EDU-08-14-00023-ERP Annual Professional Performance Reviews (APPR)
5/14/14 N.Y. St. Reg. EDU-08-14-00023-ERP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 19
May 14, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-08-14-00023-ERP
Filing No. 342
Filing Date. Apr. 29, 2014
Effective Date. May. 10, 2014
Annual Professional Performance Reviews (APPR)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Amendment of section 8.4 and Subpart 30-2 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1), (2) and 3012-c; and L. 2014, ch. 56, part AA, subparts A, E and G
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 30-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5) for revised rule makings, is the September 2014 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the September 2014 meeting, would be October 1, 2014, the date a Notice of Adoption would be published in the State Register. However, emergency action to adopt the proposed rule is necessary now for the preservation of the general welfare in order to timely implement the provisions of Chapter 56 of the Laws of 2014 and to ensure that the emergency rule adopted at the March Regents meeting remains continuously in effect until it can be adopted as a permanent rule.
It is anticipated that the emergency rule will be presented to the Board of Regents for adoption as a permanent rule at the September 2014 Regents meeting, which is the first scheduled meeting after expiration of the 30-day public comment period mandated by the State Administrative Procedure Act for revised rulemakings.
Subject:
Annual Professional Performance Reviews (APPR).
Purpose:
To implement Chapter 56 of the Laws of 2014 relating to traditional standardized assessments and Annual Professional Performance Review plans, the expedited review process for material changes to eliminate unnecessary tests, and establishing caps on testing time for State tests (1%) and other standardized tests (1%), and for test preparation time under standardized conditions (2%) based on the minimum required annual instructional hours for such grade.
Text of emergency/revised rule:
1. That the emergency rule amending Subpart 30-2 of the Rules of the Board of Regents that was adopted by the Board of Regents as an emergency measure at the March 10-11 meeting is repealed, effective May 10, 2014.
2. Subdivision (b) of section 30-2.2 of the Rules of the Board of Regents shall be amended, effective May 10, 2014, to read as follows:
(b) Approved student assessment shall mean a standardized student assessment approved by the commissioner for inclusion in the State Education Department’s lists of approved standardized student assessments for the locally selected measures subcomponent and/or to measure student growth in non-tested subjects for the State assessment or other comparable measures subcomponent or for grades kindergarten through two, an assessment that is not a traditional standardized assessment that meets the requirements in paragraph (1) of this subdivision.
(1) Approved Assessments in grades kindergarten through two.
(i) Effective March 2, 2014, all standardized assessments for students in kindergarten through grade two shall be removed from the actual list of approved student assessments for use in annual professional performance review plans for the 2014-2015 school year and thereafter and traditional standardized assessments in grades kindergarten through grade two will no longer be approved assessments for these grades. However, an assessment that is not a traditional standardized assessment shall be considered an approved student assessment if the superintendent, district superintendent, or chancellor of a school district/BOCES that chooses to use such assessment certifies in its APPR plan that the assessment is a not a traditional standardized assessment [, as defined by the Commissioner in guidance,] and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance.
(ii) Any school district or BOCES with an annual professional performance review plan approved or determined by the Commissioner [for use in the 2013-2014 school year] prior to April 1, 2014 that provides for the use of an approved student assessment for students in kindergarten through grade two remains in effect in accordance with Education Law § 3012-c (2)(l) and the district or BOCES may continue to use such assessments until a material change is made and approved by the Commissioner to eliminate such use.
3. Subdivision (v) of section 30-2.2 of the Rules of the Board of Regents shall be renumbered to subdivision (w) of section 30-2.2 of the Rules of the Board of Regents, effective May 10, 2014.
4. A new subdivision (v) is added to section 30-2.2 of the Rules of the Board of Regents, effective May 10, 2014, to read as follows:
(v) Traditional standardized assessment shall mean a systematic method of gathering information from objectively scored items that allow the test taker to select one or more of the given options or choices as their response. Examples include multiple-choice, true-false, and matching items. Traditional standardized assessments are those that require the student (and not the examiner/assessor) to directly use a "bubble" answer sheet. Traditional standardized assessments do not include performance assessments or assessments in which students perform real-world tasks that demonstrate application of knowledge and skills; assessments that are otherwise required to be administered by federal law; and/or assessments used for diagnostic or formative purposes, including but not limited to assessments used for diagnostic screening required by Education Law § 3208(5).
