PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 100.2(ee) of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 305(1) and (2), 308 (not subdivided), 309 (not subdivided) and 3204(3)
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The State Education Department is proposing modified requirements for the provision of Academic Intervention Services (AIS) during the 2010-2011 school year based on several factors, including: (1) the change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency; (2) the fact that such changes were not announced to the field until late July; and (3) the fiscal impact that school districts may experience because of the increase in the number of students required to receive AIS. The proposed requirements would hold districts harmless from the expected fiscal impact of the change in cut scores. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.
Specifically, the proposed amendment provides that for the 2010-2011 school year only:
(1) Students scoring at or below a scale score of 650 must receive academic intervention instructional services.
(2) Students scoring above a scale score of 650 but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-11 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-10.
(4) In recognition of the effects on school districts of a change in cut scores for such school year, a waiver is given for the 2010-2011 school year from the requirement that school districts review and revise their description of AIS based on student performance results.
The proposed amendment was adopted as an emergency rule at the July 2010 Regents meeting, effective July 27, 2010. A Notice of Proposed Rule Making was published in the State Register on August 4, 2010.
The proposed amendment has been adopted as a permanent rule at the October 2010 Regents meeting. Pursuant to the State Administrative Procedure Act, the earliest the adopted rule can become effective is after its publication in the State Register on November 10, 2010. However, the emergency rule which took effect on July 27, 2010 will expire on October 24, 2010. The expiration of the emergency rule would disrupt administration of the modified requirements for Academic Intervention Services in the 2010-2011 school year.
Therefore, a second emergency action is necessary for the preservation of the general welfare in order to ensure that the emergency rule adopted at the July 2010 Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule, in order to avoid disruption to the administration of the modified requirements for Academic Intervention Services in the 2010-2011 school year.
Subject:
Academic Intervention Services.
Purpose:
To establish modified requirements for AIS during the 2010-2011 school year.
Text of emergency rule:
Subdivision (ee) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective October 25, 2010, as follows:
(ee) Academic intervention services.
(1) Requirements for providing academic intervention services (AIS) in kindergarten to grade three. Schools shall provide academic intervention services to students in kindergarten to grade three when such students:
(i) are determined, through a district-developed or district-adopted procedure that meets State criteria and is applied uniformly at each grade level, to lack reading readiness based on an appraisal of the student, including his/her knowledge of sounds and letters; or
(ii) are determined, through a district-developed or district-adopted procedure applied uniformly at each grade level, to be at risk of not achieving the State designated performance level in English language arts and/or mathematics. This district procedure may also include diagnostic screening for vision, hearing and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible limited English proficiency or possible disability pursuant to Part 117 of this Title.
(2) Requirements for providing academic intervention services in grade four to grade eight. Schools shall provide academic intervention services when students:
(i) score below the State designated performance level on one or more of the State elementary assessments in English language arts, mathematics, social studies or science; provided that for the 2010-2011 school year only, the following shall apply for the English language arts and mathematics assessments:
(a) those students scoring at or below a scale score of 650 shall receive academic intervention instructional services; and
(b) those students scoring above a scale score of 650 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 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and shall no later than the commencement of the first day of instruction either post to its Website or distribute to parents in writing a description of such process.
(ii) are limited English proficient (LEP) and are determined, through a district-developed or district-adopted procedure uniformly applied to LEP students, to be at risk of not achieving State learning standards in English language arts, mathematics, social studies and/or science, through English or the student's native language. This district procedure may also include diagnostic screening for vision, hearing, and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible disability pursuant to Part 117 of this Title; or
(iii) are determined, through a district-developed or district-adopted procedure uniformly applied, to be at risk of not achieving State standards in English language arts, mathematics, social studies and/or science. This district procedure may also include diagnostic screening for vision, hearing, and physical disabilities pursuant to article 19 of the Education Law, as well as screening for possible limited English proficiency or possible disability pursuant to Part 117 of this Title.
(3) . . .
(4) Description of academic intervention services.
(i) . . .
(ii) The description of academic intervention services shall be approved by each local board of education by July 1, 2000. In the New York City School District, the New York City Board of Education may designate that the plans be approved by the chancellor or his designee or by community school boards for those schools under their jurisdiction. Beginning July 1, 2002 and every two years thereafter, each school district shall review and revise its description of academic intervention services based on student performance results; except that this requirement shall not apply to student performance results for the 2010-2011 school year, which shall be excluded from such review.
(iii) . . .
