PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 100.19 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207(not subdivided), 211-f(15), 215(not subdivided), 305(1), (2), (20), 308(not subdivided) and 309(not subdivided); L. 2015, ch. 56, subpart H, part EE
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The purpose of the proposed rulemaking is to implement section 211-f of Education Law, as added by Subpart H of Part EE of Chapter 56 of the Laws of 2015, pertaining to school receivership. Section 211-f designates current Priority Schools that have been in the most severe accountability status since the 2006-07 school year as “Persistently Failing Schools” and vests the superintendent of the district with the powers of an independent receiver. The superintendent is given an initial one-year period to use the enhanced authority of a receiver to make demonstrable improvement in student performance at the “Persistently Failing School” or the Commissioner will direct that the school board appoint an independent receiver and submit the appointment for approval by the Commissioner. Failing Schools, schools that have been Priority Schools since the 2012-13 school year, will be given two years under a “superintendent receiver” (i.e., the superintendent of schools of the school district vested with the powers a receiver would have under section 211-f) to improve student performance. Should the school fail to make demonstrable progress in two years then the district will be required to appoint an independent receiver and submit the appointment for approval by the Commissioner. Independent Receivers are appointed for up to three school years and serve under contract with the Commissioner.
The proposed rulemaking adds a new section 100.19 to align the Commissioner's Regulations with Education Law 211-f, and addresses the Regents Reform Agenda and New York State's updated accountability system. Adoption of the proposed rule is necessary to ensure seamless implementation of the provisions of Education Law § 211-f, and will provide school districts with additional powers to impact improvement in academic achievement for students in the lowest performing schools.
The proposed rule was adopted by emergency action at the June 15-16, 2015 Regents meeting, effective July 1, 2015. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on July 8, 2015. The proposed amendment was substantially revised in response to public comment and, as revised, adopted by emergency action at the September 12-13, 2015 Regents meeting, effective September 21, 2015. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on October 7, 2015. The proposed rule was further revised to add procedures for the Commissioner’s resolution of collective bargaining issues and, as revised, adopted by emergency action at the October 26-27, 2015 Regents meeting, effective October 27, 2015. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on November 10, 2015.
At the December 2015 Regents meeting, the proposed rule was readopted as an emergency action to ensure that the rule remains continuously in effect until it can be presented and take effect as a permanent rule. The Department is considering additional changes to the proposed rule and additional time is needed to review the proposed rule’s provisions before presenting the rule for permanent adoption. However, the December emergency rule will expire on February 21, 2016, before the next scheduled Regents meeting on February 22-23, 2016. A lapse in the rule could disrupt the process of school receivership pursuant to Education Law section 211-f.
Emergency action at the January 11-12, 2016 Regents meeting is necessary for the preservation of the general welfare in order to ensure that the emergency rule adopted at the December 2015 Regents meeting remains continuously in effect until it can be presented for permanent adoption and take effect as a permanent rule.
It is anticipated that the proposed rule will be presented for adoption as a permanent rule at a subsequent Regents meeting, after publication of a Notice of Revised Rule Making and expiration of the 30-day public comment period for revised rule makings.
Subject:
School receivership.
Purpose:
To implement Education Law section 211-f, as added by part EE, subpart H of ch. 56 of the Laws of 2015.
Substance of emergency rule:
The Commissioner of Education proposes to add a new section 100.19 of the Commissioner's Regulations. The proposed rule was originally adopted as an emergency action at the June 2015 Regents meeting, effective June 23, 2015 and revised and adopted as an emergency action at the September and October 2015 Regents meetings, and readopted as an emergency action at the December 2015 Regents meeting. The proposed rule has now been adopted as an emergency action at the January 11-12, 2016 Regents meeting in order to ensure that the emergency rule adopted at the December 2015 Regents meeting remains continuously in effect until it can be presented for permanent adoption and take effect as a permanent rule. The following is a summary of the substantive provisions of the emergency rule.
Section 100.19(a), Definitions, provides the definitions used in the section, including the definitions of Failing School (Struggling School), Persistently Failing School (Persistently Struggling School), Priority School, School District in Good Standing, School District Superintendent Receiver, Independent Receiver, School District, Community School, Board of Education, Department-approved Intervention Model, School Intervention Plan, School Receiver, Diagnostic Tool for School and District Effectiveness, Consultation and Cooperation, Consultation, Consulting and Day.
§ 100.19(b), Designation of Schools as Failing and Persistently Failing, explains the process by which the Commissioner shall designate schools as Struggling or Persistently Struggling and clarifies that school districts will have the opportunity to present data and relevant information concerning extenuating or extraordinary circumstances faced by the school that should cause it not to be identified as a Struggling or a Persistently Struggling School.
§ 100.19(c), Public Notice and Hearing and Community Engagement, details the process and timeline for notifying parents and the community regarding the Struggling or Persistently Struggling designation, the establishment of a Community Engagement Team, and the role of the Community Engagement Team in the development of recommendations for the identified school. The regulations would require at least one public meeting or hearing annually regarding the status of the school and annual notification to parents of the school’s designation and its implications. The regulations also detail the process by which the hearing shall be conducted and notifications made. Additionally, the subdivision specifies that the district superintendent receiver is required to develop a community engagement plan for approval by the Commissioner.
