Specific reasons underlying the finding of necessity:
The proposed amendment modifies the test cut scores for the required provision of Academic Intervention Services (AIS) to students during the 2013-2014 school year. Under the present rule, those students scoring at or below a scale score of 650 must be provided with AIS. The proposed rule would establish, for the 2013-2014 school year only, specific scale scores for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8 that would require the provision of AIS to students scoring below such scale scores.
The proposed amendment was adopted as an emergency action at the September 16-17, 2013 Regents meeting, effective September 17, 2013. Because the Board of Regents meets at monthly intervals, the earliest the proposed amendment could be adopted by regular action after publication of a Notice of Proposed Rule Making and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act (SAPA) section 202 would be the December 16-17, 2013 Regents meeting. Furthermore, because SAPA section 203(1) provides that an adopted rule may not become effective until a Notice of Adoption is published in the State Register, the earliest the proposed amendment could become effective if adopted at the December Regents meeting, is January 1, 2014.
However, the September emergency rule will expire on December 15, 2013, 90 days after its filing with the Department of State on September 17, 2012. A lapse in the rule's effective date could disrupt implementation of Academic Intervention Services during the 2013-2014 school year. Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed rule adopted by emergency action at the September Regents meeting remains continuously in effect until the effective date of its permanent adoption.
It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the December 16-17, 2013 Regents meeting, which is the first scheduled Regents meeting after publication of the proposed rule in the State Register and expiration of the 45-day public comment period prescribed in the State Administrative Procedure Act for State agency rule makings.
Subject:
Academic Intervention Services (AIS).
Purpose:
To establish modified requirements for AIS during the 2013-2014 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, 2013, 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 [2010-2011] 2013-2014 school year only, the following shall apply:
(1) those students scoring [at or] below a scale score [of 650] specified in subclause (3) of this clause shall receive academic intervention instructional services; and
(2) those students scoring at or above a scale score [of 650] 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 [2010-2011] 2013-2014 school year to students who scored above a scale score [of 650] 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 [2009-2010] 2012-2013, and shall no later than [the commencement of the first day of instruction] November 1, 2013 either post to its Website or distribute to parents in writing a description of such process;
(3) The following scale scores shall be used to determine which students shall receive academic intervention services as specified in subclauses (1) and (2) of this clause:
Grade 3 English language arts, a scale score of 299
Grade 4 English language arts, a scale score of 296
Grade 5 English language arts, a scale score of 297
Grade 6 English language arts, a scale score of 297
Grade 7 English language arts, a scale score of 301
Grade 8 English language arts, a scale score of 302
Grade 3 mathematics, a scale score of 293
Grade 4 mathematics, a scale score of 284
Grade 5 mathematics, a scale score of 289
Grade 6 mathematics, a scale score of 289
Grade 7 mathematics, a scale score of 290
Grade 8 mathematics, a scale score of 293
and/or
(b) the State designated performance level on a State elementary assessment in social studies administered prior to the 2010-2011 school year; provided that beginning in the 2010-2011 school year, at which time a State elementary assessment in social studies shall no longer be administered, a school shall provide academic intervention services when students are determined to be at risk of not achieving State learning standards in social studies pursuant to subparagraph (iii) of this paragraph;
(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-40-13-00005-EP, Issue of October 2, 2013. The emergency rule will expire February 13, 2014.
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 the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 empowers the Board of Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.
Education Law section 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education.
Education law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.
Education law section 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of education.
Education Law section 3204(3) provides for the courses of study in the public schools.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement policy enacted by the Board of Regents relating to academic intervention services (AIS).
3. NEEDS AND BENEFITS:
The proposed amendment modifies the test cut scores for the required provision of Academic Intervention Services (AIS) to students during the 2013-2014 school year. Under the present rule, those students scoring at or below a scale score of 650 must be provided with AIS. The proposed rule would establish, for the 2013-2014 school year only, specific scale scores for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8 that would require the provision of AIS to students scoring below such scale scores.