(iv) . . .
(5) . . .
(6) . . .
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-31-10-00004-P, Issue of August 4, 2010. The emergency rule will expire December 20, 2010.
Text of rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 473-8296, email: legal@mail.nysed.gov
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:
The proposed amendment would establish modified requirements for the provision of AIS during the 2010-2011 school year based on several factors, including: (1) the change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency; (2) the fact that such changes will not be announced to the field until late July or early August; and (3) the fiscal impact that school districts may experience because of the increase in the number of students required to receive AIS. The purpose of the proposed amendment is to provide flexibility to school districts in providing AIS during the 2010-2011 school year in order to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.
Specifically, the proposed amendment provides that for the 2010-2011 school year only:
(1) Students scoring at or below a scale score of 650 must receive academic intervention instructional services.
(2) Students scoring above a scale score of 650 but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-11 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-10, and shall post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
(4) In recognition of the effects on school districts of a change in cut scores for such school year, a waiver is given for the 2010-2011 school year from the requirement that school districts review and revise their description of AIS based on student performance results.
COSTS:
(a) Costs to State government: None.
(b) Costs to local government: The proposed amendment establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. School districts may incur some costs associated with distributing to parents of students a written description of the district's process for determining whether AIS will be offered to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010. However, the proposed amendment allows school districts to post the description on its Website in lieu of distributing to parents, and it is anticipated that any associated costs would be minimal and can be absorbed using existing district staff and resources. More importantly, any such costs would be more than offset by the reduction in costs to schools districts resulting from implementation of the modified AIS requirements in the 2010-2011 school year.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. As part of the modified requirements, the proposed amendment requires each school district to develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
6. PAPERWORK:
The proposed amendment requires each school district to develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
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
1. EFFECT OF RULE:
The proposed amendment applies to each school district within the State.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. As part of the modified requirements, the proposed amendment requires each school district to develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
Specifically, the proposed amendment provides that for the 2010-2011 school year only:
(1) Students scoring at or below a scale score of 650 must receive academic intervention instructional services.
(2) Students scoring above a scale score of 650 but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-11 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-10, and shall post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
(4) In recognition of the effects on school districts of a change in cut scores for such school year, a waiver is given for the 2010-2011 school year from the requirement that school districts review and revise their description of AIS based on student performance results.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional service requirements on school districts.
4. COMPLIANCE COSTS:
The proposed amendment establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. School districts may incur some costs associated with distributing to parents of students a written description of the district's process for determining whether AIS will be offered to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010. However, the proposed amendment allows school districts to post the description on its Website in lieu of distributing to parents, and it is anticipated that any associated costs would be minimal and can be absorbed using existing district staff and resources. More importantly, any such costs would be more than offset by the reduction in costs to schools districts resulting from implementation of the modified AIS requirements in the 2010-2011 school year.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed rule does not impose any technological requirements on school districts. Economic feasibility is addressed under the Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The purpose of the proposed amendment is to provide flexibility to school districts in providing academic intervention services (AIS) during the 2010-2011 school year in order to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.
7. SMALL BUSINESS AND 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 establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. As part of the modified requirements, the proposed amendment requires each school district to develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
Specifically, the proposed amendment provides that for the 2010-2011 school year only:
(1) Students scoring at or below a scale score of 650 must receive academic intervention instructional services.
(2) Students scoring above a scale score of 650 but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2010-11 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-10, and shall post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
(4) In recognition of the effects on school districts of a change in cut scores for such school year, a waiver is given for the 2010-2011 school year from the requirement that school districts review and revise their description of AIS based on student performance results.
The proposed rule imposes no additional professional services requirements on school districts in rural areas.
3. COMPLIANCE COSTS:
The proposed amendment establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. School districts may incur some costs associated with distributing to parents of students a written description of the district's process for determining whether AIS will be offered to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010. However, the proposed amendment allows school districts to post the description on its Website in lieu of distributing to parents, and it is anticipated that any associated costs would be minimal and can be absorbed using existing district staff and resources. More importantly, any such costs would be more than offset by the reduction in costs to schools districts resulting from implementation of the modified AIS requirements in the 2010-2011 school year.
4. MINIMIZING ADVERSE IMPACT:
The purpose of the proposed amendment is to provide flexibility to school districts in providing academic intervention services (AIS) during the 2010-2011 school year in order to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.
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 establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency.
The proposed rule will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the rule that it will have a positive impact, or 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.
