 2013, 74% of all eligible New York State students graduated high school compared to 34% of ELLs who graduated. Out of the total State graduates, just over 35% were calculated to be college and career ready compared to just over 7% of ELL graduates calculated to be college and career ready.
In addition to graduation rates, challenges in ELA and Math outcomes between ELLs are non-English Language Learners (non-ELLs) are evident. In 2012, 58% of non-ELLs met or exceeded the ELA proficiency standard in grades 3-8. For the same year, 11.7 % of ELLs met or exceeded the standard. In 2013, with the implementation of the more rigorous NYS Common Core Learning Standards, 33% of non-ELLs met or exceeded the ELA proficiency standard in grades 3-8 with 3.2% of their ELL peers achieving the same standard.
Challenges in Math outcomes between ELLs and non-ELLs are also evident in New York State. In 2012, 67.2% of non-ELLs met or exceeded the Math proficiency standard in grades 3-8. For the same year, 34.4% of ELLs met or exceeded the standard. In 2013, with the implementation of the more rigorous NYS Common Core Learning Standards, 32.7% of non-ELLs met or exceeded the Math proficiency standard in grades 3-8 with 9.8% of their ELL peers achieving the same standard.
The revised proposed rule will improve the learning environment and academic outcomes for ELLs to close the achievement gap between ELLs and non-ELLs, and ensure that ELLs can graduate college and career ready. The revised proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised proposed rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:
An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.
Assessment of Public Comment
Since publication of the Notice of Proposed Rule Making in the State Register on July 9, 2014, the State Education Department received over 100 comments during the public comment period. The majority of the responses can be categorized as generally supportive of the amendments. Among those who were supportive, many urged the Department to make available additional guidance, supports, or resources to assist in implementation of the Regulations. Some respondents recommended that certain provisions of the regulations should be expanded or intensified.
Among those who expressed concerns about the regulations, a number of respondents conflated the proposed regulations with the provisions of the current Part 154, and raised objections regarding these current provisions. A number of commenters appear to have misunderstood certain provisions of the proposed regulations. For example, a number of responses, which appeared to be based on a form letter, raised concerns that students would be forced to leave their home schools to attend Bilingual Education programs. In fact, while the proposed regulations would require, in many instances, that districts create a Bilingual Education program when there are 20 or more students in the district who attend the same grade and speak the same home language, no student would be forced to transfer to such a program, as parents have the option to have their child remain in his or her home school.
The most frequent concerns raised by commenters were:
• It will be challenging to find qualified personnel to implement the initial identification process, as well as determine whether students should be classified as Students with Interrupted Formal Education (SIFE);
DEPARTMENT RESPONSE: The Home Language Questionnaire (HLQ) is designed to determine whether a student speaks a language other than English. This provision is currently in Part 154, has remained unchanged since adoption by the Regents in 1990, and has not been proposed for amendment pursuant to current rule making. Under the proposed regulations, qualified personnel to administer the HLQ include not only ESL teachers, but also Bilingual Education teachers or any certified teacher trained in cultural competency, language development, and the needs of English Language Learners. Thus, the proposed amendments do not require that only ESL teachers be relied upon to administer the initial identification process, including the administration of the HLQ. Districts may use any certified teacher trained in cultural competency, language development, and the needs of English Language Learners. If the proposed regulations are approved by the Board of Regents, guidance will be created and released by the Department.
With respect to SIFE, as of 2012-2013 SY, districts are required to identify Students with Interrupted Formal Education (SIFE), which requires determining grade level literacy in their home language and math. See page 194 of the NYSED SIRS 2013-14 manual for more information (http://www.p12.nysed.gov/irs/sirs/2013-14/2013-14SIRSManual9-18-20140725.pdf). As always, the Department will continue to work with districts to identify and develop best practices and shared resources. If the proposed regulations are approved by the Board of Regents, guidance will be created and released by the Department. For math, districts should use existing school based assessments to determine the student’s grade level in math. Qualified personnel as referred to in section 154-2.3 will be able to administer and score the identification assessment.
