Home » 2012 Issues » November 21, 2012 » EDU-27-12-00011-E Elementary and Secondary Education Act (ESEA) Flexibility and School District Accountability
EDU-27-12-00011-E Elementary and Secondary Education Act (ESEA) Flexibility and School District Accountability
11/21/12 N.Y. St. Reg. EDU-27-12-00011-E
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 47
November 21, 2012
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY RULE MAKING
I.D No. EDU-27-12-00011-E
Filing No. 1095
Filing Date. Nov. 06, 2012
Effective Date. Nov. 10, 2012
Elementary and Secondary Education Act (ESEA) Flexibility and School District Accountability
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 100.18; and amendment of sections 100.2(m), 100.17, 120.3 and 120.4 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101(not subdivided), 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1) and (2), 309(not subdivided) and 3713(1) and (2)
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The purpose of the proposed rule making is to implement New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request.
On February 28, 2012, the New York State Education Department submitted to the United States Education Department (USDE) an ESEA Flexibility Waiver Request. On May 29, 2012, the USDE Secretary, based upon his authority to issue waivers pursuant to section 9401 of the ESEA, approved the Waiver Request.
The proposed rule making adds a new section 100.18 and amends Commissioner's Regulations sections 100.2(m), 100.17, 120.3 and 120.4 to align the Commissioner's Regulations with the approved ESEA Flexibility Waiver, and addresses the Regents Reform Agenda and New York State's updated accountability system. Adoption of the proposed amendment is necessary to ensure a seamless transition to the revised school and school district accountability plan under the Waiver and will allow school districts the option to demonstrate improvements, using options that closely align with the federal school turnaround principles described in Race to the Top and School Improvement Grant requirements.
The proposed amendment was adopted as an emergency rule at the June 18-19, 2012 Regents meeting, effective July 1, 2012. At the September 10-11, 2012 Regents meeting, the June emergency rule was repealed and the proposed rule was revised and adopted as a second emergency action, effective September 11, 2012.
The proposed rule has now been adopted as a permanent rule at the November 5-6, 2012 Regents meeting. Pursuant to SAPA § 203(1), the earliest effective date of the proposed amendment, if adopted at the November Regents meeting, would be November 21, 2012, the date a Notice of Adoption will be published in the State Register. However, the September emergency rule will expire on November 9, 2012, 60 days after its filing with the Department of State on September 11, 2012. A lapse in the rule's effective date will disrupt implementation of school/school district accountability requirements for the 2012-2013 school year pursuant to the approved ESEA Flexibility Waiver and statutory requirements. Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed rule adopted by emergency action at the June Regents meeting, and revised and adopted by emergency action at the September Regents meeting, remains continuously in effect until the effective date of its permanent adoption.
Subject:
Elementary and Secondary Education Act (ESEA) Flexibility and school district accountability.
Purpose:
To implement New York State's approved ESEA Flexibility Waiver.
Substance of emergency rule:
The Commissioner of Education proposes to add section 100.18 and amend sections 100.2(m), 100.17, 120.3 and 120.4 of the Commissioner’s Regulations, relating to Elementary and Secondary Education Act (ESEA) Flexibility and school and school district accountability. On May 29, 2012, the Secretary for the United State Department of Education, based upon his authority to issue waivers pursuant to section 9401 of the ESEA, approved New York State's ESEA Flexibility Waiver Request.
The proposed rule implements the approved Waiver Request and was adopted as an emergency rule at the June 18-19, 2012 Regents meeting. At the September 10-11, 2012 Regents meeting, the June emergency rule was repealed, and the proposed rule was revised and adopted as an emergency rule, effective September 11, 2012. The September emergency rule expired on November 9, 2012. At the November 5-6, 2012 Regents meeting, the proposed rule was adopted as a permanent rule, effective November 28, 2012, and also adopted as an emergency rule, effective November 10, 2012 to ensure that the emergency rule remains continuously in effect until the effective date of the rule's permanent adoption.
The following is a summary of the provisions of the November emergency rule:
• 100.18 ESEA Accountability System – this new section relates to the specific revisions necessary to conform Commissioner’s Regulations to New York’s updated accountability system, as a result of the approved ESEA Flexibility Request, and includes the following:
• Subdivision (a) Applicability states that the provisions of section 100.18 are applicable, in lieu of specified paragraphs of section 100.2(p) of the Commissioner's Regulations, during the period of the Elementary and Secondary Education Act (ESEA) waiver, and any revisions and extensions thereof, except as otherwise provided in section 100.18.
