Specific reasons underlying the finding of necessity:
Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the May 2014 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the May 2014 meeting, would be June 17, 2014, the date a Notice of Adoption would be published in the State Register. However, emergency action to adopt the proposed rule is necessary now for the preservation of the general welfare to ensure that the emergency rule adopted at the February Regents meeting, and revised at the March Regents meeting, remains continuously in effect until it can be adopted as a permanent rule and so school districts and BOCES are aware of the requirements for use of an assessment that is not a traditional standardized assessment for grades kindergarten through two for the purposes of annual professional performance reviews for districts/BOCES that opt to use an assessment that is not a traditional standardized third-party assessment in these grades.
It is anticipated that the emergency rule will be presented to the Board of Regents for adoption as a permanent rule at the May 2014 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act for proposed rulemakings.
Subject:
Annual Professional Performance Reviews (APPR).
Purpose:
To clarify the requirements for Districts and Boards of Cooperatives Educational Services (BOCES) that opt to use an assessment that is not a traditional standardized assessment for grades K-2 for purposes of annual professional performance reviews (APPR).
Text of emergency/revised rule:
1. That the emergency rule amending Subpart 30-2 of the Rules of the Board of Regents that was adopted by the Board of Regents as an emergency measure at the February 10-11 meeting is repealed, effective March 11, 2014.
2. Subdivision (b) of section 30-2.2 of the Rules of the Board of Regents shall be amended, effective March 11, 2014, to read as follows:
(b) Approved student assessment shall mean a standardized student assessment approved by the commissioner for inclusion in the State Education Department’s lists of approved standardized student assessments for the locally selected measures subcomponent and/or to measure student growth in non-tested subjects for the State assessment or other comparable measures subcomponent or for grades kindergarten through two, an assessment that is not a traditional standardized assessment that meets the requirements in paragraph (1) of this subdivision.
(1) Approved Assessments in grades kindergarten through two.
(i) Effective March 2, 2014, all standardized assessments for students in kindergarten through grade two shall be removed from the actual list of approved student assessments for use in annual professional performance review plans for the 2014-2015 school year and thereafter and traditional standardized assessments in grades kindergarten through grade two will no longer be approved assessments for these grades. However, an assessment that is not a traditional standardized assessment shall be considered an approved student assessment if the superintendent, district superintendent, or chancellor of a school district/BOCES that chooses to use such assessment certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance.
(ii) Any school district or BOCES with an annual professional performance review plan approved or determined by the Commissioner for use in the 2013-2014 school year that provides for the use of an approved student assessment for students in kindergarten through grade two remains in effect in accordance with Education Law § 3012-c(l)(2) and the district or BOCES may continue to use such assessments until a material change is made and approved by the Commissioner to eliminate such use.
3. Paragraph (2) of subdivision (a) of section 30-2.3 of the Rules of the Board of Regents shall be amended, effective March 11, 2014, to read as follows:
(2) By July 1, 2012, the governing body of each school district and BOCES shall adopt a plan, on a form prescribed by the Commissioner, for the annual professional performance review of all of its classroom teachers and building principals in accordance with the requirements of Education Law § 3012-c and this Subpart, and shall submit such plan to the Commissioner for approval. The plan may be an annual or multi-year plan, for the annual professional performance review of all of its classroom teachers and building principals. The Commissioner shall approve or reject the plan by September 1, 2012, or as soon as practicable thereafter. The Commissioner may also reject a plan that does not rigorously adhere to the provisions of Education Law § 3012-c and the requirements of this Subpart. Should any plan be rejected, the Commissioner shall describe each deficiency in the submitted plan and direct that each such deficiency be resolved through collective bargaining to the extent required under article fourteen of the Civil Service Law. If any material changes are made to the plan, the school district or BOCES must submit the material changes, on a form prescribed by the Commissioner, to the Commissioner for approval. If material changes are made to a plan that solely relate to the elimination of unnecessary assessments on students, the Commissioner shall expedite his or her review of such material changes and solely review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and this Subpart, provided that the superintendent, district superintendent or chancellor shall provide a written explanation of the changes made to the plan, on a form prescribed by the commissioner, and certify that no other material changes have been made to the plan. To the extent that by July 1, 2012 or by July 1 of any subsequent year, if all of the terms of the plan have not been finalized as a result of unresolved collective bargaining negotiations, the entire plan shall be submitted to the Commissioner upon resolution of all of its terms, consistent with Article 14 of the Civil Service Law.
