Specific reasons underlying the finding of necessity:
The proposed amendment would extend certain of the provisions in section 100.2(ee) of the Commissioner’s Regulations through the 2015-2016 school year, in order to provide continued flexibility to school districts in the provision of Academic Intervention Services (AIS) for those students who performed below Level 3 on the grade 3-8 ELA and Math assessments but at or above cut scores established by the Regents.
The proposed amendment was adopted as an emergency action at the September 16-17, 2015 Regents meeting, effective September 17, 2015. The proposed amendment has now been adopted as a permanent rule at the December 14-15, 2015 Regents meeting. Pursuant to SAPA § 203(1), the earliest effective date of the permanent rule is December 30, 2015, the date a Notice of Adoption will be published in the State Register. However, the September emergency rule will expire on December 15, 2015, 90 days after its filing with the Department of State on September 17, 2015. A lapse in the rule could disrupt the provision of AIS to eligible students during the 2015-2016 school year. Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed amendment adopted by emergency action at the September 2015 Regents meeting and adopted as a permanent rule at the December 2015 Regents meeting, remains continuously in effect until the effective date of its permanent adoption.
Subject:
Academic Intervention Services (AIS).
Purpose:
To establish modified requirements for AIS during the 2015-2016 school year.
Text of emergency rule:
Paragraph (2) of subdivision (ee) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective December 16, 2015, as follows:
(2) Requirements for providing academic intervention services in grade three to grade eight. Schools shall provide academic intervention services when students:
(i) score below:
(a) the State designated performance level on one or more of the State elementary assessments in English Language Arts, Mathematics or Science, provided that for the [2014-2015] 2015-2016 school year only, the following shall apply:
(1) those students scoring below a scale score specified in subclause (3) of this clause shall receive academic intervention instructional services; and
(2) those students scoring at or above a scale score specified in subclause (3) of this clause but below level 3/proficient shall not be required to receive academic intervention instructional and/or student support services unless the school district, in its discretion, deems it necessary. Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the [2014-2015] 2015-2016 school year to students who scored above a scale score specified in subclause (3) of this clause but below level 3/proficient on a grade 3-8 English Language Arts or Mathematics State assessment in [2013-2014] 2014-2015, and shall no later than [November 1, 2014] November 1, 2015 either post to its website or distribute to parents in writing a description of such process;
(3)
(b)
(ii) . . .
(iii) . . .
This notice is intended
to serve 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-40-15-00004-EP, Issue of October 7, 2015. The emergency rule will expire February 12, 2016.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234, (518) 474-6400, email: legal@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:
In 2013, the Regents adopted amendments to Commissioner’s Regulations section 100.2(ee) [EDU-40-13-00005-EP, State Register October 2, 2013; EDU-40-13-00005-A, State Register December 31, 2013] that provided flexibility to districts in the provision of Academic Intervention Services (AIS) for the 2013-2014 school year, in recognition of the fact that the State assessments administered to New York students in Spring 2013 were the first that measured the progress of students in meeting the expectations of the Common Core Learning Standards (CCLS). A subsequent amendment in 2014 extended similar flexibility in the provision of AIS for the 2014-15 school year [EDU-39-14-00015-EP, State Register October 1, 2014; EDU-39-14-00015-A, State Register December 31, 2014].
Section 100.2(ee) of the Commissioner’s Regulations requires school districts to provide Academic Intervention Services (AIS) to students who score below the State designated performance level on State assessments for English Language Arts and Mathematics and/or who are at risk of not achieving the State learning standards. These requirements have been in place for more than 20 years.
The State assessments for grades 3-8 in ELA and Mathematics have four designated performance levels:
Level 1: Students performing at this level are well below proficient in standards for their grade.
Level 2: Students performing at this level are partially proficient in standards for their grade.
Level 3: Students performing at this level are proficient in standards for their grade.
Level 4: Students performing at this level excel in standards for their grade.
In the past, all students who scored at Levels 1 and/or 2 on the grades 3-8 ELA or Math assessments had been eligible to receive AIS. In 2013, the State Education Department, for the first time, administered assessments in grades 3-8 that were based on the Common Core Learning Standards (CCLS) and aligned to college- and career-readiness standards. As a consequence, there was a significant decline in the percentage of students who scored at or above proficiency on the grades 3-8 ELA and Math assessments.