5. Paragraph (2) of subdivision (a) of section 30-2.3 of the Rules of the Board of Regents shall be amended, effective May 10, 2014, to read as follows:
(2)(i) By July 1, 2012, the governing body of each school district and BOCES shall adopt a plan, on a form prescribed by the Commissioner, for the annual professional performance review of all of its classroom teachers and building principals in accordance with the requirements of Education Law § 3012-c and this Subpart, and shall submit such plan to the Commissioner for approval. The plan may be an annual or multi-year plan, for the annual professional performance review of all of its classroom teachers and building principals. The Commissioner shall approve or reject the plan by September 1, 2012, or as soon as practicable thereafter. The Commissioner may also reject a plan that does not rigorously adhere to the provisions of Education Law § 3012-c and the requirements of this Subpart. Should any plan be rejected, the Commissioner shall describe each deficiency in the submitted plan and direct that each such deficiency be resolved through collective bargaining to the extent required under article fourteen of the Civil Service Law. If any material changes are made to the plan, the school district or BOCES must submit the material changes, on a form prescribed by the Commissioner, to the Commissioner for approval.
(ii) If material changes are made to a plan that solely relate to the elimination of unnecessary assessments on students, the Commissioner shall expedite his or her review of such material changes and solely review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012—c and this Subpart, provided that the superintendent, district superintendent or chancellor shall provide a written explanation of the changes made to the plan, on a form prescribed by the Commissioner, and certify that no other material changes have been made to the plan. The Commissioner shall complete the review of material changes properly and completely submitted within 10 business days of submission. In order to be considered properly and completely submitted, the submission must use the form prescribed by the Commissioner and meet the requirements of Education Law § 3012-c and this Subpart, and contain all required information including all appropriate signatures with appropriate dates.
(iii) To the extent that by July 1, 2012 or by July 1 of any subsequent year, if all of the terms of the plan have not been finalized as a result of unresolved collective bargaining negotiations, the entire plan shall be submitted to the Commissioner upon resolution of all of its terms, consistent with Article 14 of the Civil Service Law.
6. A new paragraph (4) shall be added to subdivision (a) of section 30-2.3 of the Rules of the Board of Regents, effective May 10, 2014, to read as follows:
(4) Any plan submitted to the Commissioner on or after March 2, 2014 for use in the 2014-2015 school year and thereafter shall include a signed certification, on a form prescribed by the Commissioner, by the superintendent, district superintendent or chancellor, attesting that [no more than one percent of total instructional time in each classroom or program of the district or BOCES is spent taking any locally determined traditional standardized third-party assessments from the approved list or traditional standardized district, regional or BOCES developed assessments for purposes of Education Law § 3012-c. This paragraph shall not apply to assessments used for formative or diagnostic purposes];
(i) the amount of time devoted to traditional standardized assessments that are not specifically required by state or federal law for each classroom or program of the grade does not exceed, in the aggregate, one percent of the minimum in required annual instructional hours for such classroom or program of the grade; and
(ii) the amount of time devoted to test preparation under standardized testing conditions for each grade does not exceed, in the aggregate, two percent of the minimum required annual instructional hours for such grade.
Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits established by this subdivision. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with a disability or federal law relating to English language learners or the individualized education program of a student with a disability.
7. Section 8.4 of the Rules of the Board of Regents is amended, effective May, 10, 2014, to read as follows:
§ 8.4 Courses and examinations in public schools.
(a) The commissioner shall establish regulations governing the following:
[(a)] (1) approved courses of study in public schools;
[(b)] (2) subjects in which Regents examinations are given in such schools;
[(c)] (3) the method of rating answer papers;
[(d)] (4) the credits to be allowed for subjects in which Regents examinations are not regularly offered.
