Home » 2014 Issues » February 26, 2014 » EDU-04-14-00004-ERP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
EDU-04-14-00004-ERP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
2/26/14 N.Y. St. Reg. EDU-04-14-00004-ERP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 8
February 26, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-04-14-00004-ERP
Filing No. 132
Filing Date. Feb. 11, 2014
Effective Date. Feb. 11, 2014
Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Amendment of sections 100.4 and 100.18 of Title 8 NYCRR.
Specific reasons underlying the finding of necessity:
On December 20, 2013, the United States Department of Education (USDE) granted the State Education Department a one-year waiver (for the 2013-2014 school year) from Elementary and Secondary Education Act (ESEA) sections 1111(b)(1)(B) and 1111(b)(3)(C)(i) so that the Department may use, with respect to a student who is not yet enrolled in high school but who takes mathematics coursework and the corresponding Algebra I or Geometry Regents Examination in grade 7 or 8, the student's score on that assessment for federal accountability purposes for the grade in which the student is enrolled. However, the result on the Regents Examination in Algebra I (Common Core) or Geometry taken in grade 7 or 8 will not count towards the participation rate or the Performance Index in mathematics for the high school in which they later enroll.
The proposed amendment of section 100.18(b)(14) of the Commissioner's Regulations, which conforms existing regulations with the newly-granted waiver, was adopted as an emergency rule at the January 13-14, 2014 Regents meeting, effective January 14, 2014. Since its January adoption, the proposed amendment has been revised to make a technical, conforming change. Specifically, Commissioner's Regulation section 100.4(e)(2), which requires mathematics assessments to be administered in grades 7 and 8 beginning with the 2005-2006 school year, has been amended to provide that for the 2013-2014 school year, students who attend grade seven or eight may take a Regents examination in mathematics in lieu of or in addition to the Grade 7 or 8 mathematics assessment, in accordance with section 100.18(b)(14) of this Part. This amendment is necessary in order to make section 100.4(e)(2) consistent with the January amendment of section 100.18(b)(14).
It is anticipated that the emergency rule will be presented to the Board of Regents for adoption as a permanent rule at the April 28-29, 2014 Regents meeting, which is the first scheduled meeting after expiration of the 30-day public comment period for revised rulemakings mandated by the State Administrative Procedure Act (SAPA).
Pursuant to SAPA § 203(1), the earliest effective date of the permanent rule, if adopted at the April Regents meeting, is May 14, 2014, the date a Notice of Adoption will be published in the State Register. However, the mathematics assessments for grades 7 and 8 are scheduled to be administered in April. Emergency action is therefore necessary for the preservation of the general welfare to immediately repeal the January emergency rule and adopt the revised proposed amendment, and thereby ensure that local educational agencies (LEAs) are given sufficient notice to timely implement the USDE waiver regarding the administration of Regents Examinations in Algebra I (Common Core) and Geometry to grade 7 and 8 students for the 2013-14 school year.
Subject:
Elementary and Secondary Education Act (ESEA) Flexibility and school and school district accountability.
Purpose:
To provide flexibility to LEAs in the administration of Regents mathematics examinations (Common Core) to students in grades 7-8.
Text of emergency/revised rule:
1. The emergency rule amending paragraph (14) of subdivision (b) of section 100.18 of the Regulations of the Commissioner of Education, which was adopted at the January 13-14, 2014 meeting of the Board of Regents, is repealed, effective February 11, 2014.
2. Paragraph (2) of subdivision (e) of section 100.4 of the Regulations of the Commissioner of Education is amended, effective February 11, 2014, as follows:
(2) Beginning with the 1998-99 school year, the mathematics intermediate assessment shall be administered in grade eight. Beginning with the 2005-2006 school year, mathematics assessments shall be administered in grades seven and eight, provided that, for the 2013-2014 school year, students who attend grade seven or eight may take a Regents examination in mathematics in lieu of or in addition to the grade 7 or 8 mathematics assessment, in accordance with section 100.18(b)(14) of this Part.
3. Paragraph (14) of subdivision (b) of section 100.18 of the Regulations of the Commissioner of Education is amended, effective February 11, 2014, as follows:
(14) Performance levels shall mean:
(i) for elementary and middle grades:
(a) level 1 (well below proficient)
(1) not on track to be proficient: a score of level 1 on State assessments in English language arts and mathematics provided that using the student’s three-year percentile growth targets as established by the commissioner, the student’s growth percentile does not meet or exceed his or her growth percentile target; or the student does not have a growth percentile target; or a score of level 1 on a State alternate assessment; or a score of 64 or less, or a comparable score as approved by the Board of Regents, on a Regents examination in mathematics for a student in grade 7 or grade 8.