§ 100.19(d), School District Receivership, specifies that the superintendent shall be vested with the powers of the receiver for Persistently Struggling Schools for the 2015-16 school year and with the powers of the receiver for Struggling Schools for the 2015-16 and 2016-17 school years, provided that there is a Department approved intervention model or comprehensive education plan in place for these school years that includes rigorous performance metrics. The school district superintendent receiver shall provide quarterly written reports regarding implementation of the department-approved intervention model or school comprehensive education plan, and such reports, together with a plain-language summary thereof, shall be made publicly available. At the end of the 2015-16 school year, the Commissioner will review (in consultation and collaboration with the district) the performance of the Persistently Struggling School to determine whether the school can continue under the superintendent receivership or whether the district must appoint an independent receiver for the school. Similarly, the Department will review the performance of Struggling Schools after two years to determine whether the schools can continue under the superintendent receivership or whether the district must appoint an independent receiver for the school.
§ 100.19(e), Appointment of an Independent Receiver, details the timeline and process for appointment of an independent receiver for Persistently Struggling and Struggling Schools and the process by which the Commissioner approves and contracts with the independent receiver. The section also details the power of the Commissioner to appoint an independent receiver if the district fails within sixty days to appoint an independent receiver that meets the Commissioner’s approval. The subdivision clarifies that districts may appoint independent receivers from a department approved list or provide evidence of qualifications of a receiver not on the approved list. Additionally, the subdivision specifies what happens when the Commissioner must appoint an interim receiver.
§ 100.19(f), School Intervention Plan, describes the timeline and process by which the independent receiver will submit to the Commissioner for approval a school intervention plan and the specific components of that plan, including the metrics that will be used to evaluate plan implementation. Each approved school intervention plan must be submitted within six months of the independent receiver’s appointment and this approval is authorized for a period of no more than three years. Each approved school intervention plan must be based on input from stakeholders delineated in the subdivision and a stakeholder engagement plan must be provided to the Commissioner within ten days of the independent receiver entering into a contract with the Commissioner. The school intervention plan must also be based upon recent diagnostic reviews and student achievement data. The independent receiver must provide quarterly reports, and plain-language summaries thereof, regarding the progress of implementing the school intervention plan to the local board of education, the Board of Regents, and the Commissioner. In order to provide additional direction to school districts, the regulations further delineate that in converting a school to a community school, the receiver must follow a particular process and meet minimum program requirements. The subdivision further clarifies that if the independent receiver cannot create an approvable plan, the Commissioner may appoint a new independent receiver.
§ 100.19(g), Powers and Duties of a Receiver, delineates the powers and duties of a school receiver, and the powers and duties that an independent receiver has in developing and implementing a school intervention plan. The independent receiver is required to convert the school to a community school and to submit an approvable school intervention plan to the Commissioner. The receiver (both the superintendent receiver and the independent receiver) has powers that may be exercised in the areas of school program and curriculum development; staffing, including replacement of teachers and administrators; school budget; expansion of the school day or year; professional development for staff; conversion of the school to a charter school; and requesting changes to the collective bargaining agreement at the identified school in areas that impact implementation of the school intervention plan. This section also describes the power of the receiver (both the superintendent and the independent receiver) to supersede decisions, policies, or local school district regulations that the receiver, in his/her sole judgment, believes impedes implementation of the school intervention plan.
Under the provisions of this subdivision, the receiver must notify the board of education, superintendent, and principal when the receiver is superseding their authority. The receiver must provide a reason for the supersession and an opportunity for the supersession to be appealed, all within a timeline prescribed in the regulations. This subdivision also delineates a similar process by which the receiver reviews and makes changes to the school budget and supersedes employment decisions regarding staff employed in schools operating under receivership.
§ 100.19(h), Annual Evaluation of Schools with an Appointed Independent Receiver, describes how the Commissioner, in collaboration and consultation with the district, will conduct an annual evaluation of each school to determine whether the school is meeting the performance goals and progressing in implementation of the school intervention plan. As a result of this evaluation, the Commissioner may allow the receiver to continue with the approved plan or require the receiver to modify the school intervention plan.
§ 100.19(i), Expiration of School Intervention Plan, describes the process by which the Commissioner evaluates the progress of the school under the receiver’s school intervention plan after a three year period. Based on the results of the evaluation, the Commissioner may renew the plan with the independent receiver for not more than three years; terminate the independent receiver and appoint a new receiver; or determine that the school has improved sufficiently to be removed from Failing or Persistently Failing status.
§ 100.19(j), Phase-out and Closure of Failing and Persistently Failing School, states that nothing in these regulations shall prohibit the Commissioner from directing a school district to phase out or close a school, the Board of Regents from revoking the registration of a school, or a district from closing or phasing out a school with the approval of the Commissioner.
§ 100.19(k), regarding the Commissioner’s evaluation of a school receivership program, requires the school receiver to provide any reports or other information requested by the Commissioner, in such form and format and according to such timeline as may be prescribed by the Commissioner, in order for the Commissioner to conduct an evaluation of the school receivership program.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-27-15-00008-EP, Issue of July 8, 2015. The emergency rule will expire April 21, 2016.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law § 207 empowers Regents/ Commissioner to adopt rules to carry out State education laws and functions/ duties conferred by law.
Education Law § 305(1) and (2) provide Commissioner, as chief executive officer, with general supervision over schools and institutions subject to Education Law or education-related statutes, and responsibility for executing all Regents educational policies. § 305(20) provides Commissioner has additional powers/duties as charged by Regents.
Education Law § 211-f, as added by Part EE, Subpart H of Ch. 56, L.2015, provides for appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance.
Education Law § 215 authorizes Commissioner to require schools/districts to submit reports containing information prescribed by Commissioner.
Education Law § 308 authorizes Commissioner to enforce/give effect to Education Law provisions or other general/special law pertaining to education.
Education Law § 309 charges Commissioner with general supervision of schoolboards.
2. LEGISLATIVE OBJECTIVES:
The rule is consistent with the above authority and is necessary to implement Education Law § 211-f, by establishing criteria for appointment of receivers to assist low-performing schools.