• Subdivision (b) Definitions defines various terms used in the section, including performance levels that incorporate measures of growth at the elementary/middle-level and college and career readiness standards at the high school level.
• Subdivision (c) Procedure for Registration of Public Schools provides the procedures for the registration of new schools and determination of their accountability status.
• Subdivision (d) provides that the registration of a public school remains in effect until revoked by the Board of Regents or until a school is closed by a school district.
• Subdivision (e) System of Accountability for student success requires the Commissioner to annually review the performance of each school district, public school, and charter school in the State and make Adequate Yearly Progress determinations regarding the performance of their accountability groups in elementary/middle and high school ELA and mathematics, elementary/middle level science and graduation rate.
• Subdivision (f) Adequate Yearly Progress provides the rules for making Adequate Yearly Progress determinations.
• Subdivision (g) Differentiated accountability for school districts provides the process by which schools are identified as Priority Schools, Focus Schools, or Schools Requiring a Local Assistance Plan and districts are identified as Focus Districts. The subdivison also specifies the requirement for parental and public notification of such designations.
• Subdivision (h) Interventions specifies the interventions that occur in identified schools and districts; including the appointment of an Integrated Intervention Team and district and/or school participation in a diagnostic review; and development and implementation of a District Comprehensive Improvement Plan or a Local Assistance Plan or a School Comprehensive Education Plan. The subdivison further specifies the requirements for such plans, including the requirement that each Priority School implement a whole school reform model no later than the beginning of the 2014-2015 school year.
• Subdivision (i) Removal from accountability designation provides the procedures by which a public school or a charter school may be removed from Priority or Focus status and a school district may be removed from Focus District status.
• Subdivision (j) Public school, school district and charter school performance criteria establishes the Performance Criteria (Elementary-Middle Level and High School English language arts and mathematics, Elementary-Middle Level science and graduation rate) used to make school and school district accountability determinations; the Annual Measurable Objectives for English language arts, mathematics, and science; and the goals and progress targets for the four year and five year graduation rate cohorts. The subdivison also defines the annual high school cohort, the annual high school alternative cohort, and the graduation rate cohorts.
• Subdivision (k) Identification of schools for public school registration review specifies the processes by which schools will be identified for registration review, including special provisions for transfer high schools and schools in Special Act School Districts.
• Subdivision (l) Public school registration review specifies the actions that occur when schools are identified for registration review, including:
• notification by the Commissioner to the district and district notification to parents and the public;
• appointment by the Commissioner of an Integrated Intervention Team to make recommendations to the Commissioner as to whether the school shall continue to implement its current improvement plan, as modified by recommendations of the integrated intervention team; implement a new Comprehensive Improvement Plan, which may contain a new whole school reform model; or be phased out or closed;
• requirement that after the Commissioner approves or modifies and approves the recommendations of the Integrated Intervention Team, the district develops and implement a plan based on the recommendations.
This subdivision also establishes the process by which the Board of Regents may revoke the registration of a school and specifies that the Commissioner shall develop a plan to ensure that the educational welfare of the pupils of the school is protected and require that the school district implement it.
• Subdivision (m) Removal of schools from registration review, school phase-out or closure explains the process by which schools may be removed from registration review, including schools that are being redesigned as part of an approved District Comprehensive Improvement Plan.
• 100.2(m) Public reporting requirements for the Local Assistance Plan – revisions to this section relate to replacing the reference to the overview of school performance and instead reference the New York State Report Card. In addition, 100.2(m)(6) and (7) relating to the requirements for a Local Assistance Plan have been revised and incorporated into section 100.18.
• 100.17 Distinguished Educator Program – revisions to this section relate to replacing the reference to schools designated for improvement, corrective action or restructuring and instead referencing schools designated as Priority or Focus.
• 120.3 Public School Choice – revisions to this section relate to replacing the requirement for schools designated for improvement, corrective action or restructuring to offer public school choice and instead require it be offered to schools designated as Priority or Focus.
• 120.4 Supplemental Education Services (SES) – revisions to this section relate to New York no longer requiring districts to offer SES or set aside a portion of their Title I allocation to pay for SES. The revisions clarify that districts can choose to offer SES, and pay for the services using other funding resources.
