PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Revised action:
Addition of section 100.13 and amendment of section 170.12 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2), 211-d(1–9), and L. 2007, ch. 57, part A, section 12
Subject:
Contracts for excellence.
Purpose:
To establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for purposes of preparation of contracts for excellence by certain specified school districts.
Expiration date:
August 13, 2008.
Substance of revised rule:
The State Education Department proposes to add a new section 100.13 and amend sections 170.12 of the Commissioner's Regulations, effective May 8, 2008. The rule is necessary to implement Education Law section 211-d, regarding contracts for excellence.
The proposed amendment was adopted as an emergency measure at the April Regents 2007 meeting, revised and readopted as an emergency rule at the June and July Regents meetings, and readopted as an emergency action at the September, October and January 2008 Regents meetings.
Further revisions are proposed as set forth in the Revised Regulatory Impact Statement. A summary of the revised rule follows.
Section 100.13(a) defines: (1) total foundation aid; (2) supplemental educational improvement plan grant; (3) contract amount; (4) base year; (5) experimental programs; (6) highly qualified teacher; (7) response to intervention program and (8) students with low academic achievement.
Section 100.13(b) establishes applicability provisions for determining whether a school district is required to prepare a contract for excellence. A contract shall be prepared by each district: (1) that has at least one school currently identified as: (a) requiring academic progress; (b) in need of improvement; (c) in corrective action; or (d) in restructuring; and (2) that receives: (a) an increase in total foundation aid compared to the base year in an amount that equals or exceeds either fifteen million dollars or ten percent of the amount received in the base year, whichever is less; or (b) a supplemental educational improvement plan grant. For the 2007–2008 school year, such increase in total foundation aid shall be the amount of the difference between total foundation aid received for the current year and the total foundation aid base as defined in Education Law section 3602(1)(j). In NYC, a contract shall be prepared for the city school district and each community district meeting the above criteria.
Section 100.13(c) provides that each contract shall be in a format, and submitted pursuant to a timeline, prescribed by the Commissioner and shall:
(1) describe how the contract amount shall be used to support new programs and new activities or expand use of programs and activities demonstrated to improve student achievement, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(d); and specify how the contract amount will be distributed in accordance with 100.13(c)(3);
(2) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(d), for which each sub-allocation of the contract amount shall be used and affirm that such programs shall predominately benefit students with the greatest educational needs including, but not limited to: (a) limited English proficient (LEP) students and students who are English language learners (ELL), (b) students in poverty, (c) students with disabilities, and (d) students with low academic achievement;
(3) state, for all funding sources, whether federal, state or local, the instructional expenditures per pupil, the special education expenditures per pupil, and the total expenditures per pupil, projected for the current year and estimated for the base year; provided that no later than February 1 of the current school year, the district shall submit a revised contract stating such expenditures actually incurred in the base year;
(4) include any programmatic data projected for the current year and estimated for the base year, as the Commissioner may require; and
(5) in the NYC school district, include a plan that meets the requirements of section 100.13(d)(2)(i)(a), to reduce average class sizes within five years for the following grade ranges: (a) prekindergarten through grade three; (b) grades four through eight; and (c) grades nine through twelve. Such plan shall be aligned with the capital plan of the NYC school district and include continuous class size reduction for low performing and overcrowded schools beginning in the 2007–2008 school year and thereafter and include the methods to be used to achieve proposed class sizes, such as the creation or construction of more classrooms and school buildings, the placement of more than one teacher in a classroom or methods to otherwise reduce the student to teacher ratio. Beginning in the 2008–2009 school year, such plan shall provide for reductions in class size that, by the end of the 2011–2012 school year, will not exceed the prekindergarten through grade 12 class size targets prescribed by the Commissioner after consideration of the recommendation of an expert panel appointed to review class size research.
Paragraph (3) of section 100.13(c) is added, to clarify requirements for the use of contract for excellence funds.
The Commissioner shall approve each contract meeting the provisions of section 100.13(c) and certify, for each contract, that the expenditure of additional aid or grant amounts is in accordance with Education Law section 211-d(2). Approval shall be given to contracts demonstrating to the Commissioner's satisfaction that the allowable programs selected:
(i) predominately benefit students with the greatest educational needs;
(ii) predominately benefit students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools; and
(iii) are based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards.