4. A new paragraph (4) shall be added to subdivision (a) of section 30-2.3 of the Rules of the Board of Regents, effective March 11, 2014, to read as follows:
(4) Any plan submitted to the Commissioner on or after March 2, 2014 for use in the 2014-2015 school year and thereafter shall include a signed certification, on a form prescribed by the Commissioner by the superintendent, district superintendent or chancellor, attesting that no more than one percent of total instructional time in each classroom or program of the district or BOCES is spent taking any locally determined traditional standardized third-party assessments from the approved list or traditional standardized district, regional or BOCES developed assessments for purposes of Education Law § 3012-c. This paragraph shall not apply to assessments used for formative or diagnostic purposes.
5. Subparagraph (iii) of paragraph (1) of subdivision (b) of section 30-2.5 of the Rules of the Board of Regents shall be amended, effective March 11, 2014, to read as follows:
(iii) Except as otherwise provided in subparagraphs (i) and (ii) of this paragraph, for classroom teachers who teach one of the core subjects, as defined in this subparagraph, where there is no approved growth or value-growth model at that grade level or in that subject, the school district or BOCES shall measure student growth based on a State-determined district-or BOCES-wide student growth goal setting process using a State assessment if one exists, or a Regents examination or department-approved alternative examination as described in section 100.2(f) of this Title (including, but not limited to, advanced placement examinations, International Baccalaureate examinations, SAT II, etc.). If there is no State assessment or Regents examination for these grades/subjects, the district or BOCES must measure student growth based on the State determined goal-setting process with an approved student assessment, or a department-approved alternative examination as described in section 100.2(f) of this Title or a district, regional or BOCES developed assessment that is rigorous and comparable across classrooms. For purposes of this subparagraph, core subjects shall be defined as science [and social studies in grades six to] grade eight and high school courses in English language arts, mathematics, science and social studies that lead to a Regents examination in the 2010-2011 school year, or a State assessment in the 2012-2013 school year or thereafter. A school district or BOCES shall generate a score from 0 to 20 points for this subcomponent.
6. A new subdivision (e) shall be added to section 30-2.5 of the Rules of the Board of Regents shall be amended, effective March 11, 2014, to read as follows:
(e) Notwithstanding any other provision of this Subpart to the contrary, no annual professional performance review plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third-party or other comparable entity; except that nothing in this subdivision shall preclude the use of school- or-BOCES-wide, group or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner. However, this subdivision shall not apply to any annual professional performance review plan approved or determined by the Commissioner for use in the 2013-2014 school year which remains in effect in the 2014-2015 or thereafter in accordance with Education Law § 3012-c(2)(l).
7. Subdivision (a) of section 30-2.8 of the Rules of the Board of Regents shall be amended, effective March 11, 2014, to read as follows:
(a) Approval of student assessments for the evaluation of classroom teachers and building principals. [An] Except as otherwise provided in subdivision (e) of this section for assessments in grades kindergarten through two, an assessment provider who seeks to place an assessment on the list of approved student assessments under this section shall submit to the Commissioner a written application in a form and within the time prescribed by the Commissioner.
8. Subdivision (e) of section 30-2.8 of the Rules of the Board of Regents shall be amended, effective March 11, 2014, to read as follows:
(e) Pursuant to section 30-2.2 of this Subpart, effective March 2, 2014, the Commissioner will remove the names of any traditional standardized assessments approved for use in kindergarten through grade two from the list of approved assessments for use in the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance.
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 February 26, 2014, I.D. No. EDU-08-14-00023-EP. The emergency rule will expire May 9, 2014.
Emergency rule compared with proposed rule:
Substantial revisions were made in sections 30-2.2(b), 30-2.3(a)(4), 30-2.8(a) and (e).