(b) The amount of time devoted to required State assessments administered by or on behalf of the State and developed by the State directly or by contract for each grade shall not exceed, in the aggregate, one percent of the minimum required annual instructional hours for such grade. Nothing in this subdivision shall be construed to supersede the requirements of a section of the 504 plan of a qualified student with disability or federal law relating to English Language Learners or the individualized education program of a students with disabilities.
8. Subparagraph (iii) of paragraph (1) of subdivision (b) of section 30-2.5 of the Rules of the Board of Regents shall be amended, effective May 10, 2014, to read as follows:
(iii) Except as otherwise provided in subparagraphs (i) and (ii) of this paragraph, for classroom teachers who teach one of the core subjects, as defined in this subparagraph, where there is no approved growth or value-growth model at that grade level or in that subject, the school district or BOCES shall measure student growth based on a State-determined district-or BOCES-wide student growth goal setting process using a State assessment if one exists, or a Regents examination or department-approved alternative examination as described in section 100.2(f) of this Title (including, but not limited to, advanced placement examinations, International Baccalaureate examinations, SAT II, etc.). If there is no State assessment or Regents examination for these grades/subjects, the district or BOCES must measure student growth based on the State determined goal-setting process with an approved student assessment, or a department-approved alternative examination as described in section 100.2(f) of this Title or a district, regional or BOCES developed assessment that is rigorous and comparable across classrooms. For purposes of this subparagraph, core subjects shall be defined as science [and social studies in grades six to] grade eight and high school courses in English language arts, mathematics, science and social studies that lead to a Regents examination in the 2010-2011 school year, or a State assessment in the 2012-2013 school year or thereafter. A school district or BOCES shall generate a score from 0 to 20 points for this subcomponent.
9. A new subdivision (e) shall be added to section 30-2.5 of the Rules of the Board of Regents shall be amended, effective May 10, 2014, to read as follows:
(e) Notwithstanding any other provision of this Subpart to the contrary, no annual professional performance review plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third-party or other comparable entity; except that nothing in this subdivision shall preclude the use of school- or-BOCES-wide, group or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner. However, this subdivision shall not apply to any annual professional performance review plan approved or determined by the Commissioner for use in the 2013-2014 school year which remains in effect in the 2014-2015 school year and thereafter in accordance with Education Law § 3012-c(2)(l).
10. Subdivision (a) of section 30-2.8 of the Rules of the Board of Regents shall be amended, effective May 10, 2014, to read as follows:
(a) Approval of student assessments for the evaluation of classroom teachers and building principals. [An] Except as otherwise provided in subdivision (e) of this section for assessments in grades kindergarten through two, an assessment provider who seeks to place an assessment on the list of approved student assessments under this section shall submit to the Commissioner a written application in a form and within the time prescribed by the Commissioner.
11. Subdivision (e) of section 30-2.8 of the Rules of the Board of Regents shall be amended, effective May 10, 2014, to read as follows:
(e) Pursuant to section 30-2.2 of this Subpart, effective March 2, 2014, the Commissioner will remove the names of any traditional standardized assessments approved for use in kindergarten through grade two from the list of approved assessments for use in the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its plan that the assessment is a not a traditional standardized assessment [, as defined by the Commissioner in guidance,] and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance.
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on February 26, 2014, I.D. No. EDU-08-14-00023-EP. The emergency rule will expire June 27, 2014.
Revised rule making(s) were previously published in the State Register on
March 26, 2014.
Emergency rule compared with proposed rule:
Substantial revisions were made in sections 8.4, 30-2.2(b)(1), (v), (w), 30-2.3(a)(2) and (4).
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@mail.nysed.gov
Data, views or arguments may be submitted to:
Peg Rivers, State Education Department, Office of Higher Education, Room 979, Washington Avenue, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@mail.nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on March 26, 2014, the following substantial revisions were made to the proposed rule:
Regents Rule section 30-2.2(b)(1)(i) and (ii) are amended to clarify that traditional standardized assessments will be defined in regulation and not in guidance and to further clarify that any school district or BOCES with an APPR plan approved or determined by the Commissioner prior to April 1, 2014 shall remain in effect and the district may continue to use such assessment until a material change is made and approved to eliminate such use in order to conform to Ch.56, L.2013.