Section 100.13(d) establishes the allowable programs and activities, including experimental programs. Section 100.13(d)(1) establishes general requirements, including that such programs and activities: (1) predominately benefit students with the greatest educational needs including, but not limited to: LEP and ELL students, students in poverty, students with disabilities, and students with low academic achievement; (2) predominately benefit students in schools identified as requiring academic progress, in need of improvement, in corrective action, or restructuring and address the most serious academic problems in those schools; (3) be consistent with federal and State statutes and regulations governing the education of such students; (4) be developed in reference to practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards; (5) where applicable, be accompanied by high quality, sustained professional development focused on content pedagogy, curriculum development, and/or instructional design in order to ensure successful implementation of each program and activity; (6) ensure that expenditures of the contract amount shall be used to supplement and not supplant funds expended by the district in the base year for such purposes; (7) ensure that all additional instruction is provided by appropriately certified teachers or highly qualified teachers where required by section 120.6 of this Title, emphasizing skills and knowledge needed to facilitate student attainment of State learning standards; and (8) be coordinated with all other allowable programs and activities included in the district's contract as part of the district's comprehensive educational plan.
Section 100.13(d)(2) establishes criteria for specific allowable programs and activities, which shall include: (1) class size reduction for (a) the NYC school district and (b) all other school districts; (2) student time on task; (3) teacher and principal quality initiatives; (4) middle school and high school restructuring; and (5) full-day kindergarten or prekindergarten programs.
Section 100.13(d)(2)(i) establishes requirements for class size reduction, including special provisions for NYC. NYC must allocate some of its total contract amount to class size reduction according to a plan, included in their contract and approved by the Commissioner pursuant to section 100.13(c), to reduce the average class size for the following grade ranges: prekindergarten to grade three, grades four through eight, and grades nine through twelve, commencing in the 2007–2008 school year and ending in the 2011–2012 school year, to target levels recommended by the expert panel appointed by the Commissioner. Districts outside of NYC shall establish class size reduction goals in the 2007–2008 school year and demonstrate measurable progress towards meeting such goals; and beginning with the 2008–2009 school year, shall demonstrate measurable progress towards meeting the target levels recommended by the expert panel. The rule also mandates NYC give priority to prekindergarten through grade 12 students in schools requiring academic progress, correction, improvement or in restructuring and to overcrowded schools. Furthermore, it requires that classrooms created shall provide adequate and appropriate physical space to students and staff, among others. Class size reduction may be accomplished through the creation of additional classrooms and buildings, through assignment of more than one teacher to a classroom or, in NYC, by other methods to reduce the student to teacher ratio, as approved by the Commissioner.
Section 100.13(d)(2)(ii) provides that allowable programs and activities related to student time on task may be accomplished by: (1) lengthened school days, (2) lengthened school years and (3) dedicated instructional time, including individual intervention, tutoring and student support services.
Section 100.13(d)(2)(iii) prescribes requirements for teacher and principal quality initiatives, including: (1) recruitment and retention of teachers, (2) mentoring for teachers and principals in their first or second year of a new assignment, (3) incentive programs for teacher placement, (4) instructional coaches, and (5) school leadership coaches. Districts shall ensure that an appropriately certified, or highly qualified teacher where required under section 120.6, is in every classroom and an appropriately certified principal is assigned to every school.
Section 100.13(d)(2)(iv) provides that allowable programs and activities for middle and high school restructuring include: (1) instructional program changes to improve student achievement and attainment of the State learning standards and (2) structural organization changes. The section further requires that districts choosing to make organization changes must also make instructional program changes.
Section 100.13(d)(2)(v) provides that allowable programs and activities for full-day kindergarten or prekindergarten programs include: (1) a minimum full school day program, (2) a minimum full school day program with additional hours for children and families, (3) a minimum full school day program with additional hours in collaboration with community based agencies (prekindergarten only), and (4) classroom integration programs for students with disabilities (specifically for full-day prekindergarten).
