PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Addition of section 100.19 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 211-f(15), 215 (not subdivided), 305(1), (2), (20), 308 (not subdivided) and 309 (not subdivided); L. 2015, ch. 56, part EE, subpart H
Subject:
School receivership.
Purpose:
To implement Education Law section 211-f, as added by part EE, subpart H of ch. 56 of the Laws of 2015.
Substance of revised rule:
The Commissioner of Education proposes to add a new section 100.19 of the Commissioner's Regulations. The proposed rule was originally adopted as an emergency action at the June 2015 Regents meeting, effective June 23, 2015 and revised and adopted as an emergency action at the September and October 2015 Regents meetings, and readopted as an emergency action at the December 2015 and January 2016 Regents meeting. A Notice of Revised Rule Making was subsequently published in the State Register on February 24, 2016. The proposed rule has now been further revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith. The following is a summary of the substantive provisions of the revised rule.
Section 100.19(a), Definitions, provides the definitions used in the section, including the definitions of Failing School (Struggling School), Persistently Failing School (Persistently Struggling School), Priority School, School District in Good Standing, School District Superintendent Receiver, Independent Receiver, School District, Community School, Board of Education, Department-approved Intervention Model, School Intervention Plan, School Receiver, Diagnostic Tool for School and District Effectiveness, Consultation and Cooperation, Consultation, Consulting and Day.
§ 100.19(b), Designation of Schools as Failing and Persistently Failing, explains the process by which the Commissioner shall designate schools as Struggling or Persistently Struggling and clarifies that school districts will have the opportunity to present data and relevant information concerning extenuating or extraordinary circumstances faced by the school that should cause it not to be identified as a Struggling or a Persistently Struggling School.
§ 100.19(c), Public Notice and Hearing and Community Engagement, details the process and timeline for notifying parents and the community regarding the Struggling or Persistently Struggling designation, the establishment of a Community Engagement Team, and the role of the Community Engagement Team in the development of recommendations for the identified school. The regulations would require at least one public meeting or hearing annually regarding the status of the school and annual notification to parents of the school’s designation and its implications. The regulations also detail the process by which the hearing shall be conducted and notifications made. Additionally, the subdivision specifies that the district superintendent receiver is required to develop a community engagement plan for approval by the Commissioner.
§ 100.19(d), School District Receivership, specifies that the superintendent shall be vested with the powers of the receiver for Persistently Struggling Schools for the 2015-16 school year and with the powers of the receiver for Struggling Schools for the 2015-16 and 2016-17 school years, provided that there is a Department approved intervention model or comprehensive education plan in place for these school years that includes rigorous performance metrics. The school district superintendent receiver shall provide quarterly written reports regarding implementation of the department-approved intervention model or school comprehensive education plan, and such reports, together with a plain-language summary thereof, shall be made publicly available. At the end of the 2015-16 school year, the Commissioner will review (in consultation and collaboration with the district) the performance of the Persistently Struggling School to determine whether the school can continue under the superintendent receivership or whether the district must appoint an independent receiver for the school. Similarly, the Department will review the performance of Struggling Schools after two years to determine whether the schools can continue under the superintendent receivership or whether the district must appoint an independent receiver for the school.
§ 100.19(e), Appointment of an Independent Receiver, details the timeline and process for appointment of an independent receiver for Persistently Struggling and Struggling Schools and the process by which the Commissioner approves and contracts with the independent receiver. The section also details the power of the Commissioner to appoint an independent receiver if the district fails within sixty days to appoint an independent receiver that meets the Commissioner’s approval. The subdivision clarifies that districts may appoint independent receivers from a department approved list or provide evidence of qualifications of a receiver not on the approved list. Additionally, the subdivision specifies what happens when the Commissioner must appoint an interim receiver.
§ 100.19(f), School Intervention Plan, describes the timeline and process by which the independent receiver will submit to the Commissioner for approval a school intervention plan and the specific components of that plan, including the metrics that will be used to evaluate plan implementation. Each approved school intervention plan must be submitted within six months of the independent receiver’s appointment and this approval is authorized for a period of no more than three years. Each approved school intervention plan must be based on input from stakeholders delineated in the subdivision and a stakeholder engagement plan must be provided to the Commissioner within ten days of the independent receiver entering into a contract with the Commissioner. The school intervention plan must also be based upon recent diagnostic reviews and student achievement data. The independent receiver must provide quarterly reports, and plain-language summaries thereof, regarding the progress of implementing the school intervention plan to the local board of education, the Board of Regents, and the Commissioner. In order to provide additional direction to school districts, the regulations further delineate that in converting a school to a community school, the receiver must follow a particular process and meet minimum program requirements. The subdivision further clarifies that if the independent receiver cannot create an approvable plan, the Commissioner may appoint a new independent receiver.