Section 30-2.2(v) is renumbered to (w) and a new (v) is added to define traditional standardized assessment.
Section 30-2.3(a)(2) is revised to clarify that if material changes are made to a plan that solely relate to the elimination of unnecessary assessments on students, the Commissioner shall expedite his/her review of such material changes and solely review those sections of the plan relating to the eliminated assessments to ensure compliance with Education Law 3012-c and the regulations, provided that the superintendent, district superintendent or chancellor shall provide a written explanation of the changes made to the plan, on a form prescribed by the Commissioner, and certify that no other material changes have been made to the plan. This paragraph conforms to Ch.56, L.2013, which requires the Commissioner complete the review of material changes properly and completely submitted within 10 business days of submission. The amendment provides that in order to be considered properly and completely submitted, the submission must use the form prescribed by the Commissioner and meet the requirements of Education Law 3012-c and the regulations and contain all required information including all appropriate signatures with appropriate dates.
Section 30-2.3(a)(4) was revised to conform to Ch.56, L.2013 to provide that any plan submitted for the 2014-2015 school year and thereafter must include a signed certification, attesting that the amount of time devoted to traditional standardized assessments that are not specifically required by state or federal law for each classroom or program of the grade does not exceed, in the aggregate, one percent of the minimum in required annual instructional hours for such classroom or program of the grade and the amount of time devoted to test preparation under standardized testing conditions for each grade does not exceed, in the aggregate, two percent of the minimum required annual instructional hours for such grade. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a § 504 plan of a qualified student with disability or federal law relating to English language learners (ELL) or the individualized education program (IEP) of a student with disability.
Section was amended to conform to Ch.56, L.2013 to provide that any plan submitted for the 2014-2015 school year and thereafter must include a signed certification, attesting that the amount of time devoted to required State assessments administered by or on behalf of the State for each grade does not exceed, in the aggregate, one percent of the minimum in required annual instructional hours for such grade; provided nothing shall be construed to supersede the requirements of a § 504 plan of a qualified student with disability or federal law relating to ELL or the IEP of a student with disability.
The above revisions require revisions to the Statutory Authority, Legislative Objectives, Needs and Benefits and Paperwork sections of the previously published Regulatory Impact Statement.
1. STATUTORY AUTHORITY:
Education Law 101 charges the Department with the general management and supervision of the educational work of the State and establishes the Regents as head of the Department.
Education Law 207 grants general rule-making authority to the Regents to carry into effect State educational laws and policies.
Education Law 215 authorizes the Commissioner to require reports from schools under State educational supervision.
Education Law 305(1) authorizes the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies. Section 305(2) provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools.
Education Law 3012-c establishes requirements for the conduct of annual professional performance reviews (APPR) of classroom teachers and building principals employed by school districts and boards of cooperative educational services (BOCES).
Subparts A, E and G of Part AA of Chapter 56 of the Laws of 2014 prohibit traditional standardized testing in grades Pre-K through 2; provide for an expedited review process by the Commissioner of material changes to APPR plans to remove unnecessary tests if the material changes are properly and completely submitted to the Commissioner; and prohibit more than one percent of the minimum required instructional time in a grade to be spent on State assessments, no more than one percent on traditional standardized assessments and no more than two percent of such time spent on test preparation.
2. LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above authority vested in the Regents and Commissioner to carry into effect State educational laws and policies and Ch.56, L.2014, and is necessary to support the commitment made by the Regents and Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in kindergarten through second grade are not subject to traditional standardized testing.
3. NEEDS AND BENEFITS:
The proposed rule makes a series of amendments to Subpart 30-2 of the Regents Rules, to conform to Ch.56, L.2014 and to support the commitment made by the Regents and Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in kindergarten through second grade are not subject to traditional standardized testing.
First, the rule provides that no APPR plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third party or other comparable entity. The rule does not preclude the use of school- or BOCES-wide, group, or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES-developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner.