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-27-12-00011-EP, Issue of July 3, 2012. The emergency rule will expire January 4, 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, (518) 474-6400, email: legal@mail.nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.
Education Law section 207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on Department.
Education Law section 210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.
Education Law section 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Education Law section 305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents. Section 305(20) provides Commissioner shall have such further powers and duties as charged by Regents.
Education Law section 309 charges Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.
Education Law section 3713(1) and (2) authorize State and school districts to accept federal law making appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.
2. LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above statutory authority and is necessary to implement Regents policy relating to public school and district accountability.
3. NEEDS AND BENEFITS:
The rule is necessary to conform Commissioner's Regulations to New York's Elementary and Secondary Education Act (ESEA) Flexibility Waiver (New York’s updated accountability system), as approved by the U.S. Department of Education Secretary on May 29, 2012, and address the Regents Reform Agenda. The State and local educational agencies (LEAs), including school districts and charter schools, are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The rule will ensure a seamless transition to the revised accountability plan as authorized under the approved Waiver, and provide school districts with opportunity to demonstrate improvements using options that closely align with federal school turnaround principles described in Race to the Top and the School Improvement Grant requirements.
4. COSTS:
Cost to the State:
None.
Costs to local government:
The rule does not generally impose any new costs, but rather requires, in some instances, that LEAs spend an amount equal to a percentage of their Title I, Title IIA, and Title II funds on specific programs and activities. The rule also provides LEAs with additional flexibility in how they use program funds.
Based upon either a LEA’s choice to implement flexibilities granted by the rule and/or the requirements described in the rule to implement certain activities based upon a school or LEA’s accountability status, there may be some associated costs. For LEAs with schools receiving Title I, IIA or III funding, these funds may be used to pay the associated costs. LEAs with Title I funded schools that are designated as Priority or Focus, will also be required to set-aside 5-15% of their Title I, IIA, III funding to implement programs and services in Priority and Focus Schools chosen from a menu of program and services established by the Commissioner.
In some instances, LEAs newly identified as Focus Districts with schools that are designated as Priority or Focus that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources.
In other instances, LEAs and their schools will be designated as in Good Standing, when under the present accountability system these LEAs and schools might otherwise have been designated as in improvement, corrective action or restructuring. In these cases, LEAs may incur cost savings as they will no longer be required to participate in site visits or in the other required interventions for LEAs and districts with such designations.
Because of the number of LEAs and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from LEA-to-LEA, as well as school-to-school, depending on the school and LEA designation, the LEAs’ choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.
Cost to private regulated parties:
None.
Cost to regulating agency for implementation and continued administration of this rule:
None.
5. LOCAL GOVERNMENT MANDATES:
The rule is necessary to assist school districts to be able to meet the provisions of the Waiver and will result in districts making significant changes to the educational programs of schools designated as Priority and/or Focus. The Waiver allows the State to:
• Revise Annual Measurable Objective (AMO) timeframe by which schools and districts are expected to ensure that all students are proficient in English language arts (ELA) and mathematics and make the goals more realistic and attainable.
• Use standards on Regents ELA and mathematics examinations that are better aligned to college- and career- readiness to hold schools and districts accountable.
• Discontinue identification of schools for improvement, corrective action and restructuring and instead identify Priority and Focus Schools.
• Identify Focus Districts as a means to ensure districts take dramatic actions in support of schools where performance of disaggregated groups of students is among the lowest in the State and not showing progress.
• Replace current ESEA system of supports and interventions in identified schools and districts with one that better builds the capacity of districts to assists schools to implement transformation and turnaround.
• Use both proficiency and growth measures to make accountability determinations at the elementary and middle school levels.
• Create a single diagnostic tool ("The Diagnostic Tool for School and District Effectiveness") for use throughout the school and district improvement continuum to drive supports and interventions.
• Reframe existing ESEA set-asides to support enhanced implementation of Regents' Reform Agenda in Priority and Focus Schools, expanded learning time opportunities for students, and increased parental involvement and engagement.
• Give districts more flexibility in use of Federal funding as required as a condition of Waiver approval.
6. PAPERWORK:
A school district seeking to register a school shall submit a petition for registration pursuant to 100.18(c)(1).