3. NEEDS AND BENEFITS:
Education Law § 211-f designates current Priority Schools that have been in most severe accountability status since 2006-07 school year as “Persistently Failing Schools” (identified in rule as “Persistently Struggling Schools”), vests school district superintendent with powers of an independent receiver; and gives superintendent initial one-year period to use enhanced authority of receiver to make demonstrable improvement in student performance at the “Persistently Struggling School” or Commissioner will direct that schoolboard appoint independent receiver and submit appointment for Commissioner’s approval. Independent receivers are appointed for up to three school years and serve under contract with Commissioner. Additionally, school will be eligible for a portion of $75 million in State aid to support/implement its turnaround efforts over a two-year period. Failing Schools (identified in rule as “Struggling Schools”), schools that have been Priority Schools since 2012-13 school year, will be given an initial two-year period under a “superintendent receiver” (i.e., school district superintendent of schools vested with powers of receiver) to improve student performance. Should school fail to make demonstrable improvement in two years then district must appoint independent receiver and submit appointment for Commissioner’s approval.
§ 211-f provides persons/entities vested with powers of receiver new authority to develop school intervention plan; convert schools to community schools providing wrap-around services; reallocate funds in school’s budget; expand school day/school year; establish professional development plans; order conversion of school to charter school; remove staff and/or require staff to reapply for employment in collaboration with staffing committee; and negotiate collective bargaining agreements, with unresolved issues submitted to Commissioner for decision.
At end of one- or two-year period in which Persistently Struggling or Struggling school remains under district control, and annually thereafter, Commissioner must determine whether school should be removed from designation, allowed to continue to be operated by school district under superintendent receiver, or be placed under independent receiver appointed by schoolboard with sole responsibility to manage/operate school. Schools operating under independent receiver must be annually evaluated by Commissioner to determine whether school intervention plan should be continued/modified. At end of independent receivership period, Commissioner must decide whether to end receivership, continue it, or appoint new receiver. Additionally, Commissioner may order closure of Struggling school and Regents may revoke school’s registration.
4. COSTS:
(a) Costs to State government: $75 million is appropriated for period July 1, 2015 to March 31, 2017 to support turnaround efforts in Persistently Struggling Schools.
(b) Costs to local government: The rule is necessary to implement Education Law § 211-f and, consequently, major mandates of rule are statutorily imposed. SED anticipates because $75 million has been appropriated to support turnaround efforts in Persistently Struggling Schools during the 2015-16 and 2016-17 school years, there will be no costs to local governments for implementing school receivership in these schools during these years.
There are currently 17 schools/districts that may potentially have one or more schools identified as Struggling or Persistently Struggling. Annual costs to implement school receivership will vary widely depending on number of factors, including but not limited to: size of school enrollment, demographics of school population and grade configuration of the school; whether independent receiver is assigned to a school and district required to convert school to community school; and degree to which school receiver chooses to use receiver’s authority to take actions such as extending school day/school year; expanding/modifying curriculum/program offerings; replacing teachers/administrators; increasing salaries of teachers/administrators; improving hiring, induction, teacher evaluation, professional development, teacher advancement, school culture, organizational structure; adding kindergarten or pre-kindergarten programs; and/or re-staffing school. SED estimates on average it will cost district approximately $50,000 per school to meet rule’s requirements regarding providing written annual notifications to parents of students attending Struggling or Persistently Struggling school; conducting at least one public meeting/hearing annually to discuss school’s performance and the construct of receivership; establishing and implementing community engagement team; providing quarterly written reports to schoolboard, Commissioner and the Regents; amending comprehensive school improvement plans or Department-approved intervention plans to meet rule’s requirements; and submitting information necessary to allow Commissioner to determine whether school is making demonstrable improvement. SED estimates in event that large high school (2,000 plus students) is placed in independent receivership, is implementing community school program, and independent receiver chooses to utilize all of receiver’s authority, annual costs of implementation of receivership could be in range of $4 million to $5.5 million dollars.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: SED has received no additional funding to administrate this program. However, SED estimates it will cost annually between $65,000 and $800,000 per year to conduct additional visits to receivership schools to provide information in support of determinations on whether schools have made demonstrable improvement, depending on size and composition of review teams, length of visits, and type of reports written. SED further anticipates it will need to devote approximately $500,000 per year in staff time to coordinate receivership program, including providing technical assistance/support, evaluating performance, selecting independent receivers, and developing/overseeing their contracts. To extent SED does not receive additional funding, SED will be required to reallocate existing resources and diminish support for other program initiatives.
5. LOCAL GOVERNMENT MANDATES:
The rule is necessary to implement Education Law § 211-f by establishing criteria for appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance. Consequently, major mandates of rule are statutorily imposed.
Upon Commissioner’s designation of a school as Struggling or Persistently Struggling, the schoolboard shall conduct at least one public meeting/ hearing annually to discuss the performance of designated school and receivership, and provide translators and provide reasonable notice to public of meeting/hearing.
No later than twenty days following designation, district shall establish community engagement team, comprised of community stakeholders with direct ties to the school, to develop recommendations for improvement of the school and solicit input through public engagement.
The superintendent receiver shall develop community engagement plan in such form. format and according to such timeline as prescribed by Commissioner and shall submit such plan for Commissioner’s approval.
The district shall continue to operate a Persistently Struggling school for an additional school year and a Struggling school for an additional two school years, provided there is a Department-approved intervention model or comprehensive education plan in place that includes rigorous performance metrics and goals, and a community engagement plan. The superintendent shall be vested with the powers of independent receiver but shall not be required to prepare school intervention plan or convert school to community school.