The rule further provides that effective March 2, 2014, the Department will remove all third-party assessments approved for use in kindergarten through grade two from the list of approved student assessments for use in APPR plans for the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined in the regulations, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance. The rule also ensures that any APPR plan that has been approved by the Commissioner for use prior to April 1, 2014 shall remain in effect in accordance with Education Law § 3012-c(2)(l) and those districts and BOCES will be able to continue to use those assessments until a material change is made to their APPR plan to eliminate the use of such assessments.
The rule further provides that if any district or BOCES wishes to make material changes to a plan that solely relate to the elimination of unnecessary assessments that are used on students for APPR purposes, the Department shall expedite the review of such changes and will only review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and Subpart 30-2. To conform to Chapter 56 of the Laws of 2014, the proposed amendment requires that the Commissioner complete his review of such materials within ten business days of submission of properly and completely submitted material changes. The amendment clarifies that to be considered properly and completely submitted, the submission must use the form prescribed by the Commissioner and meet the requirements of Education Law 3012-c and this Subpart, and contain all required information including all appropriate signatures with appropriate dates.
The rule also requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of the minimum required instructional hours of the grade is devoted to traditional standardized assessments and that no more than two percent of the minimum required instructional hours for such grade are spent devoted to test preparation. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to ELL or the IEP of a student with disability.
It further requires that any plan submitted for the 2014-2015 school year and thereafter must include a signed certification, attesting that the amount of time devoted to required State assessments administered by or on behalf of the State for each grade does not exceed, in the aggregate, one percent of the minimum in required annual instructional hours for such grade. Nothing in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to ELL or the IEP of a student with disability.
The rule also re-defines core subject areas for the State growth or other comparable measures subcomponent to remove sixth through eighth grade social studies and sixth through seventh science from the definition. This revision will help to provide additional, no-cost options to districts and BOCES who may wish to utilize a school-wide, group, or team measure based on one or more State or Regents assessments in sixth through eight social studies and/or sixth through seventh science.
6. PAPERWORK:
The rule requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of the minimum required instructional hours for such classroom or program of the grade is devoted to traditional standardized assessments and that no more than two percent of the minimum required instructional hours for such grade are spent devoted to test preparation. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a § 504 plan of a qualified student with disability or federal law relating to ELL or the IEP of a student with disability.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on March 26, 2014, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule require that the Compliance Cost section of the previously published Regulatory Flexibility Analysis relating to local governments be revised to read as follows:
COMPLIANCE COSTS:
The proposed amendment makes a series of changes to Subpart 30-2 of the Rules of the Board of Regents, to conform to Chapter 56 of the Laws of 2014 and to support the commitment made by the Board of Regents and the Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in grades kindergarten through second grade are not subject to traditional standardized testing.
First, the proposed amendment provides that no APPR plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third party or other comparable entity. The proposed amendment does not preclude the use of school- or BOCES-wide, group, or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES-developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner.
The proposed amendment further provides that effective March 2, 2014, the Department will remove all third-party assessments approved for use in kindergarten through grade two from the list of approved student assessments for use in APPR plans for the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined in the regulations, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance. The proposed amendment also ensures that any APPR plan that has been approved by the Commissioner for use prior to April 1, 2014 shall remain in effect in accordance with Education Law § 3012-c(2)(l) and those districts and BOCES will be able to continue to use those assessments until a material change is made to their APPR plan to eliminate the use of such assessments.
The proposed amendment further provides that if any district or BOCES wishes to make material changes to a plan that solely relate to the elimination of unnecessary assessments that are used on students for APPR purposes, the Department shall expedite the review of such changes and will only review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and Subpart 30-2. To conform to Chapter 56 of the Laws of 2014, the proposed amendment requires that the Commissioner complete his review of such materials within ten business days of submission of properly and completely submitted material changes. The amendment clarifies that to be considered properly and completely submitted, the submission must use the form prescribed by the Commissioner and meet the requirements of Education Law 3012-c and this Subpart, and contain all required information including all appropriate signatures with appropriate dates.
The proposed amendment also requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of the minimum required instructional hours for such classroom or program of the grade is devoted to traditional standardized assessments and that no more than two percent of the minimum required instructional hours for such grade are spent devoted to test preparation. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to English language learners or the individualized education program of a student with disability.
