Home » 2014 Issues » May 14, 2014 » EDU-19-14-00008-EP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
EDU-19-14-00008-EP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
5/14/14 N.Y. St. Reg. EDU-19-14-00008-EP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 19
May 14, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-19-14-00008-EP
Filing No. 341
Filing Date. Apr. 29, 2014
Effective Date. Apr. 29, 2014
Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of section 100.18(i) and (j) of Title 8 NYCRR.
Specific reasons underlying the finding of necessity:
At its February 2014 meeting, the Board of Regents directed the State Education Department (SED) to submit a an ESEA Flexibility Waiver Renewal Request to the United States Department of Education (USDE) to amend the provisions of the approved ESEA Flexibility Waiver Request related to making adequate yearly progress (AYP); removal criteria for Priority Schools, Focus Districts and Focus Schools; and the methodology used to determine elementary-middle level English language arts and mathematics annual measurable objectives (AMOs).
On April 22, 2014, the USDE approved SED’s request to reset the AMOs. USDE review of the remainder of the State’s Waiver Renewal application is still pending. In addition, the USDE informed SED that the proposed amendment of section 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools, would not be considered to be an amendment to SED’s approved ESEA Flexibility Waiver such that USDE approval would be required.
Consistent with the approved Waiver Renewal Request, the proposed amendment amends paragraph 100.18(j) of the Commissioner's Regulations to revise elementary and middle level AMOs to reflect the results from 2012-13 school year assessments that were based on Common Core Learning Standards aligned to college- and career-readiness.
Consistent with discussions between USDE and SED staff, the proposed amendment would also amend paragraph 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools.
Because the Board of Regents meets at scheduled intervals, the July 10-11, 2014 meeting is the earliest the proposed rule could be presented for adoption, after publication of a Notice of Proposed Rule Making in the State Register 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 these regulations is necessary now for the preservation of the general welfare to immediately conform the Commissioner's Regulations to: (1) timely implement New York State's approved ESEA Flexibility Waiver with respect to the methodology for setting the AMOs for elementary-middle level ELA and mathematics, and (2) allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools, so that school districts may timely meet school/school district accountability requirements for the 2013-2014 school year and beyond.
It is anticipated that the proposed rule 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:
Elementary and Secondary Education Act (ESEA) Flexibility and school and school district accountability.
Purpose:
To conform the Commissioner's Regulations to New York State's ESEA Flexibility Waiver Renewal application.
Text of emergency/proposed rule:
1. Paragraph (2) of subdivision (i) of section 100.18 of the Regulations of the Commissioner of Education is amended, effective April 29, 2014, as follows:
(2) Removal of focus district and focus school designation.
(i) . . .
(ii) . . .
(iii) . . .
(iv) If the school district does not meet the criteria for removal but one or more of its focus schools meet the criteria for removal, the school district must, for each focus school it petitions for removal of focus designation, identify school(s) not currently identified as priority or focus to replace the school(s) meeting the criteria for removal, except that a school district is not required to:
(a) designate additional new focus schools to replace focus schools meeting the criteria for removal if by so doing the number of focus schools in the district would exceed the number of focus schools that the Commissioner requires a school district to identify pursuant to paragraph (5) of subdivision (g) of this section; or
(b) designate a school as a focus school that meets the criteria for focus school removal pursuant to subdivision (i) of this section in order to replace a focus school meeting the criteria for removal.
(v) Notwithstanding the provisions of subparagraph (iv) of this paragraph, a school district must identify at least one school as focus school if the school district does not meet the criteria for removal but all of its priority and focus schools meet the criteria for removal.
[(iv)] (vi) Removal of focus charter school designation.
(a) . . .
(b) . . .
2. Subdivision (j) of section 100.18 of the Regulations of the Commissioner is amended, effective April 29, 2014, as follows:
(j) Public school, school district and charter school performance criteria. Each school district and school accountability group shall be subject to the performance criteria specified below:
(1) Elementary/middle-level English language arts and mathematics, and high school English language arts and mathematics requirements. An annual measurable objective is a performance index set by the commissioner for 2010-11 school year results for each accountability group and that increases annually in equal increments so as to reduce by half the gap between the performance index for each accountability group in the 2010-11 school year and reach a goal of a performance index of 200 by the 2016-17 school year; except that, beginning with the 2012-13 school year and thereafter, for each accountability group in elementary/middle-level English language arts and mathematics, an annual measurable objective is a performance index set by the commissioner for the 2012-13 school year that increases annually in equal increments so as to reduce by half the gap by the 2016-2017 school year between the performance index of each accountability group in the 2012-13 school year and a performance index of 147.