Historically, students who have scored below proficient on State assessments in English language arts or mathematics have been required to receive AIS. However, proficiency standards on the 2012 and the 2013 state assessments cannot be directly compared because the 2012 tests were designed to measure the learning standards established in 2005, which are different than the new Common Core Learning Standards (CCLS) measured on the 2013 tests. Despite the change in scales, the Department can determine the scale scores for each respective year that are associated with students who scored at the same percentile rank on the two assessments. The Department proposes using these percentile ranks as the basis for determining which students must be provided Academic Intervention Services during this transition year as this approach ensures that the change in proficiency rates will not result in a significant increase in the percentage of students who must receive AIS. The cut scores that the Department proposes be used will result in districts being required to provide AIS to approximately the same percentages of students Statewide in the 2013-2014 school year as received AIS in the 2012-2013 school year. This is analogous to the action taken by the Regents in 2010 to address the raising of the cut scores on the 2010 Grade 3-8 English language arts and mathematics assessments (see New York State Register, November 10, 2010; EDU-31-10-00004-A).
Specifically, the proposed amendment provides that for the 2013-2014 school year only:
(1) Students scoring below specific scale scores, as set forth in section 100.2(ee)(2)(i)(a)(3) of the proposed rule, for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8, must receive academic intervention instructional services.
(2) Students scoring at or above such scale scores but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2013-14 school year to students who scored above such scale scores but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013, and shall either post to its Website or distribute to parents in writing a description of such process no later than November 1, 2013.
4. COSTS:
(a) Costs to State government: None.
(b) Costs to local government: The proposed amendment establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards. School districts may incur some costs associated with distributing to parents of students a written description of the district's process for determining whether AIS will be offered to students who scored at or above who scored at or above specific scale scores specified in the regulation but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013. However, the proposed amendment allows school districts to post the description on its Website in lieu of distributing to parents, and it is anticipated that any associated costs would be minimal and can be absorbed using existing district staff and resources. More importantly, any such costs would be more than offset by the reduction in costs to schools districts resulting from implementation of the modified AIS requirements in the 2013-2014 school year.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments but merely establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards.
6. PAPERWORK:
The proposed amendment requires each school district to develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2013-2014 school year to students who scored at or above specific scale scores, as set forth in section 100.2(ee)(2)(i)(a)(3) of the proposed rule for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8, but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013, and to either post to its Website or distribute to parents in writing a description of such process no later than November 1, 2013.
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 rule is necessary to provide flexibility to school districts in providing AIS during the 2013-2014 school year relating to the potential impact of an anticipated increase in the number of students who would otherwise be required to received AIS as a result of the transition to the new Common Core Learning Standards.
9. FEDERAL STANDARDS:
There are no related federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the proposed rule by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment establishes modified requirements for the provision of Academic Intervention Services (AIS) during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the Common Core Learning Standards. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping 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 modifies the test cut scores for the required provision of Academic Intervention Services (AIS) to students during the 2013-2014 school year. Under the present rule, those students scoring at or below a scale score of 650 must be provided with AIS. The proposed rule would establish, for the 2013-2014 school year only, specific scale scores for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8 that would require the provision of AIS to students scoring below such scale scores.
Historically, students who have scored below proficient on State assessments in English language arts or mathematics have been required to receive AIS. However, proficiency standards on the 2012 and the 2013 state assessments cannot be directly compared because the 2012 tests were designed to measure the learning standards established in 2005, which are different than the new Common Core Learning Standards (CCLS) measured on the 2013 tests. Despite the change in scales, the Department can determine the scale scores for each respective year that are associated with students who scored at the same percentile rank on the two assessments. The Department proposes using these percentile ranks as the basis for determining which students must be provided Academic Intervention Services during this transition year as this approach ensures that the change in proficiency rates will not result in a significant increase in the percentage of students who must receive AIS. The cut scores that the Department proposes be used will result in districts being required to provide AIS to approximately the same percentages of students Statewide in the 2013-2014 school year as received AIS in the 2012-2013 school year. This is analogous to the action taken by the Regents in 2010 to address the raising of the cut scores on the 2010 Grade 3-8 English language arts and mathematics assessments (see New York State Register, November 10, 2010; EDU-31-10-00004-A).
Specifically, the proposed amendment provides that for the 2013-2014 school year only:
(1) Students scoring below specific scale scores, as set forth in section 100.2(ee)(2)(i)(a)(3) of the proposed rule, for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8, must receive academic intervention instructional services.
