Pupils with Limited English Proficiency (English Language Learner (ELL) programs.
Purpose:
To prescribe identification/exit procedures for students with disabilities in ELL programs.
Text of revised rule:
Subpart 154-3 of the Regulations of the Commissioner of Education is added, effective December 3, 2014, as follows:
SUBPART 154-3
IDENTIFICATION AND EXIT PROCEDURES FOR STUDENTS WITH DISABILITIES FOR ENGLISH LANGUAGE LEARNER PROGRAMS OPERATED IN THE 2015-2016 SCHOOL YEAR AND THEREAFTER
154-3.1 Scope of Subpart and applicability.
The provisions of this Subpart shall apply to students with disabilities who are subject to the initial and reentry process and determination of English proficiency pursuant to section 154-2.3(a) of this Part and the exit procedures pursuant to section 154-2.3(m) of this Part in programs operated beginning with the 2015-2016 school year and thereafter. Except as otherwise provided in this Subpart, all other provisions of Subpart 154-2 of this Part shall apply to students with disabilities who are English Language Learners in programs operated beginning with the 2015-2016 school year.
154-3.2 Definition.
Language Proficiency Team (LPT) shall mean a committee that makes a recommendation regarding the initial assessment of English Language Learner status for a student with a disability. The LPT shall be minimally comprised of a school/district administrator; a teacher or related service provider with a bilingual extension and/or a teacher of English to Speakers of Other Languages, certified pursuant to Part 80 of this Title; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent or person in parental relation. A qualified interpreter or translator of the language or mode of communication the parent or person in parental relation best understands, as defined in section 154-2.2(t) of this Part, shall be present at each meeting of the LPT.
154-3.3 Determination of whether a student with a disability shall take the statewide English language proficiency identification assessment. For students with disabilities who are subject to the initial and reentry identification process and determination of English language proficiency pursuant to section 154-2.3(a) of this Part, following the administration of Steps 1 and 2 and prior to the administration of Step 4 pursuant to section 154-2.3(a) of this Part, the following provisions shall apply:
(a) For a student identified as having a disability, a Language Proficiency Team (LPT), as defined in section 154-3.2 of this Subpart, shall make a recommendation as to whether there is evidence that the student may have second language acquisition needs.
(b) In making this recommendation, the LPT shall, in accordance with guidance prescribed by the commissioner, consider evidence of the student’s English language development, including, but not limited to:
(1) the results of Steps 1 and 2 in section 154-2.3(a)(1) and (2) of this Part;
(2) the student’s history of language use in school and home or community;
(3) the individual evaluation of the student conducted in accordance with the procedures in section 200.4(b)(6) of this Title, which shall include assessments administered in the student’s home language; and
(4) information provided by the Committee on Special Education (CSE) as to whether the student’s disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
(c) Based on the evidence reviewed in subdivision (b) of this section, the LPT must make a recommendation as to whether the student may have second language acquisition needs or whether the student’s disability is the determinant factor affecting whether the student could demonstrate proficiency in English during Step 2 in section 154-2.3(a)(2) of this Part.
(d) If the LPT recommends that the student does not have second language acquisition needs and therefore should not take the English language proficiency identification assessment to identify the student as an English Language Learner, such recommendation shall be referred to the school principal for review.
(e) If, upon review, the school principal agrees with the recommendation of the LPT that the student is not an English Language Learner and will not take the English language proficiency identification assessment, the school principal shall inform the parent or person in parental relation of this recommendation, in the language or mode of communication the parent or person in parental relation best understands.
(f) Upon receipt of a recommendation by the school principal, the Superintendent or his or her designee shall review the school principal’s recommendation and make a final determination to accept or reject the school principal’s recommendation within ten (10) days of receiving the school principal’s recommendation. If the Superintendent determines that the student is not an English Language Learner, notice of such determination shall be provided to the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands within five (5) days of such final determination.
(g) If the LPT determines that the student with a disability may have second language acquisition needs, the student shall take the initial English language proficiency identification assessment. The CSE shall determine, in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title, whether the student shall take the assessment with or without testing accommodations or an alternate assessment as may be prescribed by the commissioner.
154-3.4 Exit Criteria for Students with Disabilities.
(a) Each school district will annually determine if a student with a disability who has been identified as an English Language Learner pursuant to section 154-3.3 of this Subpart will continue to be identified as an English Language Learner.
(b) Following the initial identification of a student with a disability as an English Language Learner, the CSE shall annually make an individual determination as to which of the following methods of assessment shall be used to determine if such student will continue to be identified as an English Language Learner:
(1) the annual English language proficiency assessment without the use of testing accommodations; or
(2) the annual English language proficiency assessment with appropriate testing accommodations to be provided in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title; or
(3) an alternate assessment as may be prescribed by the commissioner.