(2) . . .
(3) . . .
(4) . . .
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 West, 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 existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.
Education Law section 207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on Department.
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 209 authorizes the Regents to establish secondary school examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations; and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.
Education Law section 210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.
Education Law section 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Education Law section 305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents. 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 Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.
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 3713(1) and (2) authorize State and school districts to accept federal law making appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the above statutory authority and is necessary to implement Regents policy relating to public school and district accountability.
3. NEEDS AND BENEFITS:
The proposed amendment is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal Request relating to the methodology for determining Annual Measurable Objectives for school district/school accountability purposes.
At its February 2014 meeting, the Board of Regents directed the State Education Department (SED) to submit a an ESEA Flexibility Waiver Renewal Request to the United States Department of Education (USDE) to amend the provisions of the State’s approved ESEA Flexibility Waiver Request related to making adequate yearly progress (AYP); removal criteria for Priority Schools, Focus Districts and Focus Schools; and the methodology used to determine elementary-middle level English language arts and mathematics annual measurable objectives (AMOs).
On April 22, 2014, the USDE approved SED’s request to reset the AMOs. USDE review of the remainder of the State’s Waiver Renewal application is still pending. In addition, the USDE informed SED that the proposed amendment of section 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools, would not be considered to be an amendment to SED’s approved ESEA Flexibility Waiver such that USDE approval would be required.
Consistent with the approved Waiver Renewal Request, the proposed amendment amends paragraph 100.18(j) of the Commissioner's Regulations to revise elementary and middle level AMOs to reflect the results from 2012-13 school year assessments that were based on Common Core Learning Standards aligned to college- and career-readiness.
Consistent with discussions between USDE and SED staff, the proposed amendment would also amend paragraph 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools.
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 does not impose any direct costs on the State, local governments, private regulated parties or the State Education Department. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment relates to State and Federal standards for public school and school district accountability and will not impose any additional program, service, duty or responsibility upon local governments.
If a school district does not meet the criteria for removal but one or more of its focus schools meet the criteria for removal, the school district must, for each focus school it petitions for removal of focus designation, identify school(s) not currently identified as priority or focus to replace the school(s) meeting the criteria for removal, except that a school district is not required to:
(a) designate additional new focus schools to replace focus schools meeting the criteria for removal if by so doing the number of focus schools in the district would exceed the number of focus schools that the Commissioner requires a school district to identify pursuant to 100.18(g)(5); or
(b) designate a school as focus that meets the criteria for focus school removal pursuant to 100.18(i) in order to replace a focus school meeting the criteria for removal.
Notwithstanding the above, a school district must identify at least one school as focus school if the school district does not meet the criteria for removal but all of its priority and focus schools meet the criteria for removal.
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.
8. ALTERNATIVES:
There were no significant alternatives and none were considered. The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to the methodology for determing Annual Measurable Objectives for school district/school accountability purposes. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
9. FEDERAL STANDARDS:
The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to the methodology for determining Annual Measurable Objectives for school district/school accountability purposes. The State Education Department used USDE provided guidance provided by the United States Education Department in drafting the amendments to 100.18(i) and (j).
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the proposed rule by its effective date. Furthermore, the Department intends to take steps to provide sufficient notice of the proposed amendment to ensure that school districts and students are made aware of the rule changes. The Department will also take steps to share a variety of resources to school districts to provide guidance with implementation.
Regulatory Flexibility Analysis
Small businesses:
The proposed amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved ESEA Waiver Renewal Request relating to the methodology for determining Annual Measurable Objectives for purposes of school district/school accountability. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and 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.
Local governments:
1. EFFECT OF RULE:
The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act of 1965, as amended.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to the methodology for calculation of Annual Measurable Objectives (AMOs) for purposes of school district/school accountability.