Section 100.13(d)(3) lists the following requirements for experimental programs, not included in the allowable programs and activities described above: (1) a maximum percentage of the contract amount that may be used for experimental programs, (2) a plan must be submitted to the Commissioner, (3) the program must be based on an established theoretical base supported by research or other comparable evidence, (4) the implementation plan for an experimental program must be accompanied by a program evaluation plan based on empirical evidence to assess the impact on student achievement, and (5) the experimental program may be in partnership with an institution of higher education or other organization with extensive research experience and capacity.
Section 100.13(d)(3)(ii) states provides a maximum amount of up to $30 million dollars or twenty-five percent of the contract amount, whichever is less, that districts may use in the 2007–2008 school year to maintain existing programs and activities listed in Education Law section 211-d(3)(a).
Section 100.13(e) establishes criteria for the development of the contract for excellence pursuant to a public process, in consultation with parents or persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c, which shall include at least one public hearing. Special provisions for NYC's development of the contracts are included.
Section 100.13(f) establishes requirements to assure procedures are in place by which parents may bring complaints concerning implementation of a district's contract for excellence, including special provisions for the NYC.
Section 100.13(g) establishes requirements for the public reporting by districts of their school-based expenditures of total foundation aid.
Section 170.12(e)(1), relating to requirements of an annual audit of school district records, is amended to provide that, for schools required to prepare a contract for excellence pursuant to Education Law section 211-d, the annual audit for the year such contract is in effect shall also include a certification by the accountant or, where applicable, the NYC comptroller, in a form prescribed by the Commissioner, that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes.
Revised rule compared with proposed rule:
Substantial revisions were made in section 100.13(a)(8), (c)(1), (2), (3), (d)(1), (e) and (f).
Revised rule making(s) were previously published in the State Register on
August 8, 2007 and August 15, 2007.
Text of revised proposed rule and any required statements and analyses may be obtained from:
Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Johanna Duncan-Poitier, Senior Deputy Commissioner of Education — P16, Education Department, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, (518) 474-3862, e-mail: p16education@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 Revised Rule Making in the State Register on August 15, 2007, the proposed rule was revised as follows.
Section 100.13(a)(8) is added to define “students with low academic achievement.”
Section 100.13(c)(1)(ii), (c)(2)(i) and (d)(1)(i)(a) is revised to add “students with low academic achievement” to the list of student groups comprising “students with the greatest educational needs.”
Section 100.13(c)(1)(iii) is revised, and a new paragraph (3) of section 100.13(c) added, to clarify requirements for use of contract for excellence funds, including that at least 75 percent of the contract amount be distributed to benefit students having the greatest educational needs.
Sections 100.13(e) and (f) are revised to specify requirements relating to the conduct of the public process to develop contracts and the complaint process.
The above revisions require the following sections of the Regulatory Impact Statement be revised as follows:
COSTS:
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant, additional costs beyond those inherent in the statute.
a. Costs to State government: None.
b. Costs to local governments:
(i) Sustained Professional Development
Assuming two extra days per year of sustained professional development for contract for excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, a total annual cost for all of the districts of $400,000 per year is estimated (treating NYC as 34 districts — one high school district, one special education district and thirty-two community school districts).
(ii) Other Costs
Costs will vary depending on a district's selection of allowable programs and activities. Particular activities where the cost imposed could be large include the following: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs must be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-base intervention; and analyzing, gathering and compiling the necessary research to support their proposed programs and activities. Assuming each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new teachers at $53,000 per year/per teacher (salary plus benefits), an annual cost of $9,435,000 is estimated.
(iii) Public Process Costs
Costs are associated with providing notice of the public comment period and public hearings, including translations where applicable, and preparation of the public comment record and assessment. Cost scope and size will vary by district size, State region, contract allocation, and the nature of the proposed interventions.
For example, in the case of Alexander, a small rural district with the smallest total contract amount award Statewide, and a single school in accountability status, the costs should be a few thousand dollars or less. District mailings, newspaper advertising and website postings can be included with existing, similar routine district tasks, resulting in marginal added expense; and there should be little/no need for translations. The average cost of a column inch of advertising space in similar rural districts is around $7. A half page, posted twice during the comment period, results in about $1,000 costs: ($7 per inch × 70 inches × 2 days = $980).