In the event SED revokes provisional approval or approval of an intervention model or comprehensive education plan, Commissioner shall require district to appoint and submit for Commissioner’s approval an independent receiver to manage and operate the school.
The district shall consult with community engagement team, in accordance with approved community engagement plan, with respect to modifications to district’s approved intervention model or comprehensive education plan.
Within 60 days of Commissioner’s determination to place a school into receivership, district shall appoint an independent receiver and submit appointment for Commissioner’s approval. If district fails to appoint independent receiver that meets the Commissioner’s approval, Commissioner shall appoint independent receiver.
The district shall fully cooperate with independent receiver and willful failure to cooperate with or interference with functions of such receiver shall constitute willful neglect of duty under Education Law § 306.
No later than 30 business days prior to presentation of a school budget at budget hearing, the schoolboard shall provide school receiver with a copy of proposed district budget including any school-based budget, that shall include a specific delineation of all funds and resources the school receiver shall have available to manage and operate the school and services and resources that the district shall provide to the school. Upon receipt of the school receiver’s proposed budget modifications, the schoolboard shall incorporate the modifications into the proposed budget and present it to the public or return modifications for reconsideration for reasons specified in writing. The school receiver shall notify schoolboard in writing of receiver’s decision and determination of the school receiver shall be incorporated into the budget. The school receiver and the schoolboard shall provide the Commissioner with an electronic copy of all correspondence related to modification of the school budget.
6. PAPERWORK:
Upon Commissioner’s designation of a school as Struggling or Persistently Struggling, the schoolboard shall provide written notice of designation to parents/persons in parental relation no later than 30 days following designation, and by June 30th of each school year the school remains so identified.
The district shall provide written notice of public meeting/hearing held annually for purposes of discussing the performance of the designated school and receivership.
The superintendent receiver shall provide quarterly written reports regarding implementation of the Department-approved intervention model or school comprehensive education plan, and such reports, together with a plain-language summary thereof, shall be publicly available.
Quarterly reports of school receiver shall be publicly available in school district’s offices and posted on school district’s website, if one exists.
No later than ten business days after a schoolboard has acted upon an employment decision pertaining to staff assigned to a Struggling or Persistently Struggling school, or a school that the Commissioner has determined shall be placed into receivership, the schoolboard shall provide school receiver with a copy of the action taken, which shall not go into effect until it has been reviewed by the school receiver. Upon receipt of any proposed modifications to an employment decision, the schoolboard shall adopt the modifications at the next regularly scheduled board meeting or return the modification within 10 days for reconsideration with the reasons specified in writing. The board shall approve modifications required by receiver at its next regularly scheduled meeting. The receiver and schoolboard shall provide Commissioner with an electronic copy of all correspondence related to such employment decisions.
The school receiver shall provide Commissioner with any reports or other information requested, in such form and format and according to such timeline as may be prescribed, in order for Commissioner to conduct an evaluation of the receivership program.
7. DUPLICATION:
The rule is necessary to implement Education Law § 211-f and does not duplicate, overlap or conflict with State or federal legal requirements.
8. ALTERNATIVES:
The rule is necessary to implement Education Law § 211-f by establishing criteria for the appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance. Consequently, the major provisions of the rule are statutorily imposed, and there are no significant alternatives and none were considered.
9. FEDERAL STANDARDS:
There are no applicable federal standards for the appointment of receivers pursuant to Education Law § 211-f.
10. COMPLIANCE SCHEDULE:
The rule is necessary to implement Education Law § 211-f by establishing criteria for the appointment of receivers for Persistently Struggling Schools and Struggling Schools. Consequently, the major provisions of the proposed rule are statutorily imposed. It is anticipated that regulated parties can achieve compliance with the proposed rule by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed rule is necessary to implement Education Law § 211-f, as added by Subpart H of Part EE of Chapter 56 of the Laws of 2015, by establishing criteria for the appointment of receivers to assist low performing schools and does not impose any adverse economic impact, reporting, record keeping or any other compliance requirement on small businesses. Because it is evident from the nature of the rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Government:
1. EFFECT OF RULE:
The proposed rule applies to those school districts that have:
(1) “Persistently Failing Schools” (identified in the regulation as a “Persistently Struggling Schools”), which are Priority Schools that have been in the most severe accountability status since the 2006-07 school year, and/or
(2) Failing Schools (identified in the regulation as “Struggling Schools”), which are schools that have been in Priority Schools status since the 2012-13 school year.
There are currently 17 school districts that have Persistently Struggling Schools and/or Struggling Schools.
2. COMPLIANCE REQUIREMENTS:
The rule is necessary to implement Education Law section 211-f by establishing criteria for the appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance. Consequently, the major mandates of the proposed rule are statutorily imposed. Major mandates of the proposed rule include: the development of a community engagement plan in a form and format and according to a timeline as prescribed by the Commissioner, the creation of a community engagement team, full cooperation of the district with the independent receiver, and the completion of quarterly reports by the independent receiver. In April 2015, Subpart H of Part EE of Chapter 56 of the Laws of 2015 created a new Education Law § 211-f. The statute designates current Priority Schools that have been in the most severe accountability status since the 2006-07 school year as “Persistently Failing Schools” (identified in the proposed regulation as “Persistently Struggling Schools” and vests the superintendent of the district with the powers of an independent receiver. The superintendent is given an initial one-year period to use the enhanced authority of a receiver to make demonstrable improvement in student performance at the “Persistently Struggling School” or the Commissioner will direct that the school board appoint an independent receiver and submit the appointment for approval by the Commissioner. Additionally, the school will be eligible for a portion of $75 million in State aid to support and implement its turnaround efforts over a two-year period. Failing Schools (identified in the regulation as “Struggling Schools”), schools that have been Priority Schools since the 2012-13 school year, will be given two years under a “superintendent receiver” (i.e., the superintendent of schools of the school district vested with the powers a receiver would have under § 211-f) to improve student performance. Should the school fail to make demonstrable improvement in two years then the district will be required to appoint an independent receiver and submit the appointment for approval by the Commissioner. Independent receivers are appointed for up to three school years and serve under contract with the Commissioner.
