Specific reasons underlying the finding of necessity:
The proposed amendment is designed to: (1) address reports that districts are denying enrollment of unaccompanied minors and undocumented youths if they are unable to produce documents sufficiently demonstrating age, guardianship, and/or residency in a district; and (2) provide clear requirements for school districts regarding enrollment of students, particularly as it pertains to procedures for unaccompanied minors and other undocumented youths.
Many school districts across the State have experienced an influx of unaccompanied minors and other undocumented youths. It has been reported that some school districts are refusing to enroll unaccompanied minors and undocumented youths if they, or their families or guardians, are unable to produce documents sufficiently demonstrating guardianship and/or residency in a district. These enrollment policies, as well as highly restrictive requirements for proof of residency, may impede or prevent many unaccompanied minors and undocumented youths from enrolling or attempting to enroll in school districts throughout the State. The proposed amendment is necessary to ensure that all children are enrolled in school, regardless of immigration status, pursuant to New York State and Federal law and to ensure that all school districts understand and comply with their obligation to enroll all resident students regardless of their immigration status.
The proposed amendment was adopted as an emergency action at the December 15-16, 2014 Regents meeting, effective December 16, 2014. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on December 31, 2014. Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the March 16-17, 2015 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the March meeting, would be April 1, 2015, the date a Notice of Adoption would be published in the State Register. However, the December emergency rule will expire on March 15, 2015, 90 days from its filing with the Department of State on December 16, 2014. A lapse in the rule's effective date could disrupt enrollment of students, particularly unaccompanied minors and other undocumented youths, in potential violation of federal and State laws regarding access to a free public education system.
Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed rule adopted by emergency action at the December 2014 Regents meeting remains continuously in effect until the effective date of its permanent adoption.
It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the March 16-17, 2015 Regents meeting, which is the first meeting scheduled after expiration of the 45-day period for public comment pursuant to the State Administrative Procedure Act.
Subject:
Student enrollment.
Purpose:
Clarify requirements on student enrollment, particularly as to procedures for unaccompanied minors and other undocumented youth.
Text of emergency rule:
Subdivision (y) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective March 16, 2015, as follows:
(y) Determination of student residency and age. [The board of education or its designee shall determine whether a child is entitled to attend the schools of the district.]
(1) Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age in accordance with this subdivision. Such publicly available information shall include a non-exhaustive list of the forms of documentation that may be submitted to the district by parents, persons in parental relation or children, as appropriate, in accordance with the provisions of this subdivision. Such list shall include but not be limited to all examples of documentation listed in this subdivision. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and shall be provided to all parents, persons in parental relation or children, as appropriate, who request enrollment in the district, and shall be posted on the school district’s website, if one exists.
(2) When a child’s parent(s), the person(s) in parental relation to the child or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and shall begin attendance on the next school day, or as soon as practicable. Within three business days of such initial enrollment, the board of education or its designee must review all documentation submitted by the child’s parent(s), the person(s) in parental relation to the child or the child, as appropriate, and make a residency determination in accordance with the following:
(a) The district shall not request on any enrollment/registration form(s) or in any meeting or other form of communication any of the following documentation and/or information at the time of and/or as a condition of enrollment:
(1) Social Security card or number; or
(2) any information regarding or which would tend to reveal the immigration status of the child, the child’s parent(s) or the person(s) in parental relation, including but not limited to copies of or information concerning visas or other documentation indicating immigration status.
(b) The district may require that the parent(s) or person(s) in parental relation submit documentation and/or information establishing physical presence of the parent(s) or person(s) in parental relation and the child in the school district. Such documentation may include but shall not be restricted to: (1) a copy of a residential lease or proof of ownership of a house or condominium, such as a deed or mortgage statement; (2) a statement by a third-party landlord, owner or tenant from whom the parent(s) or person(s) in parental relation leases or with whom they share property within the district, which may be either sworn or unsworn; or (3) such other statement by a third party establishing the parent(s)’ or person(s) in parental relation’s physical presence in the district. If the documentation listed in this clause is not available, the district shall consider other forms of documentation and/or information establishing physical presence in the district, in lieu of those described in this clause, which may include but not be limited to those listed in clause (d) of this subparagraph.
