To specify the NYS Identification Test for English Language Learners (NYSITELL) for purposes of identifying LEP pupils.
Text of proposed rule:
1. Section 154.2 of the Regulations of the Commissioner of Education is amended, effective February 1, 2014, as follows:
154.2 Definitions.
(a) Pupils with limited English proficiency shall mean pupils who by reason of foreign birth or ancestry, speak a language other than English and:
(1) . . .
(2) score below a State designated level of proficiency, on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT)? provided, however, that no pupil shall be served in a bilingual or English as a second language education program pursuant to this Part for a period in excess of three years from the date of enrollment in school unless such period is extended by the commissioner with respect to an individual pupil in accordance with the provisions of subdivision 2 of section 3204 of the Education Law.
(b) Initial identification is the process followed to determine if the pupil is limited English proficient, at the time of a pupil's enrollment in the New York State public school system for the first time or at the time of a pupil's reentry into the New York State public school system with no available record of prior screening, based upon such pupil scoring below a State designated level of proficiency on the LAB-R prior to February 1, 2014, or on the NYSITELL commencing February 1, 2014 and thereafter.
(c) Annual English language assessment is the process followed to determine if a pupil with limited English proficiency continues to be limited English proficient, based upon such pupil scoring below a State designated level of proficiency on the NYSESLAT.
(d) . . .
(e) . . .
(f) . . .
2. Subdivision (l) of section 154.3 of the Regulations of the Commissioner of Education is amended, effective February 1, 2014, as follows:
(l) A pupil whose score on the LAB-R prior to February 1, 2014, or on the NYSITELL commencing February 1, 2014 and thereafter, or on the NYSESLAT, as specified in section 154.2(a), (b) and (c) of this Part, is a result of a disability shall be provided special education programs and services in accordance with the individualized education program (IEP) developed for such pupil pursuant to Part 200 of this Title, and shall also be eligible for services pursuant to this Part when such services are recommended in the IEP. A pupil with a disability receiving services in accordance with the provisions of this section shall be counted as a pupil with limited English proficiency, as well as a student with a disability, for purposes of calculating State aid pursuant to section 3602 of the Education Law.
3. Subdivision (l) of section 154.3 of the Regulations of the Commissioner of Education is amended, effective February 1, 2014, as follows:
(l) A pupil whose score on the LAB-R prior to February 1, 2014, or on the NYSITELL commencing February 1, 2014 and thereafter, or on the NYSESLAT, as specified in section 154.2(a),(b) and (c) of this Part, is a result of a disability shall be provided special education programs and services in accordance with the individualized education program (IEP) developed for such pupil pursuant to Part 200 of this Title, and shall also be eligible for services pursuant to this Part when such services are recommended in the IEP. A pupil with a disability receiving services in accordance with the provisions of this section shall be counted as a pupil with limited English proficiency, as well as a student with a disability, for purposes of calculating State aid pursuant to section 3602 of the Education Law.
Text of proposed 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
Data, views or arguments may be submitted to:
Ken Wagner, Dep. Comm, Curriculum, Assessment & Ed. Tech., State Education Department, 875 EBA, 89 Washington Ave., Albany, NY 12234, (518) 474-5915, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 207 empowers the Board of Regents and the Commissioner of Education to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the State Education Department by law.
Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law section 215 authorizes the Board of Regents and the Commissioner of Education to require school districts to prepare and submit reports containing such information as they may prescribe.
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, and shall execute all educational policies determined by the Board of Regents.
Education Law section 2117(1) empowers the Board of Regents and the Commissioner of Education to require school districts to submit any information they deem appropriate.
Education Law section 3204(2) and (2-a) provide for instructional programs for pupils with limited English proficiency to be conducted in accordance with regulations of the Commissioner. Education Law section 3204(3) authorizes the Commissioner to establish standards for the instruction of children with limited English proficiency, and section 3204(6) requires the Commissioner to establish such standards by regulation.
LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement policy adopted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency.
NEEDS AND BENEFITS:
The proposed amendment is necessary to implement policy adopted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency. The State Education Department is in the process of implementing a two-phase alignment of the NYS English as a Second Language Achievement Test (NYSESLAT) to the Common Core. As a part of this new alignment, the Department is also building a new initial identification assessment, the New York State Identification Test for English Language Learners (NYSITELL). The NYSITELL will be based on, and similar to, the NYSESLAT. Additionally, the NYSITELL is being developed from the same pool of questions as the NYSESLAT and, thus, the two tests will include the same types of questions. These new alignments will better enable educators to determine a student’s level of English proficiency and subsequently provide the appropriate instruction and will facilitate the field’s transition to this new identification test.