Education Law § 211-f provides persons or entities vested with the powers of a receiver new authority to, among other things, develop a school intervention plan; convert schools to community schools providing wrap-around services; reallocate funds in the school’s budget; expand the school day or school year; establish professional development plans; order the conversion of the school to a charter school consistent with applicable state laws; remove staff and/or require staff to reapply for their jobs in collaboration with a staffing committee; and negotiate collective bargaining agreements, with any unresolved issues submitted to the Commissioner for decision.
At the end of the one- or two-year period in which a school designated as Persistently Struggling or as Struggling remains under district control, and annually thereafter, the Commissioner must determine whether the school should be removed from such designation; allowed to continue to be operated by the school district with the superintendent receiver; or be placed under an independent receiver who shall be appointed by the school board and shall have the responsibility to manage and operate the school. Schools operating under an independent receiver must also be annually evaluated by the Commissioner to determine whether the school intervention plan should be continued or modified. At the end of the independent receivership period, the Commissioner must decide whether to end the receivership, continue it, or appoint a new receiver. Additionally, the Commissioner may order the closure of a Persistently Struggling or Struggling School and the Board of Regents may revoke the registration of a school.
Upon the Commissioner’s designation of a school as Struggling or Persistently Struggling, the board of education shall conduct at least one public meeting or hearing annually for purposes of discussing the performance of the designated school and receivership. The district shall provide translators and provide reasonable notice to the public of the meeting/hearing.
The school district superintendent receiver shall provide quarterly written reports regarding implementation of the department-approved intervention model or school comprehensive education plan, and such reports, together with a plain-language summary thereof, shall be made publicly available.
No later than twenty days following designation, the school district shall establish a community engagement team, comprised of community stakeholders with direct ties to the school, to develop recommendations for improvement of the school and solicit input through public engagement.
The superintendent shall develop a community engagement plan in such form and format and according to such timeline as may be prescribed by the Commissioner and shall submit such plan to the Commissioner for approval.
The school district shall continue to operate a school identified as Persistently Struggling for one additional school year and a school identified as Struggling for two additional school years, provided there is a Department-approved intervention model or comprehensive education plan in place that includes rigorous performance metrics and goals, and a community engagement plan. The superintendent shall be vested with the powers of an independent receiver.
In the event the Department revokes the provisional approval or approval of an intervention model or comprehensive education plan, the Commissioner shall require the school district to appoint and submit for the Commissioner’s approval an independent receiver to manage and operate the school.
The district shall consult with the community engagement team in accordance with the approved community engagement plan, with respect to modifications to the district’s approved intervention model or comprehensive education plan.
Within 60 days of Commissioner’s determination to place a school into receivership, the district shall appoint an independent receiver and submit the appointment to the Commissioner for approval. If the school district fails to appoint an independent receiver that meets the Commissioner’s approval, the Commissioner shall appoint the independent receiver.
The school district shall fully cooperate with the independent receiver and willful failure to cooperate with or interfere with the functions of such receiver shall constitute willful neglect of duty under Education Law section 306.
No later than 30 business days prior to presentation of a school budget at the budget hearing, the school board shall provide the school receiver with a copy of the proposed district budget including any school-based budget, that shall include a specific delineation of all funds and resources the school receiver shall have available to manage and operate the school and the services and resources that the school district shall provide to the school. Upon receipt of the school receiver’s proposed budget modifications, the school board shall incorporate the modifications into the proposed budget and present it to the public or return the modifications for reconsideration for reasons specified in writing. The school receiver shall notify the school board in writing of the decision and the determination shall be incorporated into the budget. The school receiver and the school board shall provide the Commissioner with an electronic copy of all correspondence related to modification of the school budget.
Upon the Commissioner’s designation of a school as Struggling or Persistently Struggling, the board of education shall provide written notice of the designation to parents/persons in parental relation no later than 30 days following designation, and by June 30th of each school year the school remains so identified.
The school district shall provide written notice of the public meeting or hearing held annually for purposes of discussing the performance of the designated school and receivership.
The school district superintendent receiver shall provide quarterly written reports regarding implementation of the department-approved intervention model or school comprehensive education plan, and such reports, together with a plain-language summary thereof, shall be publicly available.
Quarterly reports of the independent receiver shall be publicly available in the school district’s offices and posted on the school district’s website, if one exists.
No later than ten business days after a school board has acted upon an employment decision pertaining to staff assigned to a Struggling or Persistently Struggling School, or a school that the Commissioner has determined shall be placed into receivership, the school board shall provide the school receiver with a copy of the action taken, which shall not go into effect until it has been reviewed by the school receiver. Upon receipt of any proposed modifications to an employment decision, the school board shall adopt the modifications at the next regularly scheduled board meeting or return the modification within 10 days for reconsideration with the reasons specified in writing. The board shall approve modifications required by the receiver at its next regularly scheduled meeting. The receiver and school board shall provide the Commissioner with an electronic copy of all correspondence related to such employment decisions.
The school receiver shall provide the Commissioner with any reports or other information requested, in such form and format and according to such timeline as may be prescribed, in order for the Commissioner to conduct an evaluation of the receivership program.