Revised rule compared with proposed rule:
Substantive revisions were made in sections 154-3.2, 154-3.3 and 154-3.4.
Text of revised proposed 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
Data, views or arguments may be submitted to:
Cosimo Tangorra, Jr., Deputy Commissioner, State Education Department, Office of P-12 Education, State Education Building 2M West, 89 Washington Ave., Albany, NY 12234, (518) 474-5520, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, substantial revisions were made to the proposed rule, as follows:
In response to public comment and guidance issued by the United States Department of Education on July 18, 2014 which clarified that all students with disabilities are required to be included in all general State and districtwide assessment programs including the English language proficiency assessment with appropriate accommodations and alternate assessments, the proposed Subpart 154-3 has been substantially revised as follows:
In sections 154-3.2 and 154-3.3, the role of the Language Proficiency Team (LPT) in the initial identification of a student with a disability as an ELL has been revised so that, beginning in the 2015-16 school year, the LPT is responsible for recommending to the principal whether a student identified as having a disability shall take the statewide English language proficiency identification assessment (i.e., the NYSITELL).
Consistent with the above, the provision in 154-3.3(a)(2), that beginning in the 2016-2017 school year and thereafter the Committee on Special Education (CSE) shall individually determine whether a student identified as having a disability shall take the statewide English language proficiency identification assessment, has been deleted.
The provision in 154-3.3(b)(1), that beginning in the 2015-2016 school year and thereafter the LPT shall individually determine whether a student should continue to be identified as ELL subject to review by the school principal and superintendent, has been deleted.
The provision in 154-3.3(b)(2), that beginning in the 2016-2017 school year and thereafter the CSE shall individually determine whether a disability is the determinant factor affecting whether a student can demonstrate proficiency in English and if so allowing the CSE to exit the student from ELL status without having to take the English language proficiency assessment, has been deleted.
A new section 154-3.4, regarding exit criteria for students with disabilities, has been added to clarify that the CSE shall annually make an individual determination as to which of the following methods of assessment shall be used to determine if a student with a disability will continue to be identified as ELL:
(1) the annual English language proficiency assessment (i.e., the NYSESLAT) without the use of testing accommodations; or
(2) the annual English language proficiency assessment with appropriate testing accommodations to be provided in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title; or
(3) an alternate assessment as may be prescribed by the commissioner.
The above revisions require that the Local Government Mandates and Paperwork sections of the previously published Regulatory Impact Statement be revised as follows:
LOCAL GOVERNMENT MANDATES:
Initial and Reentry Process for Determination of English Proficiency.
School districts must form a Language Proficiency Team (LPT) to make recommendations regarding the initial assessment of ELL status for a student with a disability. The LPT shall include a school/district administrator; a certified teacher or related service provider with a bilingual extension and/or a certified teacher of English to Speakers of Other Languages; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent/person in parental relation. A qualified interpreter/translator of the language or mode of communication the parent/person in parental relation best understands shall be present at each LPT meeting.
Beginning in the 2015-16 school year, the LPT is responsible for recommending to the principal whether a student identified as having a disability may have second language acquisition needs or whether the student shall take the statewide English language proficiency identification assessment (i.e., the NYSITELL).
For students with disabilities who are subject to the initial and reentry identification process and determination of English language proficiency pursuant to Commissioner’s Regulations section 154-2.3(a), following the administration of Steps 1 and 2 and prior to the administration of Step 4 pursuant to Commissioner’s Regulations section 154-2.3(a), the following provisions shall apply:
For a student identified as having a disability, the Language Proficiency Team (LPT) shall make a recommendation as to whether there is evidence that the student may have second language acquisition needs. In making this recommendation, the LPT shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development, including, but not limited to:
(1) the results of Steps 1 and 2 in section 154-2.3(a)(1) and (2) of this Part;
(2) the student’s history of language use in school and home or community;
(3) the individual evaluation of the student conducted in accordance with the procedures in section 200.4(b)(6) of this Title, which shall include assessments administered in the student’s home language; and
(4) information provided by the Committee on Special Education (CSE) as to whether the student’s disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
Based on the evidence reviewed, the LPT must make a recommendation as to whether the student may have second language acquisition needs or whether the student’s disability is the determinant factor affecting whether the student could demonstrate proficiency in English during Step 2 in section 154-2.3(a)(2). If the LPT recommends that the student does not have second language acquisition needs and therefore should not take the English language proficiency identification assessment to identify the student as an English language learner, such recommendation shall be referred to the school principal for review.