It further requires that any plan submitted for the 2014-2015 school year and thereafter must include a signed certification, attesting that the amount of time devoted to required State assessments administered by or on behalf of the State for each grade does not exceed, in the aggregate, one percent of the minimum in required annual instructional hours for such grade. Nothing in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to English language learners or the individualized education program of a student with disability.
The proposed amendment also re-defines core subject areas for the State growth or other comparable measures subcomponent to remove sixth through eighth grade social studies and sixth through seventh science from the definition. This revision will help to provide additional, no-cost options to districts and BOCES who may wish to utilize a school-wide, group, or team measure based on one or more State or Regents assessments in sixth through eight social studies and/or sixth through seventh science.
The proposed amendment requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of the minimum required instructional hours for such classroom or program of the grade is devoted to traditional standardized assessments and that no more than two percent of the minimum required instructional hours for such grade are spent devoted to test preparation. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to English language learners or the individualized education program of a student with disability.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on March 26, 2014, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.
The above revisions to the proposed rule require that the Reporting, Recordkeeping, and Other Compliance Requirements; and Professional Services Section of the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment makes a series of changes to Subpart 30-2 of the Rules of the Board of Regents, to conform to Chapter 56 of the Laws of 2014 and to support the commitment made by the Board of Regents and the Commissioner to ensure that students are not unnecessarily burdened by over-testing or testing that takes away from the core instructional time in our classrooms and schools. Further, these amendments help to ensure that our youngest students in grades kindergarten through second grade are not subject to traditional standardized testing.
First, the proposed amendment provides that no APPR plan shall be approved by the Commissioner for use in the 2014-2015 school year or thereafter that provides for the administration of traditional standardized assessments to students in kindergarten through grade two that are not being used for diagnostic purposes or are required to be administered by federal law, including but not limited to assessments developed by any vendor, third party or other comparable entity. The proposed amendment does not preclude the use of school- or BOCES-wide, group, or team results using State assessments that are administered to students in higher grades in the school or a district, regional or BOCES-developed student assessment that is developed in collaboration with a vendor, if otherwise allowed under this section or guidelines of the Commissioner.
The proposed amendment further provides that effective March 2, 2014, the Department will remove all third-party assessments approved for use in kindergarten through grade two from the list of approved student assessments for use in APPR plans for the 2014-2015 school year and thereafter. However, an assessment that is not a traditional standardized assessment may be considered an approved student assessment if the superintendent, district superintendent, or chancellor certifies in its APPR plan that the assessment is a not a traditional standardized assessment, as defined in the regulations, and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance. The proposed amendment also ensures that any APPR plan that has been approved by the Commissioner for use prior to April 1, 2014 shall remain in effect in accordance with Education Law § 3012-c(2)(l) and those districts and BOCES will be able to continue to use those assessments until a material change is made to their APPR plan to eliminate the use of such assessments.
The proposed amendment further provides that if any district or BOCES wishes to make material changes to a plan that solely relate to the elimination of unnecessary assessments that are used on students for APPR purposes, the Department shall expedite the review of such changes and will only review those sections of the plan that relate to the eliminated assessments to ensure compliance with Education Law § 3012-c and Subpart 30-2. To conform to Chapter 56 of the Laws of 2014, the proposed amendment requires that the Commissioner complete his review of such materials within ten business days of submission of properly and completely submitted material changes. The amendment clarifies that to be considered properly and completely submitted, the submission must use the form prescribed by the Commissioner and meet the requirements of Education Law 3012-c and this Subpart, and contain all required information including all appropriate signatures with appropriate dates.
The proposed amendment also requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of the minimum required instructional hours for such classroom or program of the grade is devoted to traditional standardized assessments and that no more than two percent of the minimum required instructional hours for such grade are spent devoted to test preparation. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to English language learners or the individualized education program of a student with disability.
It further requires that any plan submitted for the 2014-2015 school year and thereafter must include a signed certification, attesting that the amount of time devoted to required State assessments administered by or on behalf of the State for each grade does not exceed, in the aggregate, one percent of the minimum in required annual instructional hours for such grade. Nothing in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to English language learners or the individualized education program of a student with disability.