3. PROFESSIONAL SERVICES:
The rule is necessary to implement Education Law § 211-f by establishing criteria for the appointment of receivers to assist low performing schools. The proposed rule does not impose any additional professional services requirements beyond those inherent in the statute.
4. COMPLIANCE COSTS:
The proposed rule is necessary to implement Education Law § 211-f and, consequently, the major mandates of the proposed rule are statutorily imposed. The Department anticipates that because $75 million has been appropriated to support turnaround efforts in Persistently Struggling Schools during the 2015-16 and 2016-17 school years, there will be no costs to local governments for implementing school receivership in these schools during these years.
There are currently 17 schools districts that may potentially have one or more schools identified as Struggling or Persistently Struggling. Annual costs to implement school receivership will vary widely depending on a number of factors, including but not limited to: the size of school enrollment, the demographics of the school population and the grade configuration of the school; whether an independent receiver is assigned to a school and the district is required to convert the school to a community school; and the degree to which the school receiver chooses to use the receiver’s authority to take actions such as extending the school day or school year; expanding or modifying curriculum and program offerings; replacing teachers and administrators; increasing salaries of teachers and administrators; improving hiring, induction, teacher evaluation, professional development, teacher advancement, school culture and/or organizational structure; adding kindergarten or pre-kindergarten programs; and/or re-staffing the school. The Department estimates that on average it will cost a district approximately $50,000 per school to meet the requirements of the regulations regarding providing written annual notifications to parents of, or persons in parental relation to, students attending a struggling or a persistently struggling school; conducting at least one public meeting or hearing annually for purposes of discussing the performance of the designated school and the construct of receivership; establishing a community engagement team and implementing the provisions of the regulations regarding such teams; providing quarterly written reports to the board of education, the Commissioner and the Board of Regents; amending comprehensive school improvement plans or department approved intervention plans to meet the requirements of the regulations; and submitting information necessary to allow the Commissioner to determine whether a school is making demonstrable improvement. The Department estimates that in the event that a large high school (2,000 plus students) is placed in independent receivership, is implementing a community school program, and the independent receiver chooses to utilize all of the authority of the receiver as specified in subdivision 100.19(g), the annual costs of implementation of receivership could be in the range of $4 million to $5.5 million dollars.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed rule requires school districts to provide notice to the public regarding public meetings or hearings by posting the notice on a school district website, if one exists. In addition, the School Intervention Plan must be publicly available by the independent receiver in the school district’s offices and posted on the school district’s website, if one exists. Quarterly reports must be publicly available in the school district’s offices and posted on the school district’s website, if one exists.
Economic feasibility is addressed in the Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The rule is necessary to implement Education Law section 211-f by establishing criteria for the appointment of receivers to assist low performing schools. Consequently, the major provisions of the rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables, or to exempt school districts from coverage by the rule. Nevertheless, a substantial effort was made to involve school districts and other interested parties in the development of this rule, and their comments were considered in drafting the proposed rule.
The Department intends to take steps to provide sufficient notice of the proposed rule to ensure that school districts are made aware of the rule's requirements so they may suitably prepare for and implement this requirement. The Department will also take steps to share a variety of resources with school districts to provide guidance with the implementation process.
7. LOCAL GOVERNMENT PARTICIPATION:
With the approval of the Board of Regents at its May 18-19, 2015 meeting, Department staff solicited comments and recommendations from groups that included teams from school districts with one or more eligible priority schools; district superintendents; Statewide representatives of parents, teachers, principals, superintendents, and school boards; educational partnership organizations; representatives of State agencies that provide health, mental health, child welfare, and job services; representatives of organizations involved in and concerned with the education of English language learners, students with disabilities and students in temporary housing; and technical experts in school receivership, expanded learning, and community school models. A meeting of these key stakeholders was held on May 27, 2015, where more than 100 participants provided their feedback on draft express terms that were presented to the Board of Regents in May, and many of their suggestions were incorporated in the proposed rule presented for emergency adoption at the June 15-16, 2015 Regents meeting.
8. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement Education Law section 211-f, as added by Part EE, Subpart H of Ch. 56 of the Laws of 2015, by establishing criteria for the appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance. Consequently, the major, substantive provisions of the proposed rule are statutorily imposed and cannot be changed without further Legislative action.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item number 10 of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the date the Notice is published in the State Register.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to those school districts that have:
(1) “Persistently Failing Schools” (identified in the regulation as a “Persistently Struggling Schools”), which are Priority Schools that have been in the most severe accountability status since the 2006-07 school year, and/or
(2) Failing Schools (identified in the regulation as a “Struggling Schools”), which are schools that have been in Priority Schools status since the 2012-13 school year.
There is currently one school district that has one Struggling School located in a rural area (i.e. the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less).
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule is necessary to implement Education Law section 211-f by establishing criteria for the appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance. In April 2015, Subpart H of Part EE of Ch. 56 of the Laws of 2015 created a new Education Law § 211-f. The statute designates current Priority Schools that have been in the most severe accountability status since the 2006-07 school year as “Persistently Failing Schools” (identified in the proposed regulation as “Persistently Struggling Schools” and vests the superintendent of the district with the powers of an independent receiver. The superintendent is given an initial one-year period to use the enhanced authority of a receiver to make demonstrable improvement in student performance at the Persistently Struggling School or the Commissioner will direct that the school board appoint an independent receiver and submit the appointment for approval by the Commissioner. Independent receivers are appointed for up to three school years and serve under contract with the Commissioner. Additionally, the school will be eligible for a portion of $75 million in State aid to support and implement its turnaround efforts over a two-year period. Failing Schools (identified in the regulation as “Struggling Schools”), schools that have been Priority Schools since the 2012-13 school year, will be given two years under a “superintendent receiver” (i.e., the superintendent of schools of the school district vested with the powers of a receiver under § 211-f) to improve student performance. Should the school fail to make demonstrable improvement in two years then the district will be required to appoint an independent receiver and submit the appointment for approval by the Commissioner. Education Law § 211-f provides persons or entities vested with the powers of a receiver new authority to, among other things, develop a school intervention plan; convert schools to community schools providing wrap-around services; reallocate funds in the school’s budget; expand the school day or school year; establish professional development plans; order the conversion of the school to a charter school consistent with applicable state laws; remove staff and/or require staff to reapply for their jobs in collaboration with a staffing committee; and negotiate collective bargaining agreements, with any unresolved issues submitted to the Commissioner for decision.