• The proposed regulations either inappropriately expand the requirements for provision of Bilingual Education programs, especially by requiring the creation of Bilingual Education programs based on the number of students in a grade districtwide who speak the same home language, or, alternatively, do not go far enough in making bilingual opportunities available by limiting the requirement for creation of “district” Bilingual Education programs to those languages spoken by at least 5% of ELLs statewide.
DEPARTMENT RESPONSE: In order to provide English Language Learners access to high quality Bilingual Education, stakeholders have strongly suggested the creation of additional bilingual opportunities that can meet the diverse needs of ELLs. District-wide Bilingual Education programs create additional academic opportunities for students. Districts can choose to implement Two-way Dual Language programs which distinctly promote diversity, multilingualism, and positively impact the collaborative and cohesive nature of communities.
The proposed regulations do not force any students to attend a different school than that which they would attend if the students were not English Language Learners. While the regulations expand the opportunities for students to be placed in Bilingual Education programs, parents have the right to decline this placement for their child, and have their child remain in his or her home school. Based on stakeholder feedback, the Department believes it is appropriate to allow districts to apply for annual one-year exemptions from providing Bilingual Education programs in languages representing less than 5% of the Statewide ELL population. Five years is the maximum exemption period. The Department will determine on a case-by-case basis annually whether a district warrants further one year exemptions.
• The requirements that 15% of mandated professional development for all teachers and 50% of mandated professional development for ESL and bilingual teachers be focused on meeting the needs of ELLs are too prescriptive.
DEPARTMENT RESPONSE: CR Part 154 includes this provision to ensure that all administrators and teachers are provided with research-based professional development that will allow them to prepare ELL students to meet the Common Core Learning Standards (CCLS) for college and career readiness. The Department believes that this professional development will benefit all students, in addition to ELL students. Moreover, the number of ELL students in a district should not change this basic requirement because a district’s ELL population can change from year to year. All teachers in the state are expected to be prepared to work with English Language Learners. See Blueprint for ELL Success, http://usny.nysed.gov/docs/blueprint-for-ell-success.pdf.
In addition, the requirement that 15% of professional development be based on working with ELLs must be embedded and integrated with professional development in content area instruction. For example, a professional development session that meets this requirement could be how to differentiate instruction for all students, including ELLs.
All teachers must receive professional development to keep up to date with current research-based practices and to maintain their certification in New York State. In addition, the requirement that 50% of their professional development be based on working with ELLs must be embedded and integrated with professional development in content area instruction. For example, a professional development session that meets this requirement could include how to scaffold instruction in content area classes (e.g., English Language Arts, Science), or how to use technology to enhance instruction for English Language Learners.
Nevertheless, the Department is considering a separate rulemaking in the near future to provide for a waiver, under specified conditions, of the 15% of mandated professional development for all teachers and 50% of mandated professional development for ESL and Bilingual Education teachers.
• The regulations will impose burdensome costs on districts, particularly small ones.
DEPARTMENT RESPONSE: In previous presentations to the Regents, Department staff have highlighted that the proposed regulations contain provisions that will likely save many districts money in addition to those provisions that may increase costs for some districts. The Department also points out that some costs to which some commenters raised objections pertain to requirements of the current Part 154, not to the provisions of the proposed regulations. The Department will continue to work with districts to identify and develop best practices and shared resources. If the proposed regulations are approved by the Board of Regents, guidance will be created and released by the Department.
Finally, the Department notes that there has been extensive research conducted over the last 10 years that indicates that the integration of language and content instruction leads to higher student outcomes. See e.g., Duffy, P. (2010). Language socialization into academic discourse communities; Coyle, D., Hood, P. & Marsh, D. (2010). CLIL: Content and language integrated learning. New York, NY: Cambridge University Press; Snow, C., Griffin, P., and Burns, S. (2007). Knowledge to support the teaching of reading: Preparing teachers for a changing world. Hoboken, NJ: John Wiley & Sons. Annual Review of Applied Linguistics, 30, 169-192. Based on a review of this research the Department is proposing the new instructional model of Integrated English as a New Language in addition to Stand-alone English as a New Language instruction.
