PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 120.4 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 305(1), (2) and (33), 308 (not subdivided), 309 (not subdivided) and 3713(1) and (2)
Subject:
Supplemental Educational Services (SES).
Purpose:
To prescribe requirements regarding the use of rewards and incentives by SES providers; revise reporting dates for SES providers and local educational agencies (LEAs); and correct inaccurate references in the SES regulations.
Text of final rule:
Pursuant to Education Law sections 101, 207, 305, 308, 309 and 3713
1. Paragraph (2) of subdivision (d) of section 120.4 of the Regulations of the Commissioner of Education is amended, effective March 8, 2007, as follows:
(2) The commissioner shall approve an eligible applicant for inclusion on the department's list of approved supplemental educational service providers, upon the commissioner's determination that its application satisfies each of the following criteria:
(i) …
(ii) …
(iii) …
(iv) …
(v) …
(vi) …
(vii) …
(viii) …
(ix) the applicant is fiscally sound and will be able to fulfill its agreement to provide services to the eligible child and the local educational agency pursuant to paragraph [(f)(6)](f)(8) of this section;
(x) …
(xi) …
(xii) …
(xiii) the applicant shall provide additional assurances that:
(a) …
(b) …
(c) …
(d) …
(e) the applicant will provide parents and teachers of eligible students receiving supplemental educational services and the appropriate title I LEA with information on the progress of such students in increasing achievement in a format, and to the extent practicable, in a language or other mode of communication that such parents can understand; [and]
(f) the applicant has adequate insurance for liability, property loss and personal injury involving students receiving supplemental educational services from the applicant; and
(g) the applicant shall not make any offer or advertisement of rewards, gifts, incentives, gratuities, payments, or compensation of any kind to parents, students, LEAs, LEA staff and/or school staff for purposes of, or tending to have the effect of, soliciting enrollment, encouraging parents to switch providers once students are enrolled, and/or attempting to influence parents, students, LEAs, LEA staff and/or school staff; provided that nothing herein shall be deemed to prohibit the use, as part of the instructional program, of nominal rewards or incentives as defined in subparagraph (xvii) of paragraph (8) of subdivision (f) of this section.
2. A new paragraph (3) of subdivision (d) of section 120.4 of the Regulations of the Commissioner of Education is added, effective March 8, 2007, as follows:
(3) Where an applicant uses alternate methods for delivery of services, which may include online, Internet-based approaches, as well as other distance-learning technologies, the provision of equipment, including computers, to students to use or keep as a means of receiving such supplemental educational services, must be approved by the commissioner as part of the applicant's instructional program.
3. Subdivision (f) of section 120.4 of the Regulations of the Commissioner of Education is amended, effective March 8, 2007, as follows:
(f) Local educational agency responsibilities. A title I LEA that is required to arrange for the provision of supplemental educational services with an approved provider pursuant to section 1116(e) of the NCLB, 20 U.S.C. section 6316(e) (Public Law, section 107-110, section 1116[e], 115 STAT. 1491-1494; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234) shall:
(1) …
(2) …
(3) …
(4) …
(5) …
(6) …
(7) …
(8) contact providers selected by the parents and enter into a contractual agreement with each such provider that includes:
(i) …
(ii) …
(iii) …
(iv) …
(v) …
(vi) …
(vii) …
(viii) …
(ix) …
(x) …
(xi) …
(xii) …
(xiii) …
(xiv) …
(xv) …
(xvi) a requirement that the provider submit to the title I LEA, [commencing on May 31, 2003 and annually thereafter,] annually on or before September 30, a final written report in a form prescribed by the commissioner that summarizes the progress of eligible students provided with supplemental educational services during the preceding academic year, pursuant to its agreement(s) with the local educational agency;
(xvii) a provision stating: “The provider is prohibited from making any offer or advertisement of rewards, gifts, incentives, gratuities, payments, or compensation of any kind to parents, students, LEAs, LEA staff and/or school staff for purposes of, or tending to have the effect of, soliciting enrollment, encouraging parents to switch providers once students are enrolled, and/or attempting to influence parents, students, LEAs, LEA staff and/or school staff; provided that nothing herein shall be deemed to prohibit the use, as part of the instructional program, of nominal rewards or incentives as defined in 8 NYCRR section 120.4(f)(8)(xvii).”
For purposes of this subparagraph, a nominal reward or incentive is defined as an award or incentive that:
(a) does not exceed a total value of $25 per student per year;
(b) is directly linked to documented meaningful attendance benchmarks and/or completion of assessment and program objectives; and
(c) is approved by the commissioner as part of the provider's instructional program.
(9) monitor the following:
(i) …
(ii) the responsibilities of each approved provider with which the title I LEA has contracted with to:
(a) …
(b) …
(c) …
(d) …
(e) comply with the applicable contractual agreement pursuant to paragraph [(5)] (8) of this subdivision;
(10) notify the State Education Department of any noncompliance by an approved provider with respect to the provider's responsibilities as listed in subparagraph [(7)(ii)] (9)(ii) of this subdivision, including immediate notification of the department of any noncompliance involving a threat to the health and/or safety of students;
(11) [commencing on June 30, 2003 and annually thereafter,] submit to the State Education Department, annually on or before October 31, a monitoring report of supplemental educational services provided during the preceding academic year, in a form prescribed by the commissioner, together with a copy of each provider's report prepared pursuant to subparagraph [(5)(xvi)] (8)(xvi) of this subdivision.
Final rule as compared with last published rule:
Nonsubstantive changes were made in introductory paragraph 1.
Text of 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
Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on December 6, 2006, a nonsubstantive revision was made to the proposed rule. In the introductory paragraph numbered 1., a reference to “division” (d) of section 120.4 of the Commissioner's Regulations was corrected to read “subdivision.”
The proposed rule, as so revised, does not require any changes to the Regulatory Impact Statement previously published herein.
Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on December 6, 2006, a nonsubstantive revision to the proposed rule was made as described in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The proposed rule, as so revised, does not require any changes to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments.
Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on December 6, 2006, a nonsubstantive revision to the proposed rule was made as described in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The proposed rule, as so revised, does not require any changes to the previously published Rural Area Flexibility Analysis.
Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on December 6, 2006, a nonsubstantive revision to the proposed rule was made as described in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The proposed amendment, as so revised, relates to the provision of supplemental educational services by school districts, boards of cooperative educational services (BOCES), charter schools, and private non-profit and for-profit providers pursuant to section 1116(e) of the federal No Child Left Behind Act of 2001, Pub. L. 107-110. The proposed revised amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the regulation 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.