At the end of the one- or two-year period in which a school designated as Persistently Struggling or as Struggling remains under district control, and annually thereafter, the Commissioner must determine whether the school should be removed from such designation; allowed to continue to be operated by the school district with the superintendent receiver; or be placed under an independent receiver who shall be appointed by the school board with the responsibility to manage and operate the school. Schools operating under an independent receiver must also be annually evaluated by the Commissioner to determine whether the school intervention plan should be continued or modified. At the end of the independent receivership period, the Commissioner must decide whether to end the receivership, continue it, or appoint a new receiver. Additionally, the Commissioner may order the closure of a Struggling or Persistently Struggling School and the Board of Regents may revoke the registration of the school.
Upon the Commissioner’s designation of a school as Struggling or Persistently Struggling, the board of education shall conduct at least one public meeting or hearing annually for purposes of discussing the performance of the designated school and receivership. The district shall provide translators and provide reasonable notice to the public of the meeting or hearing.
The superintendent receiver shall provide quarterly written reports regarding implementation of the department-approved intervention model or school comprehensive education plan, and such reports, together with a plain-language summary thereof, shall be publicly available.
No later than twenty days following designation, the school district shall establish a community engagement team, comprised of community stakeholders with direct ties to the school, to develop recommendations for improvement of the school and solicit input through public engagement.
The superintendent receiver shall develop a community engagement plan in such form and format and according to such timeline as may be prescribed by the Commissioner and shall submit such plan to the Commissioner for approval.
The school district shall continue to operate a school identified as Persistently Struggling for one additional school year and a school identified as Struggling for two additional school years, provided there is a Department-approved intervention model or comprehensive education plan in place that includes rigorous performance metrics and goals, as well as a community engagement plan. The superintendent shall be vested with the powers of an independent receiver, except that superintendent is not required to develop a school intervention plan or convert the school to a community school.
In the event the Department revokes the provisional approval or approval of an intervention model or comprehensive education plan, the Commissioner shall require the school district to appoint and submit for the Commissioner’s approval an independent receiver to manage and operate the school.
The district shall consult with the community engagement team in accordance with the approved community engagement plan, with respect to modifications to the district’s approved intervention model or comprehensive education plan.
Within 60 days of the Commissioner’s determination to place a school into receivership, the district shall appoint an independent receiver and submit the appointment to the Commissioner for approval. If the school district fails to appoint an independent receiver that meets the Commissioner’s approval, the Commissioner shall appoint the independent receiver.
The school district shall fully cooperate with the independent receiver and willful failure to cooperate with or interfere with the functions of such receiver shall constitute willful neglect of duty under Education Law section 306.
No later than 30 business days prior to the presentation of a school budget at the budget hearing, the school board shall provide the school receiver with a copy of the proposed district budget including any school-based budget, that shall include a specific delineation of all funds and resources the school receiver shall have available to manage and operate the school and the services and resources that the school district shall provide to the school. Upon receipt of the school receiver’s proposed budget modifications, the school board shall incorporate the modifications into the proposed budget and present it to the public or return the modifications for reconsideration for reasons specified in writing. The school receiver shall notify the school board in writing with a decision and that determination shall be incorporated into the budget. The school receiver and the school board shall provide the Commissioner with an electronic copy of all correspondence related to modification of the school budget.
Upon the Commissioner’s designation of a school as Struggling or Persistently Struggling, the board of education shall provide written notice of the designation to parents/persons in parental relation no later than 30 days following designation, and by June 30th of each school year the school remains so identified.
The school district shall provide written notice of the public meeting or hearing held annually for purposes of discussing the performance of the designated school and receivership.
Quarterly reports of the independent receiver shall be publicly available in the school district’s offices and posted on the school district’s website, if one exists.
No later than ten business days after a school board has acted upon an employment decision pertaining to staff assigned to a Struggling or Persistently Struggling School, or a school that the Commissioner has determined shall be placed into receivership, the school board shall provide the school receiver with a copy of the action taken, which shall not go into effect until it has been reviewed by the school receiver. Upon receipt of any proposed modifications to an employment decision, the school board shall adopt the modifications at the next regularly scheduled board meeting or return the modification within 10 days for reconsideration with the reasons specified in writing. The board shall approve modifications required by the receiver at its next regularly scheduled meeting. The receiver and school board shall provide the Commissioner with an electronic copy of all correspondence related to such employment decisions.
The school receiver shall provide the Commissioner with any reports or other information requested, in such form and format and according to such timeline as may be prescribed, in order for the Commissioner to conduct an evaluation of the receivership program.
The rule is necessary to implement Education Law § 211-f by establishing criteria for the appointment of receivers to assist low performing schools, and does not impose any additional professional service requirements upon schools in rural areas beyond those inherent in the statute.