In New York City, the costs would be much greater, including translation services, and greater reliance on print media to reach individuals lacking computer access. A half page advertisement posted twice in the following publications would impose a cost in excess of $115,000: African-American Observer ($59 per inch × 70 inches × 2 = $8,260); El Diario/La Prensa ($60 × 70 × 2 = $8,400); and the New York Post ($711 × 70 × 2 = $99,540).
We anticipate minimal costs for preparation of the public comment record and assessment to be absorbed using existing staff and resources.
(iv) Complaint Process Costs
We anticipate additional, marginal costs for creating a complaint form and providing notice of complaint procedures, which are anticipated to be absorbed using existing staff and resources.
Translation costs for a small-to-medium size district may amount to a few hundred dollars: professional translation of a 1000 word legal document into Latin-American Spanish could be procured for $165; and the same document for Korean, Haitian-Creole, Caribbean-Spanish and Chinese could cost $650. New York City might need several translations into the more than 100 languages spoken there. It is anticipated that translations for the complaint process can be included within other translating functions performed by the City's Department of Education, including centralized service in-house, in a cost-effective manner. However, any concomitant economies of scale this district might benefit from, would be offset by the higher costs of doing business there and the sheer number of languages to be translated. These two documents could also be posted to the district's website, or be sent out via other mailings, thereby incurring a small marginal cost.
The rule also requires districts make reasonable efforts to investigate complaints by parents, and notify the complainants of their determination within 30 days of its receipt. The rule provides for appeal procedures. These costs are hard to estimate and should vary by the size and scope of the contract and its allowable program activities. It is expected that the amount of professional, including legal and perhaps investigative or inspector general staff time (in the case of the NYC Department of Education) would not be insignificant in light of the importance of the contract for excellence and its public prominence as a school improvement initiative. One might also expect to see more complaints initially and fewer over time as the public process for developing contracts for excellence results in more public buy-in to the programs in which districts are investing. So, for example, if initially two days of investigation were required for each million dollars of Foundation Aid subject to Contract for Excellence requirements, and districts paid, on average, $500 for a day of investigative services, and total Foundation Aid subject to Contract for Excellence requirements were $400 million in 2008–09 (this figure was $428 million in 2007–08), the cost statewide would be $400,000.
c. Costs to private, regulated parties: None.
d. Costs to the Department of implementation and continuing compliance:
There may be additional costs for convening an expert panel by the Commissioner to determine class size ranges. The cost will vary depending on the “formality” of the process. If a study by an outside consultant or firm were commissioned by the panel, for example, the anticipated expense might be in the tens of thousands of dollars. A less formal process might only have costs for travel and necessary supplies.
LOCAL GOVERNMENT MANDATES
Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.
School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form and instructions for use.
Districts shall provide reasonable notice to parents of students or persons in parental relation to students of the procedures for bringing a complaint concerning implementation of the contract for excellence, and provide translations of the complaint form and procedures into the languages other than English most commonly spoken in the district.
Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website. Districts may use additional methods to provide notice, including making copies available in schools and district offices, and including copies in district mailings and distributions.
PAPERWORK
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
Districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings, on contracts, and provide reasonable notice, including:
(1) a general description of the contract;
(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;
(3) information where to obtain a copy of the proposed contract; and
(4) a description of the public comment process and public hearing process.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form and instructions for its use. The form shall specify the locations and deadline for filing.
Districts shall provide reasonable notice to parents or persons in parental relation, of the procedures for bringing a complaint concerning implementation of the district's contract; and the locations and deadline for filing.
Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district.
Districts shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website, and may also use additional methods to provide notice.
The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.
Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.
Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, written notice shall be provided the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.
COMPLIANCE SCHEDULE
Contracts for 2007–2008 were approved in November 2007 and will apply to expenditures through June 30, 2008. Districts will need to prepare and submit reports to the Department during Fall 2008 summarizing program activities, expenditures and results under their programs, and will need to have an independent audit performed and submitted to the Department.
Planning for the second year of the program (2008–2009) is ongoing and occurring concurrently. Changes in program regulations and requirements may occur as a result of the budgetary and legislative process. It is anticipated that a similar compliance scheduler under Chapter 57 of the Laws of 2008 will pertain, with districts required to submit or update their contracts by July 1, 2008 and the Department approving such contracts or updates by August 1, 2008.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 15, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule require that the following sections of the previously published Regulatory Flexibility Analysis be revised as follows.
