EDU-09-11-00007-EP Technical Amendment of Section 100.2(ee)(2)
3/2/11 N.Y. St. Reg. EDU-09-11-00007-EP
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 9
March 02, 2011
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-09-11-00007-EP
Filing No. 175
Filing Date. Feb. 15, 2011
Effective Date. Feb. 15, 2011
Technical Amendment of Section 100.2(ee)(2)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of section 100.2(ee)(2) of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 305(1) and (2), 308 (not subdivided), 309 (not subdivided) and 3204(3)
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The amendments concerning diploma credit for languages other than English (LOTE) and State assessments in Social Studies, that were adopted at the December 2010 Regents meeting (EDU-40-10-00022-P), inadvertently omitted language in section 100.2(ee)(2) that was added in a prior, separate amendment concerning Academic Intervention Services, that was permanently adopted at the October 2010 Regents meeting (EDU-31-10-00004-P). The proposed amendment is necessary to clarify and resolve this inconsistency by including the omitted language.
Since 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 May 16-17, 2011 Regents meeting. Because SAPA 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 May Regents meeting, is June 8, 2011. However, the inconsistencies in section 100.2(ee)(2) need to be resolved immediately in order to avoid confusion and ensure that the regulation's provisions are properly administered during the 2010-2011 school year pursuant to Regents policy.
Emergency action is necessary for the preservation of the general welfare to immediately clarify and resolve inconsistencies in section 100.2(ee)(2) of the Commissioner's Regulations, and therefore ensure that the regulation's provisions are properly administered during the 2010-2011 school year, pursuant to the policies established by the Board of Regents.
Subject:
Technical amendment of section 100.2(ee)(2).
Purpose:
To add language that was inadvertently omitted in a previous rule making.
Text of emergency/proposed rule:
Paragraph (2) of subdivision (ee) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective February 15, 2011, as follows:
(2) Requirements for providing academic intervention services in grade [four] 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 school year only, the following shall apply:
(1) those students scoring at or below a scale score of 650 shall receive academic intervention instructional services; and
(2) those students scoring above a scale score of 650 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 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and shall no later than the commencement of the first day of instruction either post to its Website or distribute to parents in writing a description of such process; 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 clause (iii) of this paragraph;
(ii) . . .
(iii) . . .
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire May 15, 2011.
Text of rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 473-8296, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
John B. King, Jr., Senior Deputy Commissioner P-12, State Education Department, State Education Building Room 125, 89 Washington Ave., Albany, NY 12234, (518) 474-3862, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
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.
3. NEEDS AND BENEFITS:
The amendments concerning diploma credit for languages other than English (LOTE) and State assessments in Social Studies, that were adopted at the December 2010 Regents meeting (EDU-40-10-00022-A), inadvertently omitted language in section 100.2(ee)(2) that was added in a prior, separate amendment concerning Academic Intervention Services, that was permanently adopted at the October 2010 Regents meeting (EDU-31-10-00004-A). The proposed amendment is necessary to clarify and resolve this inconsistency by including the omitted language.
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 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. 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 above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010. 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 2010-2011 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 establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. As part of the modified requirements, 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 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
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 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
7. DUPLICATION:
The proposed amendment does not duplicate existing State or federal regulations.
8. ALTERNATIVES:
There were no significant alternatives and none were considered.
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
1. EFFECT OF RULE:
The amendment applies to each school district within the State.
2. COMPLIANCE REQUIREMENTS:
The amendments concerning diploma credit for languages other than English (LOTE) and State assessments in Social Studies, that were adopted at the December 2010 Regents meeting (EDU-40-10-00022-A), inadvertently omitted language in section 100.2(ee)(2) that was added in a prior, separate amendment concerning Academic Intervention Services, that was permanently adopted at the October 2010 Regents meeting (EDU-31-10-00004-A). The proposed amendment is necessary to clarify and resolve this inconsistency by including the omitted language.
The amendment establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. As part of the modified requirements, 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 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
Specifically, the amendment provides that for the 2010-2011 school year only:
(1) Students scoring at or below a scale score of 650 must receive academic intervention instructional services.
(2) Students scoring above a scale score of 650 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 2010-11 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-10, and shall post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
(4) In recognition of the effects on school districts of a change in cut scores for such school year, a waiver is given for the 2010-2011 school year from the requirement that school districts review and revise their description of AIS based on student performance results.
3. PROFESSIONAL SERVICES:
The amendment imposes no additional professional service requirements on school districts.
4. COMPLIANCE COSTS:
The amendment establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. 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 above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010. 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 2010-2011 school year.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The amendment does not impose any technological requirements on school districts. Economic feasibility is addressed under the Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The purpose of the amendment is to provide flexibility to school districts in providing academic intervention services (AIS) during the 2010-2011 school year in order to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
Comments on the amendment 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 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 amendments concerning diploma credit for languages other than English (LOTE) and State assessments in Social Studies, that were adopted at the December 2010 Regents meeting (EDU-40-10-00022-A), inadvertently omitted language in section 100.2(ee)(2) that was added in a prior, separate amendment concerning Academic Intervention Services, that was permanently adopted at the October 2010 Regents meeting (EDU-31-10-00004-A). The proposed amendment is necessary to clarify and resolve this inconsistency by including the omitted language.
The amendment establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. As part of the modified requirements, 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 2010-2011 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010, and to either post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
Specifically, the amendment provides that for the 2010-2011 school year only:
(1) Students scoring at or below a scale score of 650 must receive academic intervention instructional services.
(2) Students scoring above a scale score of 650 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 2010-11 school year to students who scored above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-10, and shall post to its Website or distribute to parents in writing a description of such process no later than the commencement of the first day of instruction.
(4) In recognition of the effects on school districts of a change in cut scores for such school year, a waiver is given for the 2010-2011 school year from the requirement that school districts review and revise their description of AIS based on student performance results.
The amendment imposes no additional professional services requirements on school districts in rural areas.
3. COMPLIANCE COSTS:
The amendment establishes modified requirements for the provision of AIS during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency. 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 above a scale score of 650 but below level 3/proficient on a grade 3-8 English language arts or mathematics State assessment in 2009-2010. 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 2010-2011 school year.
4. MINIMIZING ADVERSE IMPACT:
The amendment provides flexibility to school districts in providing academic intervention services (AIS) during the 2010-2011 school year in order to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.
5. RURAL AREA PARTICIPATION:
Comments on the amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The amendment establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency.
The amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have a positive impact, or 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.