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:
Peg Rivers, State Education Department, Office of Higher Education, Room 979, Washington Avenue, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@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 Proposed Rule Making in the State Register on February 26, 2014, the following substantial revisions were made to the proposed rule:
Section 30-2.2(b) of the Rules of the Board of Regents clarifies the definition of approved assessment. Specifically, the revised rule clarifies that an approved student assessment shall include, for grades kindergarten through two, an assessment that is not a traditional standardized assessment that meets requirements prescribed by the Commissioner in guidance. It further clarifies that effective March 2, 2014, all standardized assessments for students in kindergarten through grade two shall be removed from the actual list of approved student assessments for use in annual professional performance review plans for the 2014-2015 school year and thereafter and traditional standardized assessments in grades kindergarten through grade two will no longer be approved assessments for these grades. However, an assessment that is not a traditional standardized assessment shall be considered an approved student assessment if the superintendent, district superintendent, or chancellor of a school district/BOCES that chooses to use such assessment certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance.
Section 30-2.3(a)(4) was revised to clarify that the superintendent, district superintendent or chancellor will only have to include traditional standardized third-party assessments and traditional standardized district, regional or BOCES developed assessments in their calculation of the one percent for the certification relating to instructional time and not assessments that are not a traditional standardized assessment.
Sections 30-2.8(a) and (e) of the Rules of the Board of Regents were revised to clarify that the Commissioner will remove the names of any traditional standardized assessments approved for use in kindergarten through grade two from the list of approved assessments for use in the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance.
The above revisions to the proposed require revisions to Needs and Benefits and Paperwork Sections of the previously published Regulatory Impact Statement.
3. NEEDS AND BENEFITS:
The proposed amendment makes a series of changes to Subpart 30-2 of the Rules of the Board of Regents, that support the commitment made by the Board of Regents and the Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in grades kindergarten through second grade are not subject to traditional standardized testing.
First, the proposed amendment provides that no APPR plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third party or other comparable entity. The proposed amendment does not preclude the use of school- or BOCES-wide, group, or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES-developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner.
The proposed amendment provides that effective March 2, 2014, the Department will remove all third-party assessments approved for use in kindergarten through grade two from the list of approved student assessments for use in APPR plans for the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance. The proposed amendment also ensures that any APPR plan that has been approved by the Commissioner for use in the 2013-2014 school year shall remain in effect in accordance with Education Law § 3012-c(2)(l) and those districts and BOCES will be able to continue to use those assessments until a material change is made to their APPR plan to eliminate the use of such assessments.
The proposed amendment further provides that if any district or BOCES wishes to make material changes to a plan that solely relate to the elimination of unnecessary assessments that are used on students for APPR purposes, the Department shall expedite the review of such changes and will only review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and Subpart 30-2.
The proposed amendment also requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of total instructional time in each classroom or program of the district or BOCES is spent taking any locally determined traditional standardized assessments from the state’s approved list or traditional standard assessments that are district, regional or BOCES developed assessments for APPR purposes. This certification does not, however, apply to assessments used for formative or diagnostic purposes.
The proposed amendment also re-defines core subject areas for the State growth or other comparable measures subcomponent to remove sixth through eighth grade social studies and sixth through seventh science from the definition. This revision will help to provide additional, no-cost options to districts and BOCES who may wish to utilize a school-wide, group, or team measure based on one or more State or Regents assessments in sixth through eight social studies and/or sixth through seventh science.
6. PAPERWORK:
The proposed amendment requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of total instructional time in each classroom or program of the district or BOCES is spent taking any locally determined traditional standardized assessments from the state’s approved list or traditional standardized district, regional, or BOCES- developed assessments for APPR purposes. This certification does not, however, apply to assessments used for formative or diagnostic purposes.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on February 26, 2014, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement herewith.
The above revisions to the proposed rule require that the Compliance Cost section of the previously published Regulatory Flexibility Analysis relating to local governments be revised to read as follows:
COMPLIANCE COSTS:
The proposed amendment makes a series of changes to Subpart 30-2 of the Rules of the Board of Regents, that support the commitment made by the Board of Regents and the Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in grades kindergarten through second grade are not subject to traditional standardized testing.