(c) The district may also require the parent(s) or person(s) in parental relation to provide an affidavit either: (1) indicating that they are the parent(s) with whom the child lawfully resides; or (2) indicating that they are the person(s) in parental relation to the child, over whom they have total and permanent custody and control, and describing how they obtained total and permanent custody and control, whether through guardianship or otherwise. A district may also accept other proof, such as documentation indicating that the child resides with a sponsor with whom the child has been placed by a federal agency. A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
(d) The district shall consider other forms of documentation produced by the child, the child’s parent(s) or person(s) in parental relation, including but not limited to the following:
(1) pay stub;
(2) income tax form;
(3) utility or other bills;
(4) membership documents (e.g., library cards) based upon residency;
(5) voter registration document(s);
(6) official driver’s license, learner’s permit or non-driver identification;
(7) state or other government issued identification;
(8) documents issued by federal, state or local agencies (e.g., local social service agency, federal Office of Refugee Resettlement); or
(9) evidence of custody of the child, including but not limited to judicial custody orders or guardianship papers.
(ii) Documentation of Age. In accordance with Education Law § 3218:
(a) where a certified transcript of a birth certificate or record of baptism (including a certified transcript of a foreign birth certificate or record of baptism) giving the date of birth is available, no other form of evidence may be used to determine a child’s age;
(b) where the documentation listed in clause (a) of this subparagraph is not available, a passport (including a foreign passport) may be used to determine a child’s age; and
(c) where the documentation listed in both clauses (a) and (b) of this subparagraph are not available, the school district may consider certain other documentary or recorded evidence in existence two years or more, except an affidavit of age, to determine a child’s age. Such other evidence may include but not be limited to the following:
(1) official driver’s license;
(2) state or other government issued identification;
(3) school photo identification with date of birth;
(4) consulate identification card;
(5) hospital or health records;
(6) military dependent identification card;
(7) documents issued by federal, state or local agencies (e.g., local social service agency, federal Office of Refugee Resettlement);
(8) court orders or other court-issued documents;
(9) Native American tribal document; or
(10) records from non-profit international aid agencies and voluntary agencies.
(d) With respect to the documentation listed in clause (c) of this subparagraph, if the documentary evidence presented originates from a foreign country, a school district may request verification of such documentary evidence from the appropriate foreign government or agency, consistent with the requirements of the federal Family Educational Rights and Privacy Act (20 USC § 1232g), provided that the student must be enrolled within in accordance with paragraph (2) of this subdivision and such enrollment cannot be delayed beyond the period specified in paragraph (2) of this subdivision while the district attempts to obtain such verification.
(iii) School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school. Nothing in this subdivision shall be construed to require the immediate attendance of an enrolled student lawfully excluded from school temporarily pursuant to Education Law § 906 because of a communicable or infectious disease that imposes a significant risk of infection of others, or an enrolled student whose parent(s) or person(s) in parental relation have not submitted proof of immunization within the periods prescribed in Public Health Law § 2164(7)(a), or an enrolled student who is suspended from instruction for disciplinary reasons pursuant to Education Law § 3214. Nothing in this subdivision shall be construed to interfere with the recordkeeping and reporting requirements imposed on school districts participating in the federal Student and Exchange Visitor Program (SEVP) in grades 9-12 pursuant to applicable federal laws and regulations concerning nonimmigrant alien students who identify themselves as having or seeking nonimmigrant student visa status (F-1 or M-1), and nothing herein shall be construed to conflict with such requirements or to relieve such nonimmigrant alien students who have or seek an F-1 or M-1 visa from fulfilling their obligations under federal law and regulations related to enrolling in grades 9-12 in SEVP schools.
(3) Within three business days of a child’s initial enrollment, the board of education or its designee shall determine whether a child is entitled to attend the schools of the district. For purposes of this paragraph, prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent, the person in parental relation to the child or the child, as appropriate, an opportunity to submit information concerning the child’s right to attend school in the district, which shall be the information submitted by the parent(s) or person(s) in parental relation pursuant to paragraph (2) of this subdivision.
(4) At any time during the school year, the board of education or its designee may determine, in accordance with paragraph (6) of this subdivision, that a child is not a district resident entitled to attend the schools of the district.
(5) Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with subdivision (x) of this section.