(2) on track to be proficient: a score of level 1 on State assessments in English language arts and mathematics, provided that using the student’s three-year percentile growth targets as established by the commissioner, the student’s growth percentile meets or exceeds his or her growth percentile target;
(3) for science: a score of level 1 on State assessments in science or other State assessments, or a score of level 1 on a State alternate assessment;
(b) level 2 (below proficient)
(1) not on track to be proficient: a score of level 2 on State assessments in English language arts and mathematics provided that using the student’s three-year percentile growth targets as established by the commissioner, the student’s growth percentile does not meet or exceed his or her growth percentile target; or the student does not have a growth percentile target; or a score of level 2 on a State alternate assessment;
(2) on track to be proficient: a score of level 2 on State assessments in English language arts and mathematics, provided that using the student’s three-year percentile growth targets as established by the commissioner, the student’s growth percentile meets or exceeds his or her growth percentile target;
(3) for science: a score of level 2 on State assessments in science or other State assessments, or a score of level 2 on a State alternate assessment;
(c) level 3 (proficient)
(1) a score of level 3 on State assessments in English language arts, mathematics and science or a score of level 3 on a State alternate assessment;
(2) a score of 65 or higher, or a comparable score as approved by the Board of Regents, on a Regents Examination in science or mathematics for students in grade seven or eight pursuant to subdivision 100.4(d) of this Part;
(d) level 4 (excels in standards): a score of level 4 on State assessments in English language arts, mathematics and science or a score of level 4 on a State alternate assessment;
(ii) for high school:
(a) level 1 (well below proficient)
(1) a score of 64 or less on the Regents comprehensive examination in English or a Regents mathematics examination;
(2) a failing score on a State-approved alternative examination for those Regents examinations;
(3) a score of level 1 on a State alternate assessment;
(4) a cohort member who has not been tested on the Regents comprehensive examination in English or a Regents mathematics examination or State-approved alternative examination for these Regents examinations;
(b) level 2 (below proficient)
(1) a score between 65 and 74 on the Regents comprehensive examination in English or between 65 and 79 on a Regents examination in mathematics;
(2) a score of level 2 on a State alternate assessment;
(c) level 3 (proficient)
(1) a score between 75 and 89 on the Regents comprehensive examination in English or between 80 and 89 on a Regents examination in mathematics; or [passes] a passing score on a State-approved alternative to those Regents examinations;
(2) a score of level 3 on a State alternate assessment;
(d) level 4 (excels in standards)
(1) a score of 90 or higher on the Regents comprehensive examination in English or a Regents mathematics examination;
(2) a score of level 4 on a State alternate assessment;
(iii) Notwithstanding the provisions of this section:
(a) For students who attend grade 7 or 8 and take a Regents examination in mathematics in the 2013-2014 school year, but do not take the Grade 7 or 8 Mathematics Assessment, participation and accountability determinations for the school in which the student attends grade 7 or 8 shall be based upon such student’s performance on the Regents examination in mathematics. Participation and accountability determinations for the high school in which such student later enrolls shall be based upon such student’s performance on mathematics assessments taken after the student first enters grade 9. For such students, a score of 65 or above, or a comparable score as approved by the Board of Regents, on a Regents Examination in mathematics taken in grade 9 or thereafter will be credited as level 3 for purposes of calculating the High School Performance Index.
(b) For students who attend grade 7 or 8 and who take both the Grade 7 or 8 Mathematics Assessment and a Regents Examination in mathematics during the 2013-2014 school year, participation and accountability determinations for the school such students attend in grade 7 or 8 shall be based upon the student’s performance on the Grade 7 or 8 Mathematics Assessment.
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on January 29, 2014, I.D. No. EDU-04-14-00004-EP. The emergency rule will expire April 11, 2014.
Emergency rule compared with proposed rule:
Substantial revisions were made in section 100.4(e)(2).
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
Data, views or arguments may be submitted to:
Ken Slentz, Deputy Commissioner, State Education Department, Office of P-12 Education, State Education Building 2M West, 89 Washington Ave., Albany, NY 12234, (518) 474-5520, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on January 29, 2014, the proposed amendment has been substantially revised as follows:
Commissioner's Regulation section 100.4(e)(2), which requires mathematics assessments to be administered in grades 7 and 8 beginning with the 2005-2006 school year, has been amended to provide that for the 2013-2014 school year, students who attend grade seven or eight may take a Regents examination in mathematics in lieu of or in addition to the Grade 7 or 8 mathematics assessment, in accordance with section 100.18(b)(14) of this Part. This amendment is necessary in order to make section 100.4(e)(2) consistent with the January amendment of section 100.18(b)(14).
