EDU-40-13-00006-EP Duration of Competition in High School Athletics

10/2/13 N.Y. St. Reg. EDU-40-13-00006-EP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 40

October 02, 2013

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-40-13-00006-EP

Filing No. 923

Filing Date. Sept. 17, 2013

Effective Date. Sept. 17, 2013

Duration of Competition in High School Athletics

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of section 135.4 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101 (not subdivided), 207 (not subdivided), 305(1), (2), 803 (not subdivided), and 3204(2) and (3)

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The proposed amendment will eliminate the one additional season restriction in Commissioner's Regulations § 135.4(c)(7)(ii)(d) to allow students with disabilities to participate in a non-contact sport for one or more additional seasons if they meet the criteria for a waiver as specified in the regulation.

Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the December 16-17, 2013 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the December meeting, would be January 1, 2014, the date a Notice of Adoption would be published in the State Register. However, emergency action to adopt the proposed rule immediately is necessary for the preservation of the general welfare to ensure that school districts and affected students are given sufficient and timely notice of the availability of a waiver to allow for participation in senior high school non-contact athletic competition during the 2013-2014 school year by students with disabilities who have previously obtained a waiver pursuant to such provision, and thereby enable them to prepare for and timely implement these requirements.

It is anticipated that the emergency rule will be presented to the Board of Regents for adoption as a permanent rule at the December 16-17, 2013 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act for proposed rulemakings.

Subject:

Duration of competition in high school athletics.

Purpose:

To eliminate the one additional season limit on waivers for students with disabilities to participate in athletic competition.

Text of emergency/proposed rule:

Clause (d) of subparagraph (ii) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education is amended, effective September 17, 2013, as follows:

(d) Waiver from the age requirement and four-year limitation for interschool athletic competition for students with disabilities in senior high school grades 9, 10, 11, and 12. For purposes of this clause, the term non-contact sport shall include swimming and diving, golf, track and field, cross country, rifle, bowling, gymnastics, skiing and archery, and any other such non-contact sport deemed appropriate by the Commissioner. A student with a disability, as defined in section 4401 of the Education Law, who has not yet graduated from high school may be eligible to participate in a senior high school noncontact athletic competition [for a fifth year] under the following limited conditions:

(1) such student must apply for and be granted a waiver to the age requirement and four-year limitation prescribed in subclause (b)(1) of this subparagraph. A waiver shall only be granted upon a determination by the superintendent of schools or chief executive officer of the school or school system, as applicable, that the given student meets the following criteria:

(i) such student has not graduated from high school as a result of his or her disability delaying his or her education for one year or more;

(ii) such student is otherwise qualified to compete in the athletic competition for which he or she is applying for a waiver and the student must have been selected for such competition in the past;

[(iii) such student has not already participated in an additional season of athletic competition pursuant to a waiver granted under this subclause;]

[(iv)] (iii) such student has undergone a physical evaluation by the school physician, which shall include an assessment of the student’s level of physical development and maturity, and the school physician has determined that the student’s participation in such competition will not present a safety or health concern for such student; and

[(v)] (iv) the superintendent of schools or chief executive officer of the school or school system has determined that the given student’s participation in the athletic competition will not adversely affect the opportunity of the other students competing in the sport to successfully participate in such competition.

(2) Such student’s participation in the additional season of such athletic competition shall not be scored for purposes of such competition.

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 15, 2013.

Text of rule and any required statements and analyses may be obtained from:

Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Ken Slentz, Deputy Commissioner P-12 Education, State Education Department, State Education Building 2M, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

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 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 sections 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 803 provides the Board of Regents with overall authority over physical education instruction in schools.

Education Law section 3204(2) and (3) relates to compulsory education.

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 the age and four-year duration of competition limitations for athletic competition by students with disabilities.

3. NEEDS AND BENEFITS:

Section 135.4(c)(7)(ii)(b)(1), relating to duration of competition, generally provides, with certain exceptions, that a student shall be eligible for athletic competition in a sport during each of four consecutive seasons of such sport commencing with the student's entry into ninth grade and prior to graduation, and shall be eligible for interschool competition in grades 9, 10, 11 and 12 until the last day of the school year in which the student attains the age of 19.

Section 135.4(c)(7)(ii)(d) currently provides a process for obtaining a waiver from the age requirement and four-year limitation for athletic competition to allow students with disabilities, who would otherwise not be able to participate in interscholastic athletic competition due to their age and/or years in school, to participate in a non-contact athletic sport for an additional season.