COMPLIANCE REQUIREMENTS
Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. The notice shall include:
(1) a general description of the contract;
(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;
(3) information where to obtain a copy of the proposed contract; and
(4) a description of the public comment process and public hearing process.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form and instructions for use.
Districts shall provide reasonable notice to parents of students or persons in parental relation to students of the procedures for bringing a complaint concerning implementation of the contract for excellence, and provide translations of the complaint form and procedures into the languages other than English most commonly spoken in the district.
Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website. Districts may use additional methods to provide notice, including making copies available in schools and district offices, and including copies in district mailings and distributions.
The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.
Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.
Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, the trustees, board or chancellor shall provide written notice of the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.
COMPLIANCE COSTS
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant, additional costs beyond those inherent in the statute.
The new requirements will result in additional costs to school districts, as follows:
(i) Sustained Professional Development
If it is assumed that there will need to be two extra days per year of sustained professional development for contract of excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, it is estimated that there might be a total annual cost for all of the districts of $400,000 per year (for purposes of this calculation, NYC was treated as thirty-four districts — one high school district, one special education district and thirty-two community school districts).
(ii) Other Costs
Depending on a district's selection of allowable programs and activities, it is possible that there will be additional costs. Particular activities where the cost imposed could be large include the following: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs must be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-based intervention; and analyzing, gathering and compiling the necessary research to support their proposed contract for excellence programs and activities. To approximate the total yearly costs associated with these items, it is estimated that each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $9,435,000 for all contract districts.
(iii) Public Process Costs
Costs are associated with providing notice of the public comment period and public hearings, including translations where applicable, and preparation of the public comment record and assessment. Cost scope and size will vary by district size, State region, contract allocation, and the nature of the proposed interventions.
For example, in the case of Alexander, a small rural district with the smallest total contract amount award Statewide, and a single school in accountability status, the costs should be a few thousand dollars or less. District mailings, newspaper advertising and website postings can be included with existing, similar routine district tasks, resulting in marginal added expense; and there should be little/no need for translations. The average cost of a column inch of advertising space in similar rural is around $7. A half page, posted twice during the comment period, results in about $1,000 costs: ($7 per inch × 70 inches × 2 days = $980).
In New York City, the costs would be much greater, including translation services, and greater reliance on print media to reach individuals lacking computer access. A half page advertisement posted twice in the following publications would impose a cost in excess of $115,000: African-American Observer ($59 per inch × 70 inches × 2 = $8,260); El Diario/La Prensa ($60 × 70 × 2 = $8,400); and the New York Post ($711 × 70 × 2 = $99,540).
We anticipate minimal costs for preparation of the public comment record and assessment, to be absorbed using existing staff and resources.
(iv) Complaint Process Costs
We anticipate additional, marginal costs for creating a complaint form and providing notice of complaint procedures, which are anticipated to be absorbed using existing staff and resources.
Translation costs for a small-to-medium size district may amount to a few hundred dollars: professional translation of a 1000 word legal document into Latin-American Spanish could be procured for $165; and the same document for Korean, Haitian-Creole, Caribbean-Spanish and Chinese could cost $650. New York City might need several translations into the more than 100 languages spoken there. It is anticipated that translations for the complaint processes can be included within other translating functions performed by the City's Department of Education, including centralized service in-house, in a cost-effective manner. However, any concomitant economies of scale this district might benefit from, would be offset by the higher costs of doing business there and the sheer number of languages to be translated. These two documents could also be posted to the district's website, or be sent out via other mailings, thereby incurring a small marginal cost.