The above revision requires that the NEEDS AND BENEFITS section of the previously published Regulatory Impact Statement be revised to read as follows:
3. NEEDS AND BENEFITS:
At its October 2013 meeting, the Board of Regents directed the State Education Department (SED or “the Department”) to submit a request to the United States Department of Education (USDE) to waive provisions of the federal Elementary and Secondary Education Act (ESEA) [Sections 1111(b)(1)(B) and 1111(b)(3)(C)(i)] that require states to measure the achievement of standards in mathematics using the same assessments for all students.
On December 20, 2013, USDE granted SED a one-year waiver (for the 2013-2014 school year) from ESEA sections 1111(b)(1)(B) and 1111(b)(3)(C)(i) so that the Department may use, with respect to a student who is not yet enrolled in high school but who takes mathematics coursework and the corresponding Algebra I or Geometry Regents Examination in grade 7 or 8, the student's score on that assessment for federal accountability purposes for the grade in which the student is enrolled. However, the result on the Regents Examination in Algebra I (Common Core) or Geometry taken in grade 7 or 8 will not count towards the participation rate or the Performance Index in mathematics for the high school in which they later enroll. The proposed amendment will conform existing regulations with the newly-granted waiver.
Currently, seventh and eighth grade students who are receiving instruction in Algebra I and who take the Regents Examination in Algebra I (Common Core) are also required to take the NYS Common Core Mathematics Test for the grade in which they are enrolled. The same requirement also applies to students who are receiving instruction in Geometry and who take the Regents Examination in Geometry.
Based on the waiver, the proposed amendment to 8 NYCRR sections 100.4(e)(2) and 100.18(b)(14) will permit local educational agencies (LEAs) to administer only the Regents Examination in Algebra I (Common Core) to these students during the 2013-2014 school year, thus eliminating the need for ”double-testing” in grades 7 and 8. This provision also applies to students in grades 7 and 8 who receive instruction in Geometry and who take the Regents Examination in Geometry. The waiver serves to relieve students, teachers, and schools from having to prepare students in seventh and eighth grade who are receiving instruction in Algebra I or Geometry for multiple end-of-year assessments.
The proposed amendment also reflects the way in which student results will be used for institutional accountability purposes under the waiver:
• If a district opts to have accelerated students take the NYS Grade 7 or 8 Common Core Mathematics Test in addition to one or both Regents Examinations in Algebra, the results from the NYS Grade 7 or 8 Common Core Mathematics Test will be used for institutional accountability purposes rather than the results from a Regents Examination in mathematics. Students who take the Regents Examination in Algebra I (Common Core) in grade 7 or 8 will be counted as participants when determining the participation rate in mathematics for the school they attend in grade 7 or 8. The result on the Regents Examination in Algebra I (Common Core) taken in grade 7 or 8 will not count towards the participation rate in mathematics for the high school in which they later enroll. The same rule would apply for any students who take the Regents Examination in Geometry in grade 7 or 8.
• Results for students who take only the Regents Examination in Algebra I (Common Core) in grade 7 or 8 will be incorporated into the Performance Index for the school in which the student is enrolled. Grade 7 or 8 students who accelerate and obtain, at a minimum, the score on the Regents Examination in Algebra I (Common Core) necessary to meet Regents Diploma requirements will, for the purposes of calculating a school’s or a district’s Performance Index, be counted at the “full credit” level. Grade 7 or 8 students who do not obtain scores on the Regents Examination in Algebra I (Common Core) necessary to meet Regents Diploma requirements will earn the school or district ”no credit” for the student’s performance. The same rule will apply to seventh and eighth grade students who take another Regents Examination in mathematics (e.g., Geometry).
• The waiver and proposed regulatory amendments pertain to institutional accountability requirements, not to the requirements that individual students must meet in order to graduate from high school. The waiver does not change (i.e., the waiver neither increases nor decreases) the requirements students must currently meet in order to obtain a diploma. However, for institutional accountability, high schools will only get credit in the Performance Index for Regents exams or their equivalents that are taken after a student first enters ninth grade, even if students have taken Regents exams in math or their equivalents in grade 7 or 8.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on January 29, 2014, the proposed amendment has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revisions does not require any changes to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on January 29, 2014, the proposed amendment has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revisions does not require any changes to the previously published Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on January 29, 2014, the proposed amendment has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The proposed amendment, as revised, relates to public school and school district accountability and is necessary to conform the Commissioner's Regulations to, and to otherwise implement, the one-year waiver (for the 2013-2014 school year) granted to the State Education Department by the United State Department of Education from Elementary and Secondary Education Act (ESEA) sections 1111(b)(1)(B) and 1111(b)(3)(C)(i) so that SED may use, with respect to a student who is not yet enrolled in high school but who takes mathematics coursework and the corresponding Algebra I or Geometry Regents Examination in grade 7 or 8, the student's score on that assessment for federal accountability purposes for the grade in which the student is enrolled. 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.