The proposed amendment will eliminate the one additional season restriction by allowing students with disabilities to participate in a non-contact sport for one or more additional seasons if they meet all the other specified criteria for this waiver. This amendment will advance initiatives of inclusion by offering students with disabilities continued socialization with teammates and continued opportunity to develop the skills and abilities associated with such students' participation in such sports.

4. COSTS:

(a) Costs to State government: none.

(b) Costs to local government: It is anticipated that the waiver(s) provided by the proposed amendment will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

(c) Costs to private regulated parties: For the same reasons as discussed in (b) above, it is anticipated that costs to private schools will be minimal and capable of being absorbed using existing staff and resources.

(d) Costs to the regulating agency for implementation and administration of this rule: It is anticipated that costs to the State Education Department to implement and enforce the regulations will be minimal and capable of being absorbed by existing staff.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments, but merely eliminates the one additional season restriction for participation in a non-contact sport by students with disabilities pursuant to a waiver, to allow such students to participate for one or more additional seasons.

6. PAPERWORK:

This proposed amendment does not impose any additional paperwork requirements, but merely eliminates the one additional season restriction for participation in a non-contact sport by students with disabilities pursuant to a waiver, to allow such students to participate for one or more additional seasons.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or federal regulations.

8. ALTERNATIVES:

There were no significant alternatives and none were considered.

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 rule by its effective date.

Regulatory Flexibility Analysis

Small Businesses:

The proposed amendment is necessary to implement educational policy as determined by the Board of Regents by permitting, under certain specified circumstances, a waiver from the age requirement and four-year limitation for interschool athletic competition to students with disabilities in senior high school grades 9, 10, 11, and 12 who seek to participate in one or more additional seasons of interschool non-contact sport competition. 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 695 school districts within the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment does not impose any additional compliance requirements, but merely eliminates the additional season restriction for participation in a non-contact athletic sport by students with disabilities pursuant to a waiver, to allow such students to participate for one or more additional seasons.

3. PROFESSIONAL SERVICES:

The proposed amendment imposes no additional professional service requirements.

4. COMPLIANCE COSTS:

The proposed amendment does not impose any significant costs, but merely eliminates the one additional season restriction for participation in a non-contact sport by students with disabilities pursuant to a waiver, to allow such students to participate for one or more additional seasons. It is anticipated that the waiver provided by the proposed amendment will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any technological requirements on school districts. Economic feasibility is addressed under the Costs section above.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement educational policy as determined by the Board of Regents by permitting, under certain specified circumstances, a waiver from the age requirement and four-year limitation for interschool athletic competition to students with disabilities who seek to participate in one or more additional seasons of non-contact athletic competition.

The proposed amendment has been carefully drafted to address the specific circumstances for granting a waiver and it is anticipated that the waiver will be exercised in limited circumstances, given the restrictions on eligibility for such waiver and the specific circumstances the proposed amendment is intended to address, and that any compliance requirements and costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them 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.

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 reporting, recordkeeping or other compliance requirements, but merely eliminates the one additional season restriction for participation in non-contact athletic competition by students with disabilities pursuant to a waiver, to allow such students to participate for one or more additional seasons.

The proposed amendment imposes no additional professional service requirements.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any significant costs, but merely eliminates the one additional season restriction for participation in non-contact athletic competition by students with disabilities pursuant to a waiver, to allow such students to participate for one or more additional seasons. It is anticipated that the waiver provided by the proposed amendment will be exercised in limited circumstances, given the restrictions on eligibility for such wavier and the specific circumstances the proposed amendment is intended to address, and that any costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement educational policy as determined by the Board of Regents by permitting, under certain specified circumstances, a waiver from the age requirement and four-year limitation for interschool athletic competition to students with disabilities who seek to participate in one or more additional seasons of non-contact athletic competition. The proposed amendment does not directly impose any additional compliance requirements or costs on school districts in rural areas.

The proposed amendment has been carefully drafted to address the specific circumstances for granting a waiver and it is anticipated that the waiver will be exercised in limited circumstances, given the restrictions on eligibility for such waiver and the specific circumstances the proposed amendment is intended to address, and that any compliance requirements and costs associated with the proposed amendment will be minimal and capable of being absorbed by existing staff, who currently are responsible for making similar decisions under existing regulations relating to a student's ability to participate in a sport. Because the Regents policy upon which the proposed amendment is based applies to all school districts in the State, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools 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 is necessary to implement educational policy as determined by the Board of Regents by permitting, under certain specified circumstances, a waiver from the age requirement and four-year limitation for interschool athletic competition to students with disabilities in senior high school grades 9, 10, 11, and 12 who seek to participate in one or more additional seasons of interschool non-contact sport competition. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment 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.