(6) Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district. Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district except as otherwise provided in paragraph (3) of this subdivision. When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is [neither] not a resident of such district [nor entitled to attend its schools pursuant to subdivision (x) of this section], such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate. Such written notice shall state:
[(1)] (i) that the child is not entitled to attend the public schools of the district;
[(2)] (ii) the specific basis for the determination that the child is [neither] not a resident of the school district [nor entitled to attend its schools pursuant to subdivision (x) of this section], including but not limited to a description of the documentary or other evidence upon which such determination is based;
[(3)] (iii) the date as of which the child will be excluded from the schools of the district; and
[(4)] (iv) that the determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law, section 310, within 30 days of the date of the determination, and that the instructions, forms and procedures for taking such an appeal, including translated versions of such instructions, forms and procedures, may be obtained from the Office of Counsel at www.counsel.nysed.gov, or by mail addressed to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234 or by calling the Appeals Coordinator at (518) 474-8927.
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-52-14-00014-EP, Issue of December 31, 2014. The emergency rule will expire May 14, 2015.
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
STATUTORY AUTHORITY:
Education Law section 207 empowers the Regents and Commissioner to adopt rules and regulations to carry out the State laws regarding education and the functions and duties conferred on the State Education Department (SED).
Education Law section 305(1) and (2) provide the Commissioner, as chief executive officer of the State education system, with general supervision over schools and institutions subject to the provisions of education law, and responsibility for executing Regents policies. Section 305(20) authorizes the Commissioner with such powers and duties as are charged by the Regents.
Education Law section 3202(1) specifies the school district in which children over five and under twenty-one years of age, who have not yet received a high school diploma and who are residing in New York State, are entitled to attend school without the payment of tuition, and is intended to assure that each child residing within the State is able to attend school on a tuition-free basis.
Education Law section 3205(1) requires each child of compulsory school age to attend upon full time day instruction.
Education Law section 3713(1) and (2) authorizes the State and school districts to accept Federal law making appropriations for educational purposes and authorizes the Commissioner to cooperate with Federal agencies to implement such law.
LEGISLATIVE OBJECTIVES:
Consistent with the above statutory authority, the proposed amendment will codify applicable federal and State laws, as well as existing State Education Department (SED) guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education.
NEEDS AND BENEFITS:
Many school districts across the State have experienced an influx of unaccompanied minors and other undocumented youths. It has been reported that some school districts are refusing to enroll unaccompanied minors and undocumented youths if they, or their families or guardians, are unable to produce documents sufficiently demonstrating guardianship and/or residency in a district. These enrollment policies, as well as highly restrictive requirements for proof of residency, have impeded or prevented many unaccompanied minors and undocumented youths from enrolling in school districts throughout the State.
Under federal and State law, all children have a right to a free public education, regardless of immigration status. The New York Education Law entitles each person over five and under twenty-one years of age, who has not received a high school diploma, to attend a public school in the district in which such person resides. Furthermore, school districts must ensure that all resident students of compulsory school age attend upon full-time instruction [see Educ. Law §§ 3202(1), 3205]. Under federal law, school districts may not deny resident students a free public education on the basis of their immigration status. The United States Supreme Court has held that allowing undocumented students to be denied an education would, in effect, “deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyler v. Doe, 457 U.S. 202, 223 (1982). Under established law, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to such student's entitlement to an elementary and secondary public education (See, e.g., 42 U.S.C. §§ 2000c-6, 2000-d; 28 C.F.R. § 42.104(b)(2); 34 C.F.R. § 100.3(b)(2) (Titles IV and VI of the Civil Rights Act of 1964 and associated federal regulations, prohibiting discrimination on the basis of, inter alia, race, color, or national origin by public elementary and secondary schools). Moreover, unaccompanied minors and undocumented youth may also be entitled to the protections of the federal McKinney-Vento Homeless Education Assistance Improvements Act, 42 U.S.C. § 11431, et seq., and implementing State law and regulations concerning the education of homeless children. Together, these federal and State laws are driven by the dual purposes of ensuring student access to, and continuity within, a free public education system.
In late October 2014, the New York Civil Liberties Union released a study (See http://www.nyclu.org/news/nyclu-survey-ny-school-districts-illegally-denying-education-immigrant-children) indicating that as many as 20% of school districts in New York State may maintain facially impermissible enrollment policies, and noting the following findings:
• 73 school districts require birth certificates for enrollment, 19 of which specify they require a student’s “original” birth certificate;
• 16 school districts require a student’s immigration status for enrollment;
• 10 school districts require Social Security cards for enrollment;
• 6 districts ask students whether they are a “migrant worker” at enrollment; and
• 9 school districts ask students whether or not they are U.S. citizens in enrollment.