In September 2013, the Board of Regents adopted emergency regulations that were designed to ensure that districts would not be required to significantly increase the percentage of students to whom they would be required to provide AIS as a consequence of the implementation of the more rigorous CCLS standards. Pursuant to the regulations, the Department established cut scores for grades 3-8 ELA and Math that resulted in districts being required to provide AIS to approximately the same percentages of students in the 2013-14 school year as received AIS in the 2012-13 school year. This was analogous to the action taken by the Regents in July 2010 to address the raising of the cut scores on the 2010 Grades 3-8 English Language Arts and Mathematics assessments.
In the 2013-14 school year, under the approved Commissioner’s Regulation § 100.2(ee), districts were required to establish a policy to determine what services, if any, to provide to students who scored above the transitional cut scores established by SED, but below proficiency levels on the 2013 assessments.
Specifically, section 100.2(ee) provided the following for the 2013-14 school year:
• Students who scored below the specified cut scores for Grades 3-8 English Language Arts and Mathematics must receive AIS;
• Students who scored at or above the specified cut scores, but below the 2013 Level 3/proficient cut scores, would not be required to receive AIS and/or student support services unless the school district deemed it necessary;
• Each school district must develop and maintain on file a uniform process by which the district determined whether to offer AIS to students who scored at or above the specified cut scores but below Level 3/proficient on grades 3-8 English Language Arts or Mathematics NYS assessments; and
• By November 1, 2013, each school was required to either post a description of this process to its website or distribute a written description of such process to parents.
In September 2014, the Regents took action to extend these provisions through the 2014-15 school year to continue flexibility in the provisions of AIS. The proposed amendment would extend the 2014-2015 amendment to the Commissioner's Regulations through the 2015-16 school year to continue flexibility in the provision of Academic Intervention Services.
4. COSTS:
(a) Costs to State government: None.
(b) Costs to local government: None.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
The proposed amendment extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will not impose any additional costs but instead will allow for continued flexibility and reduced costs to school districts in providing AIS.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments but merely extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in providing AIS.
6. PAPERWORK:
The proposed amendment does not impose any specific recordkeeping, reporting or other paperwork requirements.
7. DUPLICATION:
The proposed amendment does not duplicate existing State or federal regulations.
8. ALTERNATIVES:
There were no significant alternatives and none were considered. The proposed amendment is necessary to implement Regents policy to provide flexibility to school districts in providing AIS during the 2015-2016 school year.
9. FEDERAL STANDARDS:
There are no related federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment extends to the 2015-2016 school year the modified requirements for the provision of Academic Intervention Services (AIS) previously implemented for the 2013-2014 and 2015-2016 school years, to allow for continued flexibility to school districts in providing AIS.
The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Government:
1. EFFECT OF RULE:
The proposed amendment applies to each of the 695 public school districts in the State.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements upon local governments but merely extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will not impose any additional compliance requirements but instead will allow for continued flexibility to school districts in providing AIS.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional service requirements on school districts.
4. COMPLIANCE COSTS:
The proposed amendment extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will not impose any additional costs but instead will allow for flexibility and reduced costs to school districts in providing AIS.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any technological requirements or costs on school districts.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement Regents policy to provide flexibility to school districts in providing AIS during the 2015-2016 school year. The proposed amendment does not impose any additional compliance requirements or costs on local governments but merely extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years, to allow for continued flexibility to school districts in providing AIS.
7. LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional compliance requirements upon rural areas but merely extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will continue to provide flexibility to school districts in providing AIS services.
The proposed amendment imposes no additional professional services requirements on school districts in rural areas.
3. COMPLIANCE COSTS:
The proposed amendment extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will not impose any additional costs but instead will allow for flexibility and reduced costs to school districts in providing AIS.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment does not impose any additional compliance requirements or costs on local governments but merely extends to the 2015-2016 school year, the modified requirements for the provision of AIS previously implemented for the 2013-2014 and 2014-2015 school years. The proposed amendment will continue to provide flexibility to school districts in providing AIS services.
The proposed amendment is necessary to implement Regents policy to provide flexibility to school districts in providing AIS during the 2015-2016 school year. Because the Regents policy upon which the proposed amendment is based uniformly applies to all school districts throughout the State, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt school districts in rural areas from coverage by the proposed amendment.
5. RURAL AREA PARTICIPATION:
Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The proposed amendment extends to the 2015-2016 school year the modified requirements for the provision of Academic Intervention Services (AIS) previously implemented for the 2013-2014 and 2014-2015 school years, to allow for continued flexibility to school districts in providing AIS. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