If a district merges two or more schools, transfers organizational responsibility for one or more grades from one school to another, or closes a registered school, the district shall inform the Commissioner pursuant to 100.18(c)(4) and 100.18(d).
For each school year, public schools, school districts, and charter schools, in which no students or pursuant to 100.18(f)(2) fewer than 30 students participate in State assessments for English language arts or mathematics or in which the majority of students are not continuously enrolled, shall conduct a self-assessment of their academic program and school learning environment, pursuant to 100.18(f)(6).
For each preliminarily identified Priority School, Focus District or Focus Charter School, the district or charter school may present additional data and information concerning extenuating or extraordinary circumstances to establish cause to not be identified as a Focus District, a Priority School, or a Priority or Focus Charter School pursuant to 100.18(g)(3)(i).
Charter schools and districts may appeal a preliminarily identification of a school or district, pursuant to 100.18(g)(3)(ii).
Upon identification as a Focus District, the district must identify a specified minimum number of schools upon which it will focus its support and intervention efforts, pursuant to 100.18(g)(5).
A Focus District, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, may petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools, pursuant to 100.18(g)(5)(ii).
A Focus District may petition for good cause to substitute one or more lower ranked schools on the list selected by the district for higher ranked schools, pursuant to 100.18(g)(5)(ix)(d).
Upon receipt of a Priority or Focus accountability designation, a district or charter school shall notify public of issuance of such designation, pursuant to 100.18(g)(7).
Commencing in the 2012-2013 school year, each Focus District shall participate annually in a diagnostic review using a diagnostic tool of quality indicators, pursuant to 100.18(h).
Commencing with the plan for the 2012-2013 school year, each Focus District shall develop and implement a District Comprehensive Improvement Plan, pursuant to 100.18(h)(2)(ii).
Commencing with the plan for the 2012-13 school year, each Priority and Focus School located in a Focus District shall develop and implement a Comprehensive Education Plan pursuant to 100.18(h)(2)(iii). No later than September 30, 2012, each Focus District with one or more Priority Schools shall submit the schedule by which each of the district's Priority Schools shall implement, as part of the school's Comprehensive Improvement Plan, a whole school reform model.
A district that has not been identified as Focus but in which one or more schools require a Local Assistance Plan shall develop such plan pursuant to 100.18(h)(2)(iv).
A district or charter school may petition for a school to be removed from Priority status, pursuant to 100.18(i). Commencing with 2011-2012 and 2012-2013 school year results, and each consecutive two year period thereafter, a school district may petition to have its Focus designation revised pursuant to 100.18(i)(2).
Commencing with 2011-2012 and 2012-13 school year results and for each consecutive two year period thereafter, a charter school may petition for the charter school to be removed from Focus status, pursuant to 100.19(i)(2)(iv).
Pursuant to 100.18(k)(6), the district may present additional data and relevant information concerning extenuating or extraordinary circumstances faced by a school to establish cause to not identify the school for registration review. Pursuant to 100.18(k)(5), for each school identified as a poor learning environment and placed under preliminary registration review, the district may present evidence that the conditions in the school do not threaten the health or safety or educational welfare of students and do not adversely affect student performance.
A district shall take appropriate action to notify the public that a school has been placed under registration review, pursuant to 100.18(l)(1).
Upon approval of the integrated intervention team's recommendations, the Commissioner shall direct the district to submit a revised improvement plan, a new comprehensive improvement plan, or a plan for phase out or closure pursuant to 100.18(l)(3), and may require a district to submit such reports and data as necessary to monitor the implementation of the plans, pursuant to 100.18(l)(4).
Within 15 days of receiving notice of the Commissioner's recommendation to revoke registration, the district may submit a written response to the recommendation, pursuant to 100.18(l)(7).
If a school has demonstrated progress necessary to be removed from registration review, the superintendent may petition to remove the school from registration review pursuant to 100.18(m).
If a district seeks to phase out or close a school under registration review or is required to close or phase-out a school, the district shall submit a plan identifying the intervention that will be implemented and will result in phase out or closure, pursuant to 100.18(m)(5).
If a district seeks to redesign a school under registration review or a persistently lowest achieving school, the district shall submit a petition and redesign plan, pursuant to 100.18(m)(6).
7. DUPLICATION:
The rule does not duplicate existing State or federal regulations.
