Specific reasons underlying the finding of necessity:
The proposed rule would extend certain of the provisions in section 100.2(ee) of the Commissioner’s Regulations through the 2014-2015 school year, in order to provide continued flexibility to school districts in the provision of Academic Intervention Services (AIS) for those students who performed below Level 3 on the grade 3-8 ELA and math assessments but at or above cut scores established by the Regents.
Since the Board of Regents meets at monthly intervals, the earliest the proposed amendment could be adopted by regular action after publication of a Notice of Proposed Rule Making and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act (SAPA) section 202 would be the December 15-16, 2014 Regents meeting. Because SAPA section 203(1) provides that an adopted rule may not become effective until a Notice of Adoption is published in the State Register, the earliest the proposed amendment could become effective if adopted at the December Regents meeting, is December 31, 2014. However, school districts need to know now what the modified requirements for AIS will be so that they may plan and timely implement AIS for the 2014-2015 school year.
Emergency Action is necessary for the preservation of the general welfare to immediately establish modified requirements for the provision of Academic Intervention Services for the 2014-2015 school year, for purposes of providing districts with flexibility to address the change in student rates of proficiency on the 2013 grades 3-8 assessments in English Language Arts and mathematics, and thereby ensure the timely implementation of the modified AIS requirements by school districts in the 2014-2015 school year.
It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the December 15-16, 2014 Regents meeting, which is the first scheduled Regents meeting after publication of the proposed rule in the State Register and expiration of the 45-day public comment period prescribed in the State Administrative Procedure Act for State agency rule makings.
Subject:
Academic Intervention Services (AIS).
Purpose:
To establish modified requirements for AIS during the 2014-2015 school year.
Text of emergency/proposed rule:
Paragraph (2) of subdivision (ee) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective September 16, 2014, as follows:
(2) Requirements for providing academic intervention services in grade three to grade eight. Schools shall provide academic intervention services when students:
(i) score below:
(a) the State designated performance level on one or more of the State elementary assessments in English language arts, mathematics or science, provided that for the [2013-2014] 2014-2015 school year only, the following shall apply:
(1) those students scoring below a scale score specified in subclause (3) of this clause shall receive academic intervention instructional services; and
(2) those students scoring at or above a scale score specified in subclause (3) of this clause but below level 3/proficient shall not be required to receive academic intervention instructional and/or student support services unless the school district, in its discretion, deems it necessary. Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the [2013-2014] 2014-2015 school year to students who scored above a scale score specified in subclause (3) of this clause but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in [2012-2013] 2013-2014, and shall no later than [November 1, 2013] November 1, 2014 either post to its website or distribute to parents in writing a description of such process;
(3) . . .
(b) . . .
(ii) . . .
(iii) . . .
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire December 14, 2014.
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
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:
45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 empowers the Board of Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.
Education Law section 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education.
Education law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.
Education law section 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of education.
Education Law section 3204(3) provides for the courses of study in the public schools.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement policy enacted by the Board of Regents relating to academic intervention services (AIS).
3. NEEDS AND BENEFITS:
In 2013, the Regents adopted amendments to Commissioner’s Regulations section 100.2(ee) [EDU-40-13-00005-EP, State Register October 2, 2014; EDU-40-13-00005-A, State Register December 31, 2013] that provided flexibility to districts in the provision of Academic Intervention Services (AIS) for the 2013-2014 school year, in recognition of the fact that the State assessments administered to New York students in Spring 2013 were the first that measured the progress of students in meeting the expectations of the Common Core Learning Standards (CCLS). The proposed amendment would extend similar flexibility in the provision of AIS for the 2014-2015 school year.
At the Board of Regents July 2013 meeting, Department staff discussed with the Board the implications for the provision by school districts of AIS as a result of the substantial decrease in the percentage of students who demonstrated the knowledge and skills necessary to meet grade level Common Core Learning Standards (CCLS) relative to the percentage of students demonstrating this against the 2005 standards.
To ensure that existing support services, including Academic Intervention Services (AIS), remain relevant and appropriate as New York implements the CCLS, the Regents directed the Department to develop proposed amendments to Commissioner’s Regulations to provide flexibility in the provision of AIS.
Historically, students who have scored below proficient (Level 3) on State assessments in English language arts or mathematics have been required to receive AIS. However, proficiency standards on the 2012 and the 2013 state assessments could not be directly compared because the 2012 tests were designed to measure different learning standards than the 2013 Common Core tests. Therefore, the Department determined the scale scores for each respective year that was associated with students who scored at the same percentile rank on the two assessments. The Department used these percentile ranks as the basis for determining which students must be provided AIS during the 2013-2014 transition year to ensure that the change in proficiency rates would not result in a significant increase in the percentage of students who must receive these services. The cut scores that the Department used resulted in districts being required to provide AIS to approximately the same percentages of students Statewide in the 2013-14 school year as received AIS in the 2012-13 school year. This was analogous to the action taken by the Regents in July 2010 to address the raising of the cut scores on the 2010 Grade 3-8 English language arts and mathematics assessments.