If, upon review, the school principal agrees with the recommendation of the LPT that the student is not an English Language Learner and will not take the English language proficiency identification assessment, the school principal shall inform the parent or person in parental relation of this recommendation, in the language or mode of communication the parent or person in parental relation best understands.
Upon receipt of a recommendation by the school principal, the Superintendent or his or her designee shall review the school principal’s recommendation and make a final determination to accept or reject the school principal’s recommendation within ten (10) days of receiving the school principal’s recommendation. If the Superintendent determines that the student is not an English Language Learner, notice of such determination shall be provided to the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands within five (5) days of such final determination.
If the LPT determines that the student with a disability may have second language acquisition needs, the student shall take the initial English language proficiency identification assessment. The CSE shall determine, in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title, whether the student shall take the assessment with or without testing accommodations or an alternate assessment as may be prescribed by the Commissioner.
Exit Criteria for Students with Disabilities.
Each school district will annually determine if a student with a disability who has been identified as an English Language Learner pursuant to Commissioner’s Regulations section 154-3.3 will continue to be identified as an English Language Learner.
Following the initial identification of a student with a disability as an English Language Learner, the CSE shall annually make an individual determination as to which of the following methods of assessment shall be used to determine if such student will continue to be identified as an English Language Learner:
(1) the annual English language proficiency assessment without the use of testing accommodations; or
(2) the annual English language proficiency assessment with appropriate testing accommodations to be provided in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title; or
(3) an alternate assessment as may be prescribed by the Commissioner.
PAPERWORK:
The LPT and principal shall issue written recommendations, and the superintendent of schools shall issue a written determination, regarding the initial identification of ELL status for a student with a disability.
Parents/persons in parental relation must submit a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, in order for a principal to submit a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee for review and approval.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, substantial revisions were made to the proposed rule, as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above changes require that the Compliance Requirements section of the previously published Regulatory Flexibility Analysis be revised to read as follows.
2. COMPLIANCE REQUIREMENTS:
Initial and Reentry Process for Determination of English Proficiency.
School districts must form a Language Proficiency Team (LPT) to make recommendations regarding the initial assessment of ELL status for a student with a disability. The LPT shall include a school/district administrator; a certified teacher or related service provider with a bilingual extension and/or a certified teacher of English to Speakers of Other Languages; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent/person in parental relation. A qualified interpreter/translator of the language or mode of communication the parent/person in parental relation best understands shall be present at each LPT meeting.
Beginning in the 2015-16 school year, the LPT is responsible for recommending to the principal whether a student identified as having a disability may have second language acquisition needs or whether the student shall take the statewide English language proficiency identification assessment (i.e., the NYSITELL).
For students with disabilities who are subject to the initial and reentry identification process and determination of English language proficiency pursuant to Commissioner’s Regulations section 154-2.3(a), following the administration of Steps 1 and 2 and prior to the administration of Step 4 pursuant to Commissioner’s Regulations section 154-2.3(a), the following provisions shall apply:
For a student identified as having a disability, the Language Proficiency Team (LPT) shall make a recommendation as to whether there is evidence that the student may have second language acquisition needs. In making this recommendation, the LPT shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development, including, but not limited to:
(1) the results of Steps 1 and 2 in section 154-2.3(a)(1) and (2) of this Part;
(2) the student’s history of language use in school and home or community;
(3) the individual evaluation of the student conducted in accordance with the procedures in section 200.4(b)(6) of this Title, which shall include assessments administered in the student’s home language; and
(4) information provided by the Committee on Special Education (CSE) as to whether the student’s disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
Based on the evidence reviewed, the LPT must make a recommendation as to whether the student may have second language acquisition needs or whether the student’s disability is the determinant factor affecting whether the student could demonstrate proficiency in English during Step 2 in section 154-2.3(a)(2). If the LPT recommends that the student does not have second language acquisition needs and therefore should not take the English language proficiency identification assessment to identify the student as an English language learner, such recommendation shall be referred to the school principal for review.
If, upon review, the school principal agrees with the recommendation of the LPT that the student is not an English Language Learner and will not take the English language proficiency identification assessment, the school principal shall inform the parent or person in parental relation of this recommendation, in the language or mode of communication the parent or person in parental relation best understands.
Upon receipt of a recommendation by the school principal, the Superintendent or his or her designee shall review the school principal’s recommendation and make a final determination to accept or reject the school principal’s recommendation within ten (10) days of receiving the school principal’s recommendation. If the Superintendent determines that the student is not an English Language Learner, notice of such determination shall be provided to the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands within five (5) days of such final determination.