8. ALTERNATIVES:
There were no significant alternatives and none were considered.
9. FEDERAL STANDARDS:
The rule is necessary to conform the Commissioner's Regulations to New York's approved ESEA Flexibility Waiver.
10. COMPLIANCE SCHEDULE:
It is anticipated parties will be able to achieve compliance with the rule by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed rule relates to public school and school district accountability and is necessary to conform the Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The purpose of the rule is to ensure a seamless transition to the revised accountability plan as authorized under the ESEA Flexibility Waiver. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and 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 governments:
1. EFFECT OF RULE:
The rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act of 1965, as amended.
2. COMPLIANCE REQUIREMENTS:
The rule is necessary to assist school districts to be able to meet the provisions of the Waiver and will result in districts making significant changes to the educational programs of schools designated as Priority and/or Focus. The Waiver allows the State to:
• Revise Annual Measurable Objective (AMO) timeframe by which schools and districts are expected to ensure that all students are proficient in English language arts (ELA) and mathematics and make the goals more realistic and attainable.
• Use standards on Regents ELA and mathematics examinations that are better aligned to college- and career- readiness to hold schools and districts accountable.
• Discontinue identification of schools for improvement, corrective action and restructuring and instead identify Priority and Focus Schools.
• Identify Focus Districts as a means to ensure districts take dramatic actions in support of schools where performance of disaggregated groups of students is among the lowest in the State and not showing progress.
• Replace current ESEA system of supports and interventions in identified schools and districts with one that better builds the capacity of districts to assists schools to implement transformation and turnaround.
• Use both proficiency and growth measures to make accountability determinations at the elementary and middle school levels.
• Create a single diagnostic tool ("The Diagnostic Tool for School and District Effectiveness") for use throughout the school and district improvement continuum to drive supports and interventions.
• Reframe existing ESEA set-asides to support enhanced implementation of Regents' Reform Agenda in Priority and Focus Schools, expanded learning time opportunities for students, and increased parental involvement and engagement.
• Give districts more flexibility in use of Federal funding as required as a condition of Waiver approval.
A school district seeking to register a school shall submit a petition for registration pursuant to 100.18(c)(1).
If a district merges two or more schools, transfers organizational responsibility for one or more grades from one school to another, or closes a registered school, the district shall inform the Commissioner pursuant to 100.18(c)(4) and 100.18(d).
For each school year, public schools, school districts, and charter schools, in which no students or pursuant to 100.18(f)(2) fewer than 30 students participate in State assessments for English language arts or mathematics or in which the majority of students are not continuously enrolled, shall conduct a self-assessment of their academic program and school learning environment, pursuant to 100.18(f)(6).
For each preliminarily identified Priority School, Focus District or Focus Charter School, the district or charter school may present additional data and information concerning extenuating or extraordinary circumstances to establish cause to not be identified as a Focus District, a Priority School, or a Priority or Focus Charter School pursuant to 100.18(g)(3)(i).
Charter schools and districts may appeal a preliminarily identification of a school or district, pursuant to 100.18(g)(3)(ii).
Upon identification as a Focus District, the district must identify a specified minimum number of schools upon which it will focus its support and intervention efforts, pursuant to 100.18(g)(5).
A Focus District, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, may petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools, pursuant to 100.18(g)(5)(ii).
A Focus District may petition for good cause to substitute one or more lower ranked schools on the list selected by the district for higher ranked schools, pursuant to 100.18(g)(5)(ix)(d).
Upon receipt of a Priority or Focus accountability designation, a district or charter school shall notify public of issuance of such designation, pursuant to 100.18(g)(7).
Commencing in the 2012-2013 school year, each Focus District shall participate annually in a diagnostic review using a diagnostic tool of quality indicators, pursuant to 100.18(h).
Commencing with the plan for the 2012-2013 school year, each Focus District shall develop and implement a District Comprehensive Improvement Plan, pursuant to 100.18(h)(2)(ii).
Commencing with the plan for the 2012-13 school year, each Priority and Focus School located in a Focus District shall develop and implement a Comprehensive Education Plan pursuant to 100.18(h)(2)(iii). No later than September 30, 2012, each Focus District with one or more Priority Schools shall submit the schedule by which each of the district's Priority Schools shall implement, as part of the school's Comprehensive Improvement Plan, a whole school reform model.