3. COMPLIANCE COSTS:
The proposed rule is necessary to implement Education Law § 211-f and, consequently, the major mandates of the proposed rule are statutorily imposed. The Department anticipates that because $75 million has been appropriated to support turnaround efforts in Persistently Struggling Schools during the 2015-16 and 2016-17 school years, there will be no costs to local governments for implementing school receivership in these schools during these years.
There are currently 17 schools districts that may potentially have one or more schools identified as Struggling or Persistently Struggling. Annual costs to implement school receivership will vary widely depending on a number of factors, including but not limited to: the size of school enrollment, the demographics of the school population and the grade configuration of the school; whether an independent receiver is assigned to a school and the district is required to convert the school to a community school; and the degree to which the school receiver chooses to use the receiver’s authority to take actions such as extending the school day or school year; expanding or modifying curriculum and program offerings; replacing teachers and administrators; increasing salaries of teachers and administrators; improving hiring, induction, teacher evaluation, professional development, teacher advancement, school culture and/or organizational structure; adding kindergarten or pre-kindergarten programs; and/or re-staffing the school. The Department estimates that on average it will cost a district approximately $50,000 per school to meet the requirements of the regulations regarding providing written annual notifications to parents of, or persons in parental relation to, students attending a struggling or a persistently struggling school; conducting at least one public meeting or hearing annually for purposes of discussing the performance of the designated school and the construct of receivership; establishing a community engagement team and implementing the provisions of the regulations regarding such teams; providing quarterly written reports to the board of education, the Commissioner and the Board of Regents; amending comprehensive school improvement plans or department approved intervention plans to meet the requirements of the regulations; and submitting information necessary to allow the Commissioner to determine whether a school is making demonstrable improvement. The Department estimates that in the event that a large high school (2,000 plus students) is placed in independent receivership, is implementing a community school program, and the independent receiver chooses to utilize all of the authority of the receiver as specified in subdivision 100.19(g), the annual costs of implementation of receivership could be in the range of $4 million to $5.5 million dollars.
4. MINIMIZING ADVERSE IMPACT:
The rule is necessary to implement Education Law section 211-f by establishing criteria for the appointment of receivers to assist low performing schools. Consequently, the major provisions of the rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed rule. Nevertheless, a substantial effort was made to involve school districts and other interested parties in the development of this rule, and their comments were considered in drafting the proposed rule.
The Department has taken steps to minimize the possible adverse impact of the proposed rule by including stakeholders in the decision making process. The Department also intends to take steps to provide sufficient notice of the proposed rule to ensure that school districts are made aware of the rule's requirements so they may timely prepare for implementation. The Department will also take steps to share a variety of resources with school districts to provide guidance with implementation.
5. RURAL AREA PARTICIPATION:
With the approval of the Board of Regents at its May 18-19, 2015 meeting, Department staff solicited comments and recommendations from groups that included teams from school districts with one or more eligible priority schools; district superintendents; Statewide representatives of parents, teachers, principals, superintendents, and school boards; educational partnership organizations; representatives of State agencies that provide health, mental health, child welfare, and job services; representatives of organizations involved in and concerned with the education of English language learners, students with disabilities and students in temporary housing; and technical experts in school receivership, expanded learning, and community school models. A meeting of these key stakeholders was held on May 27, 2015, where more than 100 participants provided their feedback on draft express terms that were presented to the Board of Regents in May, and many of their suggestions were incorporated in the proposed rule presented for emergency adoption at the June 15-16, 2015 Regents meeting.
6. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act § 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five-year review period is that the proposed rule is necessary to ensure implementation of Education Law section 211-f, as added by Part EE, Subpart H of Ch. 56 of the Laws of 2015, by establishing criteria for the appointment of receivers to assist low-performing schools to make demonstrable improvement in student performance. Consequently, the major, substantive provisions of the proposed rule are statutorily imposed and cannot be changed without further Legislative action.
The Department invites public comment on the proposed five-year review period for this rule. Comments should be sent to the agency contact listed in item number 16 of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the date the State Register publishes the Notice.
Job Impact Statement
The proposed rule relates to public school and school district accountability and is necessary to implement and otherwise conform the Commissioner's Regulations to Education Law section 211-f, as added by Part EE, Subpart H of Ch. 56 of the Laws of 2015, by establishing criteria for the appointment of receivers to assist low performing schools to make demonstrable improvement in student performance. The statute designates current Priority Schools that have been in the most severe accountability status since the 2006-07 school year as “Persistently Failing Schools” (identified in the proposed regulation as “Persistently Struggling Schools”) and identifies schools that have been identified as Priority since the 2012-13 school year as “Failing Schools” (identified in the proposed regulation as “Struggling Schools”) and vests the superintendent of the district with the powers of an independent receiver.
The proposed rule applies to public schools that are Struggling or Persistently Struggling and placed into receivership and will not result in an adverse impact on jobs or employment opportunities. In accordance with Education Law section 211-f(7)(b) and (c), a school receiver may abolish the positions of all members of the teaching and administrative and supervisory staff assigned to the Struggling or Persistently Struggling School and terminate the employment of any principal assigned to such a school and require staff members to reapply for their positions in the school if they so choose. Although the school receiver may choose not to rehire a maximum of fifty percent of the former staff, it is anticipated that those staff members will be replaced by other individuals and will not cause a net loss in positions at the school.
Furthermore, an apportionment of $75 million in State funds will be available to Persistently Struggling Schools for the implementation of the Receivership process during the 2015-16 and 2016-17 school years. Since school districts are expected to use a portion of this allocation to implement strategies that may require hiring of new staff for these schools, this will result in a net gain of jobs. It is also possible that to meet the requirements of school receivership in Struggling Schools, which are not eligible for the $75 million grant, districts may choose to hire additional staff to implement the provisions of receivership.