The rule also requires districts make reasonable efforts to investigate complaints by parents, and notify the complainants of their determination within 30 days of its receipt. The rule provides for appeal procedures. These costs are hard to estimate and should vary by the size and scope of the contract and its allowable program activities. It is expected that the amount of professional, including legal and perhaps investigative or inspector general staff time (in the case of the NYC Department of Education) would not be insignificant in light of the importance of the contract for excellence and its public prominence as a school improvement initiative. One might also expect to see more complaints initially and fewer over time as the public process for developing contracts for excellence results in more public buy-in to the programs in which districts are investing. So, for example, if initially two days of investigation were required for each million dollars of Foundation Aid subject to Contract for Excellence requirements, and districts paid, on average, $500 for a day of investigative services, and total Foundation Aid subject to Contract for Excellence requirements were $400 million in 2008–09 (this figure was $428 million in 2007–08), the cost statewide would be $400,000.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The economic and technological feasibility of compliance with the rule by local governments is made easier by the fact that the rule imposes very few compliance requirements that are not already imposed by the authorizing statute. Moreover, those reporting requirements imposed by the statute are made feasible by the fact that they are generally automated and web-based, using data entry screens and edit checks. In addition, nothing in the rule prohibits local governments from using funds to procure professional services, such as certified professional accountants, software developers or experts in curriculum and instruction, or education research, all of whom may be necessary to meet the rule's requirements.
LOCAL GOVERNMENT PARTICIPATION:
Guidance memos to school districts and their component schools were sent out from the Senior Deputy Commissioner for P-16 education of the State Education Department on April 4, April 9, June 21 and June 25, 2007. In these documents, the Education Department sought the input, impact, questions and feedback of the proposed rule on districts as well as communicating in broad terms, how the contract would be implemented. Moreover, on April 12, 2007 districts were invited to meet with key Department stakeholders, including teleconferencing abilities for those district personnel unable to travel to Albany. In these memoranda, the Department communicated that staff in the Department's Office of School Operations and Management Services were available to respond to questions from 9 AM to 7:30 PM, from April 9–12. Copies of the proposed rule were also provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment.
Following approval of the contracts by the Commissioner in November 2007, a meeting was held in Troy, New York on December 19, 2007 to engage in collaborative discussions with representatives of each Contract for Excellence school districts. 82 superintendents and school district representatives attended the full-day session, along with many others participating via a web cast. Constructive feedback was sought and received on what worked well in the first year and areas for improvement. Changes to the proposed 2008–2009 legislation, regulations and the on-line contract system have been made and will continue to develop as a direct result of these meetings and discussions.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 15, 2007, the proposed rule has been substantially revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule require that the following sections in the previously published Rural Area Flexibility Analysis be revised as follows.
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. The notice shall include:
(1) a general description of the contract;
(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;
(3) information where to obtain a copy of the proposed contract; and
(4) a description of the public comment process and public hearing process.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form and instructions for use.
Districts shall provide reasonable notice to parents of students or persons in parental relation to students of the procedures for bringing a complaint concerning implementation of the contract for excellence, and provide translations of the complaint form and procedures into the languages other than English most commonly spoken in the district.
Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website. Districts may use additional methods to provide notice, including making copies available in schools and district offices, and including copies in district mailings and distributions.
The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.
Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.
Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, the trustees, board or chancellor shall provide written notice of the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.
Depending on which allowable programs and activities are chosen, districts may be required to hire or procure experts in: teacher professional development, curriculum and/or instructional design, school improvement and other related tasks and professional functions.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
COSTS:
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant, additional costs beyond those inherent in the statute.
The new requirements will result in additional costs to school districts, as follows:
(i) Sustained Professional Development
If it is assumed that there will need to be two extra days per year of sustained professional development for contract of excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, it is estimated that there might be a total annual cost for all of the districts of $400,000 per year (for purposes of this calculation, NYC was treated as thirty-four districts — one high school district, one special education district and thirty-two community school districts).
(ii) Other Costs
Depending on a district's selection of allowable programs and activities, it is possible that there will be additional costs. Particular activities where the cost imposed could be large include the following: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs must be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-based intervention; and analyzing, gathering and compiling the necessary research to support their proposed contract for excellence programs and activities. To approximate the total yearly costs associated with these items, it is estimated that each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $9,435,000 for all contract districts.
(iii) Public Process Costs
Costs are associated with providing notice of the public comment period and public hearings, including translations where applicable, and preparation of the public comment record and assessment. Cost scope and size will vary by district size, State region, contract allocation, and the nature of the proposed interventions.