A district that has not been identified as Focus but in which one or more schools require a Local Assistance Plan shall develop such plan pursuant to 100.18(h)(2)(iv).
A district or charter school may petition for a school to be removed from Priority status, pursuant to 100.18(i). Commencing with 2011-2012 and 2012-2013 school year results, and each consecutive two year period thereafter, a school district may petition to have its Focus designation revised pursuant to 100.18(i)(2).
Commencing with 2011-2012 and 2012-13 school year results and for each consecutive two year period thereafter, a charter school may petition for the charter school to be removed from Focus status, pursuant to 100.19(i)(2)(iv).
Pursuant to 100.18(k)(6), the district may present additional data and relevant information concerning extenuating or extraordinary circumstances faced by a school to establish cause to not identify the school for registration review. Pursuant to 100.18(k)(5), for each school identified as a poor learning environment and placed under preliminary registration review, the district may present evidence that the conditions in the school do not threaten the health or safety or educational welfare of students and do not adversely affect student performance.
A district shall take appropriate action to notify the public that a school has been placed under registration review, pursuant to 100.18(l)(1).
Upon approval of the integrated intervention team's recommendations, the Commissioner shall direct the district to submit a revised improvement plan, a new comprehensive improvement plan, or a plan for phase out or closure pursuant to 100.18(l)(3), and may require a district to submit such reports and data as necessary to monitor the implementation of the plans, pursuant to 100.18(l)(4).
Within 15 days of receiving notice of the Commissioner's recommendation to revoke registration, the district may submit a written response to the recommendation, pursuant to 100.18(l)(7).
If a school has demonstrated progress necessary to be removed from registration review, the superintendent may petition to remove the school from registration review pursuant to 100.18(m).
If a district seeks to phase out or close a school under registration review or is required to close or phase-out a school, the district shall submit a plan identifying the intervention that will be implemented and will result in phase out or closure, pursuant to 100.18(m)(5).
If a district seeks to redesign a school under registration review or a persistently lowest achieving school, the district shall submit a petition and redesign plan, pursuant to 100.18(m)(6).
3. PROFESSIONAL SERVICES:
The rule imposes no additional professional service requirements.
4. COMPLIANCE COSTS:
The rule does not generally impose any new costs, but rather requires, in some instances, that LEAs spend an amount equal to a percentage of their Title I, Title IIA, and Title II funds on specific programs and activities. The rule also provides LEAs with additional flexibility in how they use program funds.
Based upon either a LEA’s choice to implement flexibilities granted by the rule and/or the requirements described in the rule to implement certain activities based upon a school or LEA’s accountability status, there may be some associated costs. For LEAs with schools receiving Title I, IIA or III funding, these funds may be used to pay the associated costs. LEAs with Title I funded schools that are designated as Priority or Focus, will also be required to set-aside 5-15% of their Title I, IIA, III funding to implement programs and services in Priority and Focus Schools chosen from a menu of program and services established by the Commissioner.
In some instances, LEAs newly identified as Focus Districts with schools that are designated as Priority or Focus that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources.
In other instances, LEAs and their schools will be designated as in Good Standing, when under the present accountability system these LEAs and schools might otherwise have been designated as in improvement, corrective action or restructuring. In these cases, LEAs may incur cost savings as they will no longer be required to participate in site visits or in the other required interventions for LEAs and districts with such designations.
Because of the number of LEAs and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from LEA-to-LEA, as well as school-to-school, depending on the school and LEA designation, the LEAs’ choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the Compliance Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The rule is necessary to conform the Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The rule adds a new section 100.18 and revises sections 100.2(m), 100.17, 120.3, and 120.4 of the Commissioner's Regulations to align New York’s public school and school district accountability system to the approved Waiver, address the Regents Reform Agenda, and ensure a seamless transition to the revised accountability plan as authorized under the approved ESEA Flexibility Waiver. The rule will provide school districts with the opportunity to demonstrate improvements using options that closely align with the federal school turnaround principles described in federal Race to the Top and School Improvement Grant requirements. The rule has been carefully drafted to meet specific federal and State requirements.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed rule have been provided to District Superintendents with the request that they distribute it 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 and to charter schools.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act (ESEA) of 1965, as amended, 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 rule is necessary to assist school districts to be able to meet the provisions of the Waiver and will result in districts making significant changes to the educational programs of schools designated as Priority and/or Focus. The Waiver allows the State to:
• Revise Annual Measurable Objective (AMO) timeframe by which schools and districts are expected to ensure that all students are proficient in English language arts (ELA) and mathematics and make the goals more realistic and attainable.