If the LPT determines that the student with a disability may have second language acquisition needs, the student shall take the initial English language proficiency identification assessment. The CSE shall determine, in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title, whether the student shall take the assessment with or without testing accommodations or an alternate assessment as may be prescribed by the Commissioner.
Exit Criteria for Students with Disabilities.
Each school district will annually determine if a student with a disability who has been identified as an English Language Learner pursuant to Commissioner’s Regulations section 154-3.3 will continue to be identified as an English Language Learner.
Following the initial identification of a student with a disability as an English Language Learner, the CSE shall annually make an individual determination as to which of the following methods of assessment shall be used to determine if such student will continue to be identified as an English Language Learner:
(1) the annual English language proficiency assessment without the use of testing accommodations; or
(2) the annual English language proficiency assessment with appropriate testing accommodations to be provided in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title; or
(3) an alternate assessment as may be prescribed by the Commissioner.
The LPT and principal shall issue written recommendations, and the superintendent of schools shall issue a written determination, regarding the initial identification of ELL status for a student with a disability.
Parents/persons in parental relation must submit a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, in order for a principal to submit a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee for review and approval.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, substantial revisions were made to the proposed rule, as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above changes require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section of the previously published Rural Area Flexibility Analysis be revised to read as follows.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES
Initial and Reentry Process for Determination of English Proficiency.
School districts must form a Language Proficiency Team (LPT) to make recommendations regarding the initial assessment of ELL status for a student with a disability. The LPT shall include a school/district administrator; a certified teacher or related service provider with a bilingual extension and/or a certified teacher of English to Speakers of Other Languages; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent/person in parental relation. A qualified interpreter/translator of the language or mode of communication the parent/person in parental relation best understands shall be present at each LPT meeting.
Beginning in the 2015-16 school year, the LPT is responsible for recommending to the principal whether a student identified as having a disability may have second language acquisition needs or whether the student shall take the statewide English language proficiency identification assessment (i.e., the NYSITELL).
For students with disabilities who are subject to the initial and reentry identification process and determination of English language proficiency pursuant to Commissioner’s Regulations section 154-2.3(a), following the administration of Steps 1 and 2 and prior to the administration of Step 4 pursuant to Commissioner’s Regulations section 154-2.3(a), the following provisions shall apply:
For a student identified as having a disability, the Language Proficiency Team (LPT) shall make a recommendation as to whether there is evidence that the student may have second language acquisition needs. In making this recommendation, the LPT shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development, including, but not limited to:
(1) the results of Steps 1 and 2 in section 154-2.3(a)(1) and (2) of this Part;
(2) the student’s history of language use in school and home or community;
(3) the individual evaluation of the student conducted in accordance with the procedures in section 200.4(b)(6) of this Title, which shall include assessments administered in the student’s home language; and
(4) information provided by the Committee on Special Education (CSE) as to whether the student’s disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
Based on the evidence reviewed, the LPT must make a recommendation as to whether the student may have second language acquisition needs or whether the student’s disability is the determinant factor affecting whether the student could demonstrate proficiency in English during Step 2 in section 154-2.3(a)(2). If the LPT recommends that the student does not have second language acquisition needs and therefore should not take the English language proficiency identification assessment to identify the student as an English language learner, such recommendation shall be referred to the school principal for review.
If, upon review, the school principal agrees with the recommendation of the LPT that the student is not an English Language Learner and will not take the English language proficiency identification assessment, the school principal shall inform the parent or person in parental relation of this recommendation, in the language or mode of communication the parent or person in parental relation best understands.
Upon receipt of a recommendation by the school principal, the Superintendent or his or her designee shall review the school principal’s recommendation and make a final determination to accept or reject the school principal’s recommendation within ten (10) days of receiving the school principal’s recommendation. If the Superintendent determines that the student is not an English Language Learner, notice of such determination shall be provided to the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands within five (5) days of such final determination.
If the LPT determines that the student with a disability may have second language acquisition needs, the student shall take the initial English language proficiency identification assessment. The CSE shall determine, in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title, whether the student shall take the assessment with or without testing accommodations or an alternate assessment as may be prescribed by the Commissioner.
Exit Criteria for Students with Disabilities.
Each school district will annually determine if a student with a disability who has been identified as an English Language Learner pursuant to Commissioner’s Regulations section 154-3.3 will continue to be identified as an English Language Learner.