The proposed amendment also re-defines core subject areas for the State growth or other comparable measures subcomponent to remove sixth through eighth grade social studies and sixth through seventh science from the definition. This revision will help to provide additional, no-cost options to districts and BOCES who may wish to utilize a school-wide, group, or team measure based on one or more State or Regents assessments in sixth through eight social studies and/or sixth through seventh science.
The proposed amendment requires that for any APPR plan submitted to the Commissioner for approval for use in the 2014-2015 school year, the plan must include a signed certification by the superintendent, district superintendent or chancellor that attests that no more than one percent of the minimum required instructional hours for such classroom or program of the grade is devoted to traditional standardized assessments and that no more than two percent of the minimum required instructional hours for such grade are spent devoted to test preparation. Time devoted to teacher administered classroom quizzes or exams, portfolio reviews, or performance assessments shall not be counted towards the limits. In addition, formative and diagnostic assessments shall not be counted towards the limits established by this subdivision and nothing in in this subdivision shall be construed to supersede the requirements of a section 504 plan of a qualified student with disability or federal law relating to English language learners or the individualized education program of a student with disability.
Revised Job Impact Statement
Since publication of the Notice of Emergency Adoption and Revised Rule Making in the State Register on March 26, 2014, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.
The proposed rule, as so revised, implements Chapter 56 of the Laws of 2014, by defining traditional standardized assessments, conforming the expedited review process for material changes to eliminate unnecessary tests to the new law, and establishes caps on testing time for State tests (1%) and other standardized tests (1%), and for test preparation time under standardized conditions (2%) based on the minimum required annual instructional hours for such grade. The revised rule will not have a substantial adverse impact on job or employment opportunities. Because it is evident from the nature of the revised rule that it will have no impact on jobs or employment opportunities, no further measures were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Assessment of Public Comment
Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on March 26, 2014, the State Education Department received the following comments.
1. COMMENT: Approximately 85 districts in our area used AIMSweb, NWEA, iReady, STAR Math, STAR Reading and/or STAR Early Literacy as a diagnostic tool prior to NYSED approving them as an approved assessment for APPR purposes. Districts were extremely happy when these assessments were approved as student assessments for use by school districts and BOCES in teacher and principal evaluations because, not only could they be used for diagnostic and instructional purposes, it could be used to satisfy the testing requirements of APPR. Please consider keeping these assessments on the approved list because of their diagnostic and instructional uses for grades K-2. If eliminated, districts would be forced to create another assessment or measure possibly causing MORE testing of the K-2 students rather than less as was the intent of the change in regulations.
RESPONSE: Effective March 2, 2014, all third-party assessments used in grades K-2 have been removed from the actual “approved assessment” list and pursuant to Chapter 56 of the Laws of 2014, school districts are prohibited from using traditional standardized assessments in these grades. However, Chapter 56 of the Laws of 2014 and the proposed amendment clarify that any school district or BOCES with an annual professional performance review plan approved or determined by the Commissioner on or before March 31, 2014 that provides for the use of an approved student assessment for students in kindergarten through grade two remains in effect in accordance with Education Law § 3012-c(l)(2) and the district or BOCES may continue to use such assessments until a material change is made and approved by the Commissioner to eliminate such use.
The revised proposed amendment defines a traditional standardized assessment as a systematic method of gathering information from objectively scored items that allow the test taker to select one or more of the given options or choices as their response. Examples include multiple-choice, true-false, and matching items. Traditional standardized assessments are those that require the student (and not the examiner/assessor) to directly use a "bubble" answer sheet. Traditional standardized assessments do not include performance assessments or assessments in which students perform real-world tasks that demonstrate application of knowledge and skills; assessments that are otherwise required to be administered by federal law; and/or assessments used for diagnostic or formative purposes. Therefore, if these assessments are used for diagnostic purposes and the superintendent, district superintendent, or chancellor of a school district/BOCES that chooses to use such assessment certifies in its APPR plan that the assessment is a not a traditional standardized assessment and that the assessment meets the minimum requirements prescribed by the Commissioner in guidance, these assessments may be used in grades K-2 for APPR purposes.