• Use standards on Regents ELA and mathematics examinations that are better aligned to college- and career- readiness to hold schools and districts accountable.
• Discontinue identification of schools for improvement, corrective action and restructuring and instead identify Priority and Focus Schools.
• Identify Focus Districts as a means to ensure districts take dramatic actions in support of schools where performance of disaggregated groups of students is among the lowest in the State and not showing progress.
• Replace current ESEA system of supports and interventions in identified schools and districts with one that better builds the capacity of districts to assists schools to implement transformation and turnaround.
• Use both proficiency and growth measures to make accountability determinations at the elementary and middle school levels.
• Create a single diagnostic tool ("The Diagnostic Tool for School and District Effectiveness") for use throughout the school and district improvement continuum to drive supports and interventions.
• Reframe existing ESEA set-asides to support enhanced implementation of Regents' Reform Agenda in Priority and Focus Schools, expanded learning time opportunities for students, and increased parental involvement and engagement.
• Give districts more flexibility in use of Federal funding as required as a condition of Waiver approval.
A school district seeking to register a school shall submit a petition for registration pursuant to 100.18(c)(1).
If a district merges two or more schools, transfers organizational responsibility for one or more grades from one school to another, or closes a registered school, the district shall inform the Commissioner pursuant to 100.18(c)(4) and 100.18(d).
For each school year, public schools, school districts, and charter schools, in which no students or pursuant to 100.18(f)(2) fewer than 30 students participate in State assessments for English language arts or mathematics or in which the majority of students are not continuously enrolled, shall conduct a self-assessment of their academic program and school learning environment, pursuant to 100.18(f)(6).
For each preliminarily identified Priority School, Focus District or Focus Charter School, the district or charter school may present additional data and information concerning extenuating or extraordinary circumstances to establish cause to not be identified as a Focus District, a Priority School, or a Priority or Focus Charter School pursuant to 100.18(g)(3)(i).
Charter schools and districts may appeal a preliminarily identification of a school or district, pursuant to 100.18(g)(3)(ii).
Upon identification as a Focus District, the district must identify a specified minimum number of schools upon which it will focus its support and intervention efforts, pursuant to 100.18(g)(5).
A Focus District, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, may petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools, pursuant to 100.18(g)(5)(ii).
A Focus District may petition for good cause to substitute one or more lower ranked schools on the list selected by the district for higher ranked schools, pursuant to 100.18(g)(5)(ix)(d).
Upon receipt of a Priority or Focus accountability designation, a district or charter school shall notify public of issuance of such designation, pursuant to 100.18(g)(7).
Commencing in the 2012-2013 school year, each Focus District shall participate annually in a diagnostic review using a diagnostic tool of quality indicators, pursuant to 100.18(h).
Commencing with the plan for the 2012-2013 school year, each Focus District shall develop and implement a District Comprehensive Improvement Plan, pursuant to 100.18(h)(2)(ii).
Commencing with the plan for the 2012-13 school year, each Priority and Focus School located in a Focus District shall develop and implement a Comprehensive Education Plan pursuant to 100.18(h)(2)(iii). No later than September 30, 2012, each Focus District with one or more Priority Schools shall submit the schedule by which each of the district's Priority Schools shall implement, as part of the school's Comprehensive Improvement Plan, a whole school reform model.
A district that has not been identified as Focus but in which one or more schools require a Local Assistance Plan shall develop such plan pursuant to 100.18(h)(2)(iv).
A district or charter school may petition for a school to be removed from Priority status, pursuant to 100.18(i). Commencing with 2011-2012 and 2012-2013 school year results, and each consecutive two year period thereafter, a school district may petition to have its Focus designation revised pursuant to 100.18(i)(2).
Commencing with 2011-2012 and 2012-13 school year results and for each consecutive two year period thereafter, a charter school may petition for the charter school to be removed from Focus status, pursuant to 100.19(i)(2)(iv).
