Specific reasons underlying the finding of necessity:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Subpart A of Part AA of Chapter 56 of the Laws of 2014, which became effective April 1, 2014.
Part AA, Subpart A of Chapter 56 of the Laws of 2014, which became effective on April 1, 2014, adds a new subdivision (44) to Education Law section 305, and amends Education Law section 3602-e(15), to direct the Commissioner to prohibit the administration of traditional standardized tests, as defined in regulations issued by the Commissioner, in prekindergarten programs (including Universal Prekindergarten programs), and grades kindergarten through second grade. Consistent with the statute, the proposed amendment prohibits the administration of traditional standardized tests in prekindergarten programs (including Universal Prekindergarten programs), and grades kindergarten through two.
Because the Board of Regents meets at scheduled intervals, the July 10-11, 2014 meeting is the earliest the proposed amendment could be presented for adoption, after publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on May 14, 2014 and expiration of the 45-day public comment period required under the State Administrative Procedure Act. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the July meeting, would be July 30, 2014, the date a Notice of Adoption would be published in the State Register. However, emergency adoption of the proposed amendment is necessary now for the preservation of the general welfare to immediately conform the Commissioner's Regulations to timely implement Subpart A of Part AA of Chapter 56 of the Laws of 2014, relating to prohibiting the administration of traditional standardized tests in prekindergarten programs (including Universal Pre-Kindergarten programs and grades kindergarten through two, and thus ensure the timely implementation of the statute.
It is anticipated that the proposed amendment will be presented to the Board of Regents for permanent adoption at its July 10-11, 2014 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.
Subject:
Traditional standardized tests administration.
Purpose:
To prohibit administration of traditional standardized tests in prekindergarten programs and in grades kindergarten through two.
Text of emergency/proposed rule:
1. Subdivision (a) of section 100.3 of the Regulations of the Commissioner of Education is amended, effective April 29, 2014, as follows:
(a) Prekindergarten and kindergarten programs operated by public schools and voluntarily registered nonpublic schools.
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) Prohibition on administration of traditional standardized tests.
(i) For purposes of this subdivision, “traditional standardized test” 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 tests are those that require the student (and not the examiner/assessor) to directly use a "bubble" answer sheet. Traditional standardized tests 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).
(ii) Notwithstanding the provisions of this subdivision, no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in pre-kindergarten and kindergarten programs; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
2. Paragraph (2) of subdivision (b) of section 100.3 of the Regulations of the Commissioner of Education is amended, effective April 29, 2014, as follows:
(2) Required assessments.
(i) Except as otherwise provided in subparagraphs (ii), [and] (iii) and (v) of this paragraph, at the specified grade level, all students shall take the following tests, provided that testing accommodations may be used as provided for in section 100.2(g) of this Part in accordance with department policy:
(a) . . .
(b) . . .
(ii) . . .
(iii) . . .
(iv) . . .
(v) Prohibition on administration of traditional standardized tests.
(a) For purposes of this subdivision, “traditional standardized test” 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 tests are those that require the student (and not the examiner/assessor) to directly use a "bubble" answer sheet. Traditional standardized tests 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).
(b) Notwithstanding the provisions of this subdivision, no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in grades one and two; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
3. Section 151-1.2 of the Regulations of the Commissioner of Education is amended, effective April 29, 2014, as follows:
§ 151-1.2 Definitions.
As used in this Subpart:
(a) . . .
(b) . . .
(c) . . .
(d) . . .
(e) “Traditional standardized test” 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 tests are those that require the student (and not the examiner/assessor) to directly use a "bubble" answer sheet. Traditional standardized tests 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).
3. Subdivision (b) of section 151-1.3 of the Regulations of the Commissioner of Education is amended, effective April 29, 2014, as follows:
(b) Assessments, monitoring and reporting.
(1) . . .
(2) . . .
(3) . . .
(4) Prohibition on administration of traditional standardized tests. Notwithstanding the provisions of this subdivision, no school district shall administer traditional standardized tests in a pre-kindergarten program; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 27, 2014.
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:
Ken Slentz, Deputy Commissioner, State Education Department, Office of P-12 Education, State Education Building 2M, 89 Washington Ave., Albany, NY 12234, (518) 474-5520, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head, and authorizes the Regents to appoint the Commissioner of Education as the chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 authorizes the Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.
Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law section 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education, and authorizes the Commissioner to enforce laws relating to the educational system and to execute the Regents' educational policies. Section 305(20) provides Commissioner shall have such further powers and duties as charged by the Regents.
Education Law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.
Education Law section 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of education.
Education Law section 3204(3) provides for required courses of study in the public schools and authorizes SED to alter the subjects of required instruction.
Education Law section 3602-e(12) authorizes the Regents and the Commissioner to adopt regulations to implement the provisions of that section, relating to universal prekindergarten programs.
Section 1 of Subpart A of Part AA of Chapter 56 of the Laws of 2014 amended Education Law section 3602-e(15) to direct the Commissioner to prohibit the administration of traditional standardized tests, as defined in regulations issued by the Commissioner, in universal prekindergarten programs.
Section 2 of Subpart A of Part AA of Chapter 56 of the Laws of 2014 added a new Education Law section 305(44) to direct the Commissioner to prohibit the administration of traditional standardized tests, as defined in regulations issued by the Commissioner, in prekindergarten programs and in grades kindergarten through second grade.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the above statutory authority and is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014.