(2) Students scoring at or above such scale scores but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2013-14 school year to students who scored above such scale scores but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013, and shall either post to its Website or distribute to parents in writing a description of such process no later than November 1, 2013.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional service requirements on school districts.
4. COMPLIANCE COSTS:
The proposed amendment establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards. School districts may incur some costs associated with distributing to parents of students a written description of the district's process for determining whether AIS will be offered to students who scored at or above who scored at or above specific scale scores, as set forth in section 100.2(ee)(2)(i)(a)(3) of the proposed rule, for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8, but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013. However, the proposed amendment allows school districts to post the description on its Website in lieu of distributing to parents, and it is anticipated that any associated costs would be minimal and can be absorbed using existing district staff and resources. More importantly, any such costs would be more than offset by the reduction in costs to schools districts resulting from implementation of the modified AIS requirements in the 2013-2014 school year.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any technological requirements on school districts. Economic feasibility is addressed under the Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement policy enacted by the Board of Regents and establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment modifies the test cut scores for the required provision of Academic Intervention Services (AIS) to students during the 2013-2014 school year. Under the present rule, those students scoring at or below a scale score of 650 must be provided with AIS. The proposed rule would establish, for the 2013-2014 school year only, specific scale scores for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8 that would require the provision of AIS to students scoring below such scale scores.
Historically, students who have scored below proficient on State assessments in English language arts or mathematics have been required to receive AIS. However, proficiency standards on the 2012 and the 2013 state assessments cannot be directly compared because the 2012 tests were designed to measure the learning standards established in 2005, which are different than the new Common Core Learning Standards (CCLS) measured on the 2013 tests. Despite the change in scales, the Department can determine the scale scores for each respective year that are associated with students who scored at the same percentile rank on the two assessments. The Department proposes using these percentile ranks as the basis for determining which students must be provided Academic Intervention Services during this transition year as this approach ensures that the change in proficiency rates will not result in a significant increase in the percentage of students who must receive AIS. The cut scores that the Department proposes be used will result in districts being required to provide AIS to approximately the same percentages of students Statewide in the 2013-2014 school year as received AIS in the 2012-2013 school year. This is analogous to the action taken by the Regents in 2010 to address the raising of the cut scores on the 2010 Grade 3-8 English language arts and mathematics assessments (see New York State Register, November 10, 2010; EDU-31-10-00004-A).
Specifically, the proposed amendment provides that for the 2013-2014 school year only:
(1) Students scoring below specific scale scores, as set forth in section 100.2(ee)(2)(i)(a)(3) of the proposed rule, for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8, must receive academic intervention instructional services.
(2) Students scoring at or above such scale scores but below level 3/proficient will not be required to receive academic intervention instructional and/or student support services unless the school district deems it necessary.
(3) Each school district shall develop and maintain on file a uniform process by which the district determines whether to offer AIS during the 2013-14 school year to students who scored above such scale scores but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013, and shall either post to its Website or distribute to parents in writing a description of such process no later than November 1, 2013.
The proposed amendment imposes no additional professional services requirements on school districts in rural areas.
3. COMPLIANCE COSTS:
The proposed amendment establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards. School districts may incur some costs associated with distributing to parents of students a written description of the district's process for determining whether AIS will be offered to students who scored at or above who scored at or above specific scale scores, as set forth in section 100.2(ee)(2)(i)(a)(3) of the proposed rule, for English Language Arts and Mathematics examinations administered in each of the grades 3 through 8, but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2012-2013. However, the proposed amendment allows school districts to post the description on its Website in lieu of distributing to parents, and it is anticipated that any associated costs would be minimal and can be absorbed using existing district staff and resources. More importantly, any such costs would be more than offset by the reduction in costs to schools districts resulting from implementation of the modified AIS requirements in the 2013-2014 school year.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement policy enacted by the Board of Regents and establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards. Because the Regents policy upon which the proposed amendment is based applies to all persons seeking a New York State High School Equivalency diploma, 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 establishes modified requirements for the provision of AIS during the 2013-2014 school year to provide flexibility to school districts from the potential impact of an anticipated increase in the number of students required to received AIS as a result of the transition to the new Common Core Learning Standards. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping 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.