In addition, SED and the New York State Attorney General have received inquiries from districts across the State regarding their obligations under federal and State law. These inquiries make clear the need for more comprehensive action to address the lack of clarity among districts regarding lawful enrollment and registration policies.
The proposed amendment will codify applicable federal and State laws, as well as existing SED guidance to districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. Specifically, the proposed amendment will establish:
(1) Clear and uniform requirements, which comply with federal and State laws and SED guidance on enrollment of students, particularly for unaccompanied minors and undocumented youths;
(2) Prohibited enrollment application policies which are unlawful and/or have had a disparate impact on unaccompanied minors and undocumented youths;
(3) Flexible enrollment requirements, which allow districts to accept additional forms of proof beyond the highly restrictive forms listed in the enrollment instructions/materials of school districts under review to date; and
(4) Ensure there is clear guidance to parents and guardians, and that enrollment instructions are provided publicly, in both paper and electronic forms.
COSTS:
Costs to State: none.
Costs to local governments: none.
Costs to private regulated parties: none.
Costs to the regulating agency for implementation and continued administration of the rule: none.
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. In general, the proposed amendment will not impose any additional costs beyond those inherent in such applicable laws. There may be costs associated with making publicly available a district’s enrollment forms, procedures, instructions and requirements for determinations of student residency and age. However, any such costs are believed to be minimal and capable of being absorbed using existing district staff and resources.
LOCAL GOVERNMENT MANDATES:
Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of the forms of documentation that may be submitted to the district, as specified in the regulation. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and be provided to all parents/persons in parental relation or children, as appropriate, who request enrollment in the district, and be posted on the district’s website, if one exists.
When a child’s parent(s)/person(s) in parental relation or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and begin attendance on the next school day, or as soon as practicable. Within three business days of initial enrollment, the board of education or its designee must review all documentation submitted by the child’s parent(s), the person(s) in parental relation to the child or the child, as appropriate, and make a residency determination in accordance with the regulation. Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent/person in parental relation or the child, as appropriate, an opportunity to submit information concerning the child’s right to attend school in the district, as specified in the regulation. At any time during the school year, the board of education or its designee may determine, in accordance with the regulation, that a child is not a district resident entitled to attend the schools of the district. Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with section 100.2(x) of the Commissioner’s Regulations.
School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school.
PAPERWORK:
The regulation provides that the district may require parents/persons in parental relation or the child, as appropriate, to submit documentation/information establishing physical presence in the school district, as specified in the regulation. If the documentation is not available, the district shall consider other forms of documentation/information establishing physical presence in the district, as specified in the regulation. The district may also require the parent(s)/person(s) in parental relation to provide an affidavit either: (1) indicating that they are the parent(s) with whom the child lawfully resides; or (2) indicating that they are the person(s) in parental relation to the child, over whom they have total and permanent custody and control, and describing how they obtained total and permanent custody and control, whether through guardianship or otherwise. A district may also accept other proof, such as documentation indicating that the child resides with a sponsor with whom the child has been placed by a federal agency. A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
DUPLICATION:
The proposed amendment does not duplicate existing State or federal requirements, but merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education.
ALTERNATIVES:
The proposed amendment is necessary to codify applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. There are no significant alternatives to the proposed amendment and none were considered.
FEDERAL STANDARDS:
The proposed amendment is necessary to codify applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements beyond those inherent in such applicable laws.
COMPLIANCE REQUIREMENTS:
It is anticipated regulated parties will be able to achieve compliance with the rule by its effective date. The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements or costs beyond those inherent in such applicable laws.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to student enrollment, and will codify applicable federal and State laws, as well as existing State Education Department guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on small businesses. No further steps 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 Governments:
1. EFFECT OF RULE:
The proposed amendment applies to each school district in the State. There are presently 689 school districts in the State.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements beyond those inherent in such applicable laws.
Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of the forms of documentation that may be submitted to the district, as specified in the regulation. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and be provided to all parents/persons in parental relation or children, as appropriate, who request enrollment in the district, and be posted on the district’s website, if one exists.
When a child’s parent(s)/person(s) in parental relation or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and begin attendance on the next school day, or as soon as practicable. Within three business days of initial enrollment, the board of education or its designee must review all documentation submitted by the child’s parent(s), the person(s) in parental relation to the child or the child, as appropriate, and make a residency determination in accordance with the regulation. Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent/person in parental relation or the child, as appropriate, an opportunity to submit information concerning the child’s right to attend school in the district, as specified in the regulation. At any time during the school year, the board of education or its designee may determine, in accordance with the regulation, that a child is not a district resident entitled to attend the schools of the district. Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with section 100.2(x) of the Commissioner’s Regulations.