Under the approved regulation, districts were required to establish a policy to determine what services, if any, to provide in the 2013-14 school year to students who scored above the transitional cut scores established by the Department but below proficiency on the 2013 assessments.
Specifically, the amendment provided that for the 2013-2014 school year only:
• Students who scored at or below the specified cut points for Grades 3-8 English Language Arts and mathematics must receive academic intervention instructional services.
• Students who scored at or above the specified cut points but below the 2013 level 3/proficient cut points would not be required to receive academic intervention instructional and/or student support services unless the school district deemed it necessary.
• Each school district developed and maintained on file a uniform process by which the district determined whether to offer AIS during the 2013-14 school year to students who scored at or above the specified cut points but below the level 3/proficient on grade 3-8 English Language Arts or mathematics State assessments in 2013-14.
• Each school by November 1, 2013 either posted a description of this process to its Website or distributed to parents in writing a description of such process.
The proposed amendment would extend the 2013-2014 amendment to the Commissioner's Regulations through the 2014-15 school year to continue flexibility in the provision of Academic Intervention Services.
4. COSTS:
(a) Costs to State government: None.
(b) Costs to local government: None.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
The proposed amendment extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year. The proposed amendment will not impose any additional costs but instead will allow for continued flexibility and reduced costs to school districts in providing AIS.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments but merely extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in providing AIS.
6. PAPERWORK:
The proposed amendment does not impose any specific recordkeeping, reporting or other paperwork requirements.
7. DUPLICATION:
The proposed amendment does not duplicate existing State or federal regulations.
8. ALTERNATIVES:
There were no significant alternatives and none were considered. The proposed amendment is necessary to implement Regents policy to provide flexibility to school districts in providing AIS during the 2014-2015 school year.
9. FEDERAL STANDARDS:
There are no related federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment extends to the 2014-2015 school year the modified requirements for the provision of Academic Intervention Services (AIS) previously implemented for the 2013-2014 school year, to allow for continued flexibility to school districts in providing AIS.
The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Government:
1. EFFECT OF RULE:
The proposed amendment applies to each of the 689 public school districts in the State.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements upon local governments but merely extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year in recognition of the fact that the State assessments administered to New York students in Spring 2013 were the first that measured the progress of students in meeting the expectations of the Common Core Learning Standards (CCLS). The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in providing AIS.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional service requirements on school districts.
4. COMPLIANCE COSTS:
The proposed amendment extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year. The proposed amendment will not impose any additional costs but instead will allow for flexibility and reduced costs to school districts in providing AIS.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any technological requirements or costs on school districts.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement Regents policy to provide flexibility to school districts in providing AIS during the 2014-2015 school year. The proposed amendment does not impose any additional compliance requirements or costs on local governments but merely extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year, to allow for continued flexibility to school districts in providing AIS.
7. LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional compliance requirements upon rural areas but merely extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year in recognition of the fact that the State assessments administered to New York students in Spring 2013 were the first that measured the progress of students in meeting the expectations of the Common Core Learning Standards (CCLS). The proposed amendment will provide flexibility to school districts in providing AIS services.
The proposed amendment imposes no additional professional services requirements on school districts in rural areas.
3. COMPLIANCE COSTS:
The proposed amendment extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year. The proposed amendment will not impose any additional costs but instead will allow for flexibility and reduced costs to school districts in providing AIS.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment does not impose any additional compliance requirements or costs on local governments but merely extends to the 2014-2015 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 school year in recognition of the fact that the State assessments administered to New York students in Spring 2013 were the first that measured the progress of students in meeting the expectations of the Common Core Learning Standards (CCLS).
The proposed amendment is necessary to implement Regents policy to provide flexibility to school districts in providing AIS during the 2014-2015 school year. Because the Regents policy upon which the proposed amendment is based uniformly applies to all school districts throughout the State, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt school districts in rural areas from coverage by the proposed amendment.
5. RURAL AREA PARTICIPATION:
Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The proposed amendment extends to the 2014-2015 school year the modified requirements for the provision of Academic Intervention Services (AIS) previously implemented for the 2013-2014 school year, to allow for continued flexibility to school districts in providing AIS. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