First, the proposed amendment provides that no APPR plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third party or other comparable entity. The proposed amendment does not preclude the use of school- or BOCES-wide, group, or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES-developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner.
The proposed amendment provides that effective March 2, 2014, the Department will remove all third-party assessments approved for use in kindergarten through grade two from the list of approved student assessments for use in APPR plans for the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance. The proposed amendment also ensures that any APPR plan that has been approved by the Commissioner for use in the 2013-2014 school year shall remain in effect in accordance with Education Law § 3012-c(2)(l) and those districts and BOCES will be able to continue to use those assessments until a material change is made to their APPR plan to eliminate the use of such assessments.
The proposed amendment further provides that if any district or BOCES wishes to make material changes to a plan that solely relate to the elimination of unnecessary assessments that are used on students for APPR purposes, the Department shall expedite the review of such changes and will only review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and Subpart 30-2.
The proposed amendment also requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of total instructional time in each classroom or program of the district or BOCES is spent taking any locally determined traditional standardized assessments from the state’s approved list or traditional standard assessments that are district, regional or BOCES developed assessments for APPR purposes. This certification does not, however, apply to assessments used for formative or diagnostic purposes.
The proposed amendment also re-defines core subject areas for the State growth or other comparable measures subcomponent to remove sixth through eighth grade social studies and sixth through seventh science from the definition. This revision will help to provide additional, no-cost options to districts and BOCES who may wish to utilize a school-wide, group, or team measure based on one or more State or Regents assessments in sixth through eight social studies and/or sixth through seventh science.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on February 26, 2014, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.
The above revisions to the proposed rule require that the Reporting, Recordkeeping, and Other Compliance Requirements; and Professional Services Section of the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment makes a series of changes to Subpart 30-2 of the Rules of the Board of Regents, that support the commitment made by the Board of Regents and the Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in grades kindergarten through second grade are not subject to traditional standardized testing.
First, the proposed amendment provides that no APPR plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third party or other comparable entity. The proposed amendment does not preclude the use of school- or BOCES-wide, group, or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES-developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner.
The proposed amendment provides that effective March 2, 2014, the Department will remove all third-party assessments approved for use in kindergarten through grade two from the list of approved student assessments for use in APPR plans for the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined by the Commissioner in guidance, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance. The proposed amendment also ensures that any APPR plan that has been approved by the Commissioner for use in the 2013-2014 school year shall remain in effect in accordance with Education Law § 3012-c(2)(l) and those districts and BOCES will be able to continue to use those assessments until a material change is made to their APPR plan to eliminate the use of such assessments.
The proposed amendment further provides that if any district or BOCES wishes to make material changes to a plan that solely relate to the elimination of unnecessary assessments that are used on students for APPR purposes, the Department shall expedite the review of such changes and will only review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and Subpart 30-2.
The proposed amendment also requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of total instructional time in each classroom or program of the district or BOCES is spent taking any locally determined traditional standardized assessments from the state’s approved list or traditional standard assessments that are district, regional or BOCES developed assessments for APPR purposes. This certification does not, however, apply to assessments used for formative or diagnostic purposes.
The proposed amendment also re-defines core subject areas for the State growth or other comparable measures subcomponent to remove sixth through eighth grade social studies and sixth through seventh science from the definition. This revision will help to provide additional, no-cost options to districts and BOCES who may wish to utilize a school-wide, group, or team measure based on one or more State or Regents assessments in sixth through eight social studies and/or sixth through seventh science.
Revised Job Impact Statement
Since publication of the Notice of Proposed Rule Making in the State Register on February 26, 2014, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.
The proposed rule, as so revised, clarifies the requirements for districts/BOCES who wish to use an assessment that is not a traditional standardized third-party assessment for grades K-2 for APPR purposes. The revised rule will not have a substantial adverse impact on job 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 measures were taken. Accordingly, a job impact statement is not required and one has not been prepared.