School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school.
The regulation provides that the district may require parents/persons in parental relation or the child, as appropriate, to submit documentation/information establishing physical presence in the school district, as specified in the regulation. If the documentation is not available, the district shall consider other forms of documentation/information establishing physical presence in the district, as specified in the regulation. The district may also require the parent(s)/person(s) in parental relation to provide an affidavit either: (1) indicating that they are the parent(s) with whom the child lawfully resides; or (2) indicating that they are the person(s) in parental relation to the child, over whom they have total and permanent custody and control, and describing how they obtained total and permanent custody and control, whether through guardianship or otherwise. A district may also accept other proof, such as documentation indicating that the child resides with a sponsor with whom the child has been placed by a federal agency. A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
3. PROFESSIONAL SERVICES:
The proposed rule does not impose any additional professional service requirements on local governments.
4. COMPLIANCE COSTS:
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. In general, the proposed amendment will not impose any additional costs on local governments beyond those inherent in such applicable laws. There may be costs associated with making publicly available a district’s enrollment forms, procedures, instructions and requirements for determinations of student residency and age. However, any such costs are believed to be minimal and capable of being absorbed using existing district staff and resources.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILTY:
The proposed amendment does not impose any additional technological requirements. Economic feasibility is addressed above under compliance costs.
6. MINIMIZE ADVERSE IMPACT:
The proposed amendment is necessary to codify applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements on local governments beyond those inherent in such applicable laws.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts.
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 codify applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. Changes to such federal and State laws would be necessary before the proposed rule may be revised. Accordingly, there is no need for a shorter review period.
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 16. of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements beyond those inherent in such applicable laws.
Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of the forms of documentation that may be submitted to the district, as specified in the regulation. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and be provided to all parents/persons in parental relation or children, as appropriate, who request enrollment in the district, and be posted on the district’s website, if one exists.
When a child’s parent(s)/person(s) in parental relation or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and begin attendance on the next school day, or as soon as practicable. Within three business days of initial enrollment, the board of education or its designee must review all documentation submitted by the child’s parent(s), the person(s) in parental relation to the child or the child, as appropriate, and make a residency determination in accordance with the regulation. Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent/person in parental relation or the child, as appropriate, an opportunity to submit information concerning the child’s right to attend school in the district, as specified in the regulation. At any time during the school year, the board of education or its designee may determine, in accordance with the regulation, that a child is not a district resident entitled to attend the schools of the district. Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with section 100.2(x) of the Commissioner’s Regulations.
School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school.
The regulation provides that the district may require parents/persons in parental relation or the child, as appropriate, to submit documentation/information establishing physical presence in the school district, as specified in the regulation. If the documentation is not available, the district shall consider other forms of documentation/information establishing physical presence in the district, as specified in the regulation. The district may also require the parent(s)/person(s) in parental relation to provide an affidavit either: (1) indicating that they are the parent(s) with whom the child lawfully resides; or (2) indicating that they are the person(s) in parental relation to the child, over whom they have total and permanent custody and control, and describing how they obtained total and permanent custody and control, whether through guardianship or otherwise. A district may also accept other proof, such as documentation indicating that the child resides with a sponsor with whom the child has been placed by a federal agency. A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
The rule does not impose any additional professional service requirements on rural areas.
3. COMPLIANCE COSTS:
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. In general, the proposed amendment will not impose any additional costs on rural areas beyond those inherent in such applicable laws. There may be costs associated with making publicly available a district’s enrollment forms, procedures, instructions and requirements for determinations of student residency and age. However, any such costs are believed to be minimal and capable of being absorbed using existing district staff and resources.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to codify applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements on rural areas beyond those inherent in such applicable laws. The proposed rule has been carefully drafted to ensure that such State and federal requirements are met. Since these requirements apply to all school districts in the State, it is not possible to adopt different standards for those located in rural areas.
5. RURAL AREA PARTICIPATION:
The proposed rule was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.
6. 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 codify applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. Changes to such federal and State laws would be necessary before the proposed rule may be revised. Accordingly, there is no need for a shorter review period.
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 16. of the Notice of Emergency Adoption and Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Job Impact Statement
The proposed amendment relates to student enrollment, and will codify applicable federal and State laws, as well as existing State Education Department guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment 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.