2. COMMENT: The provision that no APPR plan for the 2014-15 school year will be approved if it includes "traditional standardized third party or vendor assessments to students in kindergarten through grade two." Not knowing what your definition of "traditional third party, standardized assessments will be" I have a few concerns.
First, our district chose to use AISMweb Reading & Math for our Growth sub-component for K-2 teachers in our APPR plan. We made this decision so that we would be able to use an assessment that was already in place for our students. Simply said, we wouldn't be adding or creating a new assessment on top of what we already use for RTI/DIagnostic/Formative purposes.
Secondly, it would seem that the exclusion of RTI/Diagnostic/Formative assessments such as AIMSweb, which are used to meet the state mandate of implementing an RTI approach to identifying students with learning disabilities, would have the opposite effect of reducing testing for K-2 students. For example, since we have a K-2 building we would need to create a new (and likely longer, less reliable) assessment to use for our K-2 teacher's growth sub-component. This would add to the time we utilize for assessments and end up adding an assessment that is primarily used for APPR purposes.
RESPONSE: See response to Comment #1.
3. COMMENT: Our district uses two of the approved K-2 assessment products: Aimsweb and STAR (Renaissance Learning) as diagnostic and instructional tools while also using the assessment to meet APPR requirements. The possibility of removing these options for our districts will actually INCREASE the amount of testing necessary for K-2 students instead of decreasing it as the adjustment to the regulation intends. Please consider this carefully before a decision is finalized.
RESPONSE: See response to Comment #1.
4. COMMENT: Our district has, for many years, used AIMSWeb as a diagnostic test for students K-8. We were certainly pleased when SED approved AIMSWeb for use with APPRs, as we were able to limit testing of students for APPR purposes by using this test both for diagnostic and for APPR purposes. The recommendations to the BOR will force disapproval of the use of these tests for the APPR. Consequently, our district will be forced to either use a group/building metric for the APPR or find another test which can be used. In the case of the latter, we will indeed be ADDING tests for the K-2 students as we will no longer be able to use AIMSWeb for both purposes. Again, AIMSWeb has been used in this district for years as a diagnostic. As well, the time spent on this assessment is well under the 1% cap. It is working and we are concerned about a change simply for the sake of change, or a change that is responsive to political pressures rather than a consideration of what is actually happening in schools.
While a group metric is another option, as a district, we have chosen to avoid that route, particularly as the results of the 3rd grade ELA and Math assessments would be used for the group metric. We believe that a teacher's score for their APPR should as closely as possible reflect the current work they are doing with their current classes. Certainly, the work that a K-2 teacher does will eventually contribute to a student's score in 3rd grade, but issues of cohorts and student population within any given year may not accurately represent the work that they are currently doing.
So, we are asking for clarification. If we are using AIMSWeb for diagnostic purposes, in the interest of avoiding double testing, can the results of that test be used for APPR purposes? If the answer currently is no, we respectfully ask you to reconsider this decision which will not only negatively impact districts but, most importantly, will negatively impact children.
RESPONSE: See response to Comment #1.
5. COMMENT: Although I, too, support eliminating K-2 standardized assessments for APPR purposes, I propose that districts have the ability to continue using AIMSweb (included on the State approved list) for APPR purposes. First, AIMSweb houses data for short (1 - 8 minutes) reading, writing, and math probes (assessments). These probes are better described as formative/interim assessments typically used for Response to Interventions (RtI) decision-making. What is more, the early literacy probes such as letter naming measures and letter sound measures are performance tasks. In essence, AIMSweb probes are similar in nature to the Dynamic Indicators of Basic Early Literacy Skills (DIBELS).
I bring this to your attention because we have been using AIMSweb probes two ways in grades K-5. First way, as universal screenings for RTI and second, to meet APPR guidelines for our K-5 student population. I'm thinking that districts who have double-dipped would appreciate having the ability to make a local decision regarding AIMSweb use for K-2 APPR purposes.