3. NEEDS AND BENEFITS:
On March 31, 2014, Governor Cuomo signed Chapter 56 of the Laws of 2014. Chapter 56 enacts into law major components of legislation necessary to implement the education, labor, housing, and family assistance budget for the 2014-2015 state fiscal year.
Part AA, Subpart A of Chapter 56 of the Laws of 2014 adds a new subdivision (44) to Education Law section 305, and amends Education Law section 3602-e(15), to direct the Commissioner to prohibit the administration of traditional standardized tests, as defined in regulations issued by the Commissioner, in prekindergarten programs (including universal prekindergarten programs) and in grades kindergarten through two. Consistent with the statute, the proposed amendment provides that no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in pre-kindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
4. COSTS:
Cost to the State: none.
Costs to local government: none.
Cost to private regulated parties: none.
Cost to regulating agency for implementation and continued administration of this rule: none.
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional costs on the State, regulated parties, or the State Education Department.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional program, service, duty or responsibility upon local governments. Consistent with the statute, the proposed amendment provides that no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in pre-kindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
6. PAPERWORK:
The proposed amendment does not impose any specific recordkeeping, reporting or other paperwork requirements.
7. DUPLICATION:
The proposed amendment does not duplicate existing State or federal requirements. The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014.
8. ALTERNATIVES:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014. There were no significant alternatives and none were considered.
9. FEDERAL STANDARDS:
There are no applicable Federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the rule by its effective date. The proposed amendment merely conforms the Commissioner’s Regulations to Subpart A of Part AA of Chapter 56 of the Laws of 2014, which became effective on March 31, 2014.
Regulatory Flexibility Analysis
Small businesses:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, relating to a prohibition on the administration of traditional standardized tests in prekindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two. The proposed amendment relates to State learning standards, State assessments, graduation and diploma requirements, and higher levels of student achievement. 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.
Local governments:
1. EFFECT OF RULE:
The proposed amendment applies to each of the 695 public school districts in the State, and to charter schools that are authorized to issue Regents diplomas with respect to State assessments and high school graduation and diploma requirements. At present, there are 34 charter schools authorized to issue Regents diplomas.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional compliance requirements on local governments. Subpart A of Part AA of Chapter 56 of the Laws of 2014 adds a new Education Law section 305(44), and amends Education Law section 3602-e(15), to direct the Commissioner to prohibit the administration of traditional standardized tests, as defined in regulations issued by the Commissioner, in prekindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two. Consistent with the statute, the proposed amendment provides that no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in pre-kindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
3. PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional service requirements on local governments.
4. COMPLIANCE COSTS:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional costs on school districts or charter schools.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no costs or technological requirements on school districts or charter schools.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment merely conforms the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional compliance requirements or costs on school districts or charter schools. Consistent with the statute, the proposed amendment provides that no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in pre-kindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed rule have been provided to District Superintendents with the request that they distribute it 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 and to charter schools.
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 amendment is necessary to implement statutory requirements in Education Law section 3602-e(15) as amended by section 1 of Subpart A of Part AA of Chapter 56 of the Laws of 2014, and Education Law 305(44) as added by section 2 of Subpart A of Part AA of Chapter 56 of the Laws of 2014, and therefore the substantive provisions of the proposed rule cannot be repealed or modified unless there is a further statutory change. 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 amendment applies to each of the 695 public 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. The proposed amendment also applies to charter schools in such areas, to the extent they offer instruction in the high school grades and issue Regents diplomas. At present, there is one charter school located in a rural area that is authorized to issue Regents diplomas.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional compliance requirements on school districts or charter schools in rural areas. Subpart A of Part AA of Chapter 56 of the Laws of 2014 adds a new Education Law section 305(44) and amends Education Law section 3602-e(15) to direct the Commissioner to prohibit the administration of traditional standardized tests, as defined in regulations issued by the Commissioner, in prekindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two. Consistent with the statute, the proposed amendment provides that no school district or voluntarily registered nonpublic school shall administer traditional standardized tests in pre-kindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two; provided that nothing herein shall prohibit assessments in which students perform real-world tasks that demonstrate application of knowledge and skills or assessments that are otherwise required to be administered by federal law.
The proposed amendment imposes no additional professional service requirements.
3. COMPLIANCE COSTS:
The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional costs on school districts or charter schools in rural areas.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is merely conforms the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, and does not impose any additional compliance requirements or costs on school districts or charter schools in rural areas. Because the statutory requirement upon which the proposed amendment is based applies to all school districts in the State and to charter schools authorized to issue Regents diplomas, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.
5. RURAL AREA PARTICIPATION:
Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located 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 amendment is necessary to implement statutory requirements in Education Law section 3602-e(15), as amended by section 1 of Subpart A of Part AA of Chapter 56 of the Laws of 2014, and Education Law 305(44), as added by section 2 of Subpart A of Part AA of Chapter 56 of the Laws of 2014, and therefore the substantive provisions of the proposed rule cannot be repealed or modified unless there is a further statutory change. 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 is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014, relating to a prohibition on the administration of traditional standardized tests in prekindergarten programs (including universal prekindergarten programs) and in grades kindergarten through grade two. The proposed amendment relates to State learning standards, State assessments, graduation and diploma requirements, and higher levels of student achievement, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