The proposed amendment specifies the NYSITELL for purposes of identifying pupils with limited English proficiency. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
COSTS:
(a) Costs to State government: None.
(b) Cost to local government: None.
(c) Cost to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any costs on the State, local governments, private regulated parties or the State Education Department. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
LOCAL GOVERNMENT MANDATES:
The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.
PAPERWORK:
The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any additional paperwork or recordkeeping requirements.
DUPLICATION:
The proposed amendment will not duplicate or exceed any other existing federal or State statute or regulation.
ALTERNATIVES:
The proposed amendment is necessary to implement policy enacted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency. There are no significant alternatives and none were considered.
The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any costs on the State, local governments, private regulated parties or the State Education Department. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
FEDERAL STANDARDS:
The proposed amendment does not exceed any federal rule in a similar area.
COMPLIANCE SCHEDULE:
It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date. The proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency, and does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on small businesses. No further steps 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:
EFFECT OF RULE:
The proposed amendment applies to each of the 695 public school districts in the State.
COMPLIANCE REQUIREMENTS:
The proposed amendment is necessary to implement policy adopted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency. The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any additional compliance requirements on school districts. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional services requirements on school districts.
COMPLIANCE COSTS:
The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any costs on school districts. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
ECONOMIC AND TECHNOLOGICAL FEASIBILTY:
The proposed amendment does not impose any additional technological requirements on school districts. Economic feasibility is addressed above under compliance costs.
MINIMIZE ADVERSE IMPACT:
The proposed amendment is necessary to implement policy adopted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency. The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any additional compliance requirements or costs on school districts. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
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.
INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement long-range Regents policy providing for a transition to the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014, for purposes of identifying pupils with limited proficiency. Accordingly, there is no need for a shorter review period.
The State Education Department is in the process of implementing a two-phase alignment of the NYS English as a Second Language Achievement Test (NYSESLAT) to the Common Core. As a part of this new alignment, the Department is also building a new initial identification assessment, the NYSITELL. The NYSITELL will be based on, and similar to, the NYSESLAT. Additionally, the NYSITELL is being developed from the same pool of questions as the NYSESLAT and, thus, the two tests will include the same types of questions. These new alignments will better enable educators to determine a student’s level of English proficiency and subsequently provide the appropriate instruction and will facilitate the field’s transition to this new identification test.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment 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 is necessary to implement policy adopted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency. The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any additional reporting, recordkeeping or other compliance requirements on school districts. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
The proposed amendment does not impose any additional professional services requirements on school districts.
3. COMPLIANCE COSTS:
The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any costs on school districts. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT).
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement policy adopted by the Board of Regents relating to examination requirements for identifying pupils with limited English proficiency. The proposed amendment merely specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency and does not impose any additional compliance requirements or costs on school districts. Specifically, the proposed amendment provides that "pupils with limited English proficiency" shall include pupils who by reason of foreign birth or ancestry, speak a language other than English and score below a State designated level of proficiency on the Language Assessment Battery-Revised (LAB-R) prior to February 1, 2014, or on the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a Second Language Achievement Test (NYSESLAT). Because this amendment implements Regents policy that is applicable to all school districts across the State, it was not possible to provide for a lesser standard or an exemption for school districts in rural areas.
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.
6. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement long-range Regents policy providing for a transition to the New York State Identification Test for English Language Learners (NYSITELL) commencing February 1, 2014, for purposes of identifying pupils with limited proficiency. Accordingly, there is no need for a shorter review period.
The State Education Department is in the process of implementing a two-phase alignment of the NYS English as a Second Language Achievement Test (NYSESLAT) to the Common Core. As a part of this new alignment, the Department is also building a new initial identification assessment, the NYSITELL. The NYSITELL will be based on, and similar to, the NYSESLAT. Additionally, the NYSITELL is being developed from the same pool of questions as the NYSESLAT and, thus, the two tests will include the same types of questions. These new alignments will better enable educators to determine a student’s level of English proficiency and subsequently provide the appropriate instruction and will facilitate the field’s transition to this new identification test.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Job Impact Statement
The proposed amendment specifies a new test, the New York State Identification Test for English Language Learners (NYSITELL), for purposes of identifying pupils with limited English proficiency, and will not have an adverse impact on jobs or employment activities. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