Following the initial identification of a student with a disability as an English Language Learner, the CSE shall annually make an individual determination as to which of the following methods of assessment shall be used to determine if such student will continue to be identified as an English Language Learner:
(1) the annual English language proficiency assessment without the use of testing accommodations; or
(2) the annual English language proficiency assessment with appropriate testing accommodations to be provided in accordance with the individualized education program (IEP) developed for such student pursuant to Part 200 of this Title; or
(3) an alternate assessment as may be prescribed by the Commissioner.
The LPT and principal shall issue written recommendations, and the superintendent of schools shall issue a written determination, regarding the initial identification of ELL status for a student with a disability.
Parents/persons in parental relation must submit a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, in order for a principal to submit a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee for review and approval.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, substantial revisions were made to the proposed rule, as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revised proposed rule amends the procedures for identifying and exiting students with disabilities as English Language Learners (ELL). 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 addition, Education Law section 4403 outlines the Department's and a school district's responsibilities regarding special education programs/ and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as Commissioner deems in their best interests.
In light of developments in research and best practices for ELL instruction, federal jurisprudence on civil rights obligations towards ELLs, concerns about the achievement gap between ELLs with disabilities, ELLs and non-ELLs in New York State, and concerns about over identification of ELLs with disabilities, the revised proposed rule improves identification and exit procedures for students with disabilities who are also English Language Learners.
According to the National Institute of Child Health it is estimated that 9% of all ELL students in U.S. public schools are identified as ELLs with disabilities. In New York State 19.6% of ELLs are classified with disabilities, and of which 80.4% have a home language of Spanish. In terms of disability classifications in New York State, 40% of ELLs with disabilities are classified with Speech Language Impairment, and 38% are classified with a Learning disability. According to the National Center for Education Statistics (NCES), the percentage distribution nationally of all children with a disability classification shows 36% are classified with a Learning Disability, and 21% with Speech Language Impairments. This data demonstrates the need to improve identification and exit procedures for ELLs with disabilities, as New York State significantly over identifies these students as compared to national statistics.
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.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on July 9, 2014, the State Education Department received the following comments:
COMMENT:
Approves of rule’s procedures for incoming and enrolled students with disabilities to determine whether the disability is the determining factor affecting a student’s ability to demonstrate proficiency in English, and procedures for determining whether a student with a disability should continue to receive English as a Second Language services.
DEPARTMENT RESPONSE:
No response is necessary as the comment is supportive, however, as discussed below, the Department has revised the proposed Subpart 154-3 Identification and exit procedures for students with disabilities.
COMMENT:
In accordance with guidelines submitted by the U.S. Department of Education on July 18, 2014, a Language Proficiency Team (LPT) or a Committee on Special Education (CSE) cannot make the determination that a student with disabilities should not participate in a State English Language Proficiency assessment. All students with disabilities must “be included in all general State assessment programs, including assessments described under section 1111 of the Elementary and Secondary Education Act (ESEA), with appropriate accommodations and alternate assessments, if necessary, as indicated in their respective IEPs.”
DEPARTMENT RESPONSE:
In response to public comment and guidance issued by the United States Department of Education on July 18, 2014, which clarified that all students with disabilities are required to be included in all general State and districtwide assessment programs including the English language proficiency assessment with appropriate accommodations and alternate assessments, the proposed Subpart 154-3 has been substantially revised to reflect the guidance.
COMMENT:
Revise the rule to provide for the opting out from ESL testing (NYSESLAT) of students with severe disabilities that are not language related who are alternately-assessed, similar to what is done with such students for the ELA and Math State examinations.
DEPARTMENT RESPONSE:
The Department has revised the proposed rule to clarify that the CSE shall annually make an individual determination regarding the method of assessment to be used to determine if a student with a disability will continue to be identified as ELL, including the use of an alternate assessment as may be prescribed by the Commissioner.
COMMENT:
It is not always readily apparent at time of initial entry whether or not a disability impedes a student’s ability to learn English. It is preferable to err in favor of providing English Language Learner (ELL) instruction for the vast majority of students with disabilities, then over time special education and English as a Second Language (ESL) educators, parents and students (where appropriate) can ascertain whether or not a disability is the main determinate of English language acquisition.
DEPARTMENT RESPONSE:
In situations where the Language Proficiency Team (LPT) is uncertain whether the disability is the determinant factor, the student should be identified as a student to take the English language proficiency assessment. However, when the LPT determines that the student with a disability has no second language acquisition needs, requiring that ELL instruction be provided to such students would not benefit them academically and would be an inefficient and non-cost effective use of school district fiscal and staff resources.
COMMENT:
The time for student placement when a disability is suspected should be extended. The 45-day period should begin after student placement, not the first day of school.
DEPARTMENT RESPONSE:
The 45-school day review period is not referenced in this rulemaking.