Pursuant to 100.18(k)(6), the district may present additional data and relevant information concerning extenuating or extraordinary circumstances faced by a school to establish cause to not identify the school for registration review. Pursuant to 100.18(k)(5), for each school identified as a poor learning environment and placed under preliminary registration review, the district may present evidence that the conditions in the school do not threaten the health or safety or educational welfare of students and do not adversely affect student performance.
A district shall take appropriate action to notify the public that a school has been placed under registration review, pursuant to 100.18(l)(1).
Upon approval of the integrated intervention team's recommendations, the Commissioner shall direct the district to submit a revised improvement plan, a new comprehensive improvement plan, or a plan for phase out or closure pursuant to 100.18(l)(3), and may require a district to submit such reports and data as necessary to monitor the implementation of the plans, pursuant to 100.18(l)(4).
Within 15 days of receiving notice of the Commissioner's recommendation to revoke registration, the district may submit a written response to the recommendation, pursuant to 100.18(l)(7).
If a school has demonstrated progress necessary to be removed from registration review, the superintendent may petition to remove the school from registration review pursuant to 100.18(m).
If a district seeks to phase out or close a school under registration review or is required to close or phase-out a school, the district shall submit a plan identifying the intervention that will be implemented and will result in phase out or closure, pursuant to 100.18(m)(5).
If a district seeks to redesign a school under registration review or a persistently lowest achieving school, the district shall submit a petition and redesign plan, pursuant to 100.18(m)(6).
The proposed rule making imposes no additional professional service requirements on school districts.
3. COMPLIANCE COSTS:
The rule does not generally impose any new costs, but rather requires, in some instances, that LEAs spend an amount equal to a percentage of their Title I, Title IIA, and Title II funds on specific programs and activities. The rule also provides LEAs with additional flexibility in how they use program funds.
Based upon either a LEA’s choice to implement flexibilities granted by the rule and/or the requirements described in the rule to implement certain activities based upon a school or LEA’s accountability status, there may be some associated costs. For LEAs with schools receiving Title I, IIA or III funding, these funds may be used to pay the associated costs. LEAs with Title I funded schools that are designated as Priority or Focus, will also be required to set-aside 5-15% of their Title I, IIA, III funding to implement programs and services in Priority and Focus Schools chosen from a menu of program and services established by the Commissioner.
In some instances, LEAs newly identified as Focus Districts with schools that are designated as Priority or Focus that do not receive Title I funding may incur costs. These costs will generally be limited to the cost of site visits and implementation of any elements of District Comprehensive Education Plans and Comprehensive Education Plans that involve activities that are in addition to the district's or the school's regular educational program and that the district chooses not to fund through reallocation of existing resources.
In other instances, LEAs and their schools will be designated as in Good Standing, when under the present accountability system these LEAs and schools might otherwise have been designated as in improvement, corrective action or restructuring. In these cases, LEAs may incur cost savings as they will no longer be required to participate in site visits or in the other required interventions for LEAs and districts with such designations.
Because of the number of LEAs and schools involved, and the fact that the allowable services and activities to be provided will vary greatly from LEA-to-LEA, as well as school-to-school, depending on the school and LEA designation, the LEAs’ choices, and the needs presented in each school, a complete cost statement cannot be provided. No additional costs have been identified with respect to the implementation of the updated accountability system, given the similarities in current requirements and an inability to determine differences aside from those in respect to depth of focus.
4. MINIMIZING ADVERSE IMPACT:
The rule is necessary to conform the Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The rule adds a new section 100.18 and revises sections 100.2(m), 100.17, 120.3, and 120.4 of the Commissioner's Regulations to align New York’s public school and school district accountability system to the approved Waiver, address the Regents Reform Agenda, and ensure a seamless transition to the revised accountability plan as authorized under the approved ESEA Flexibility Waiver. The rule will provide school districts with the opportunity to demonstrate improvements using options that closely align with the federal school turnaround principles described in federal Race to the Top and School Improvement Grant requirements. The rule has been carefully drafted to meet specific federal and State requirements. Since these requirements apply to all local educational agencies in the State that receive ESEA funds, it is not possible to adopt different standards for school districts in rural areas.
5. RURAL AREA PARTICIPATION:
The rule was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.
Job Impact Statement
The proposed rule making relates to public school and school district accountability and is necessary to conform the Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The purpose of the proposed rule is to ensure a seamless transition to the revised accountability plan as authorized under the ESEA Flexibility Waiver. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The proposed rule applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed rule 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.