§ 100.19(g), Powers and Duties of a Receiver, delineates the powers and duties of a school receiver, and the powers and duties that an independent receiver has in developing and implementing a school intervention plan. The independent receiver is required to convert the school to a community school and to submit an approvable school intervention plan to the Commissioner. The receiver (both the superintendent receiver and the independent receiver) has powers that may be exercised in the areas of school program and curriculum development; staffing, including replacement of teachers and administrators; school budget; expansion of the school day or year; professional development for staff; conversion of the school to a charter school; and requesting changes to the collective bargaining agreement at the identified school in areas that impact implementation of the school intervention plan. This section also describes the power of the receiver (both the superintendent and the independent receiver) to supersede decisions, policies, or local school district regulations that the receiver, in his/her sole judgment, believes impedes implementation of the school intervention plan.
Under the provisions of this subdivision, the receiver must notify the board of education, superintendent, and principal when the receiver is superseding their authority. The receiver must provide a reason for the supersession and an opportunity for the supersession to be appealed, all within a timeline prescribed in the regulations. This subdivision also delineates a similar process by which the receiver reviews and makes changes to the school budget and supersedes employment decisions regarding staff employed in schools operating under receivership.
§ 100.19(h), Annual Evaluation of Schools with an Appointed Independent Receiver, describes how the Commissioner, in collaboration and consultation with the district, will conduct an annual evaluation of each school to determine whether the school is meeting the performance goals and progressing in implementation of the school intervention plan. As a result of this evaluation, the Commissioner may allow the receiver to continue with the approved plan or require the receiver to modify the school intervention plan.
§ 100.19(i), Expiration of School Intervention Plan, describes the process by which the Commissioner evaluates the progress of the school under the receiver’s school intervention plan after a three year period. Based on the results of the evaluation, the Commissioner may renew the plan with the independent receiver for not more than three years; terminate the independent receiver and appoint a new receiver; or determine that the school has improved sufficiently to be removed from Failing or Persistently Failing status.
§ 100.19(j), Phase-out and Closure of Failing and Persistently Failing School, states that nothing in these regulations shall prohibit the Commissioner from directing a school district to phase out or close a school, the Board of Regents from revoking the registration of a school, or a district from closing or phasing out a school with the approval of the Commissioner.
§ 100.19(k), regarding the Commissioner’s evaluation of a school receivership program, requires the school receiver to provide any reports or other information requested by the Commissioner, in such form and format and according to such timeline as may be prescribed by the Commissioner, in order for the Commissioner to conduct an evaluation of the school receivership program.
Revised rule making(s) were previously published in the State Register on
October 7, 2015 and November 10, 2015.
Revised rule compared with proposed rule:
Substantive revisions were made in section 100.19(c)(2), (g)(5) and (9).
Text of revised proposed 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 Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Cheryl Atkinson, Associate 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@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 Revised Rule Making in the State Register on February 24, 2016, the following revisions have been made to the proposed rule.
The Notice of Revised Rule Making published in the February 24, 2016 State Register [EDU-27-15-00008-RP] inadvertently omitted language in section 100.19(g)(5)(iii) relating to procedures for collective bargaining (which language was previously added pursuant to the Notice of Emergency Adoption and Revised Rule Making published in the November 10, 2016 State Register [EDU-27-15-00008-ERP]), and replaced the omitted language with language from a prior draft of the proposed rule. Section 100.19(g)(5)(iii) has been revised to reinstate the omitted language and delete the prior draft language.
Section 100.19(c)(2)(i) has been revised to delete language providing that a community engagement team can be a district-level team if one district has several schools in receivership, as long as each receivership school is represented on this district-level team. Such provision is inconsistent with Education Law § 211-f(1-a) which provides for the establishment of a community engagement team for each school designated as failing or persistently failing, and thus precludes a district-level team.
Section 100.19(c)(2)(i) has been revised to delete language providing that a community engagement team may include agencies (e.g.: mental health, health services, social services, early childhood, expanded learning opportunities, mentoring, youth development, early childhood, CTE, workforce development, and higher education institutions) with an integrated focus on rigorous academics and the fostering of a positive and supportive learning environment, and a range of school-based and school-linked programs and services that lead to improved student learning, stronger families, and healthier communities. Specification of types of agencies in the proposed rule is unnecessary and inappropriate and issues involving their inclusion in community engagement teams can be best addressed in guidance.
Section 100.19(g)(9)(iii)(b) has been revised to specify that the timeline referenced therein be determined using business days.
The above changes do not require any changes to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Revised Rule Making in the State Register on February 24, 2016, substantial revisions have been made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above changes do not require any changes to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Revised Rule Making in the State Register on February 24, 2016, substantial revisions have been made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above changes do not require any changes to the previously published Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on February 24, 2016, substantial revisions have been made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The proposed rule, as revised, applies to public schools that are Struggling or Persistently Struggling and placed into receivership and will not result in an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the revised 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.