For example, in the case of Alexander, a small rural district with the smallest total contract amount award Statewide, and a single school in accountability status, the costs should be a few thousand dollars or less. District mailings, newspaper advertising and website postings can be included with existing, similar routine district tasks, resulting in marginal added expense; and there should be little/no need for translations. The average cost of a column inch of advertising space in similar rural is around $7. A half page, posted twice during the comment period, results in about $1,000 costs: ($7 per inch × 70 inches × 2 days = $980).
In New York City, the costs would be much greater, including translation services, and greater reliance on print media to reach individuals lacking computer access. A half page advertisement posted twice in the following publications would impose a cost in excess of $115,000: African-American Observer ($59 per inch × 70 inches × 2 = $8,260); El Diario/La Prensa ($60 × 70 × 2 = $8,400); and the New York Post ($711 × 70 × 2 = $99,540).
We anticipate minimal costs for preparation of the public comment record and assessment, to be absorbed using existing staff and resources.
(iv) Complaint Process Costs
We anticipate additional, marginal costs for creating a complaint form and providing notice of complaint procedures, which are anticipated to be absorbed using existing staff and resources.
Translation costs for a small-to-medium size district may amount to a few hundred dollars: professional translation of a 1000 word legal document into Latin-American Spanish could be procured for $165; and the same document for Korean, Haitian-Creole, Caribbean-Spanish and Chinese could cost $650. New York City might need several translations into the more than 100 languages spoken there. It is anticipated that translations for the complaint processes can be included within other translating functions performed by the City's Department of Education, including centralized service in-house, in a cost-effective manner. However, any concomitant economies of scale this district might benefit from, would be offset by the higher costs of doing business there and the sheer number of languages to be translated. These two documents could also be posted to the district's website, or be sent out via other mailings, thereby incurring a small marginal cost.
The rule also requires districts make reasonable efforts to investigate complaints by parents, and notify the complainants of their determination within 30 days of its receipt. The rule provides for appeal procedures. These costs are hard to estimate and should vary by the size and scope of the contract and its allowable program activities. It is expected that the amount of professional, including legal and perhaps investigative or inspector general staff time (in the case of the NYC Department of Education) would not be insignificant in light of the importance of the contract for excellence and its public prominence as a school improvement initiative. One might also expect to see more complaints initially and fewer over time as the public process for developing contracts for excellence results in more public buy-in to the programs in which districts are investing. So, for example, if initially two days of investigation were required for each million dollars of Foundation Aid subject to Contract for Excellence requirements, and districts paid, on average, $500 for a day of investigative services, and total Foundation Aid subject to Contract for Excellence requirements were $400 million in 2008–09 (this figure was $428 million in 2007–08), the cost statewide would be $400,000.
RURAL AREA PARTICIPATION:
The proposed rule was submitted for discussion and comment to the Department's Rural Education Advisory Committee that includes representatives of school districts in rural areas as well as the Rural Schools Association. Guidance memos to school districts and their component schools were sent out from the Senior Deputy Commissioner for P-16 education of the State Education Department on April 4, April 9, June 21 and June 25, 2007. In these documents, the Education Department sought the input, impact, questions and feedback of the proposed rule on districts as well as communicating in broad terms, how the contract would be implemented. Moreover, on April 12, 2007 districts were invited to meet with key Department stakeholders, including teleconferencing abilities for those district personnel unable to travel to Albany. In these memoranda, the Department communicated that staff in the Department's Office of School Operations and Management Services were available to respond to questions from 9 AM to 7:30 PM, from April 9–12. Copies of the proposed rule were also provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment.
Following approval of the contracts by the Commissioner in November 2007, a meeting was held in Troy, New York on December 19, 2007 to engage in collaborative discussions with representatives of each Contract for Excellence school districts. 82 superintendents and school district representatives attended the full-day session, along with many others participating via a web cast. Constructive feedback was sought and received on what worked well in the first year and areas for improvement. Changes to the proposed 2008–2009 legislation, regulations and the on-line contract system have been made and will continue to develop as a direct result of these meetings and discussions.
Job Impact Statement
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on August 15, 2007, the proposed rule has been substantially revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The proposed rule, as so revised, is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the rule 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.