Consistent with the approved Waiver Renewal Request, the proposed amendment amends paragraph 100.18(j) of the Commissioner's Regulations to revise elementary and middle level AMOs to reflect the results from 2012-13 school year assessments that were based on Common Core Learning Standards aligned to college- and career-readiness.
Consistent with discussions between United States Department of Education (USDE) and SED staff, the proposed amendment would also amend paragraph 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools.
If a school district does not meet the criteria for removal but one or more of its focus schools meet the criteria for removal, the school district must, for each focus school it petitions for removal of focus designation, identify school(s) not currently identified as priority or focus to replace the school(s) meeting the criteria for removal, except that a school district is not required to:
(a) designate additional new focus schools to replace focus schools meeting the criteria for removal if by so doing the number of focus schools in the district would exceed the number of focus schools that the Commissioner requires a school district to identify pursuant to 100.18(g)(5); or
(b) designate a school as focus that meets the criteria for focus school removal pursuant to 100.18(i) in order to replace a focus school meeting the criteria for removal.
Notwithstanding the above, a school district must identify at least one school as focus school if the school district does not meet the criteria for removal but all of its priority and focus schools meet the criteria for removal.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional services requirements.
4. COMPLIANCE COSTS:
The proposed amendment does not impose any direct costs on school districts or charter schools. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the Compliance Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to the methodology for calculation of Annual Measurable Objectives for purposes of school district/school accountability. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended.
Consistent with the approved Waiver Renewal Request, the proposed amendment amends paragraph 100.18(j) of the Commissioner's Regulations to revise elementary and middle level AMOs to reflect the results from 2012-13 school year assessments that were based on Common Core Learning Standards aligned to college- and career-readiness.
Consistent with discussions between USDE and SED staff, the proposed amendment would also amend paragraph 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools.
The rule has been carefully drafted to meet specific federal and State requirements. The Department intends to take steps to provide sufficient notice of the proposed amendment to ensure that school districts and students are made aware of the rule changes. The Department will also take steps to share a variety of resources to school districts to provide guidance with implementation.
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 partially implement New York State’s approved ESEA Waiver Renewal Request relating to the methodology for determining Annual Measurable Objectives for purposes of school district/school accountability. 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 public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act (ESEA) of 1965, as amended, 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 is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to the methodology for calculation of Annual Measurable Objectives (AMOs) for purposes of school district/school accountability.
Consistent with the approved Waiver Renewal Request, the proposed amendment amends paragraph 100.18(j) of the Commissioner's Regulations to revise elementary and middle level AMOs to reflect the results from 2012-13 school year assessments that were based on Common Core Learning Standards aligned to college- and career-readiness.
Consistent with discussions between United States Department of Education (USDE) and SED staff, the proposed amendment would also amend paragraph 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools.
If a school district does not meet the criteria for removal but one or more of its focus schools meet the criteria for removal, the school district must, for each focus school it petitions for removal of focus designation, identify school(s) not currently identified as priority or focus to replace the school(s) meeting the criteria for removal, except that a school district is not required to:
(a) designate additional new focus schools to replace focus schools meeting the criteria for removal if by so doing the number of focus schools in the district would exceed the number of focus schools that the Commissioner requires a school district to identify pursuant to 100.18(g)(5); or
(b) designate a school as focus that meets the criteria for focus school removal pursuant to 100.18(i) in order to replace a focus school meeting the criteria for removal.
Notwithstanding the above, a school district must identify at least one school as focus school if the school district does not meet the criteria for removal but all of its priority and focus schools meet the criteria for removal.
The proposed amendment imposes no additional professional service requirements.
3. COMPLIANCE COSTS:
The proposed amendment does not impose any direct costs on school districts or charter schools in rural areas. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to the methodology for calculation of Annual Measurable Objectives for purposes of school district/school accountability. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended.
Consistent with the approved Waiver Renewal Request, the proposed amendment amends paragraph 100.18(j) of the Commissioner's Regulations to revise elementary and middle level AMOs to reflect the results from 2012-13 school year assessments that were based on Common Core Learning Standards aligned to college- and career-readiness.
Consistent with discussions between USDE and SED staff, the proposed amendment would also amend paragraph 100.18(i)(2) to allow certain Focus Schools to be removed from accountability designation without requiring that the removed schools be replaced by other schools.
The rule has been carefully drafted to meet specific federal and State requirements. Since these requirements apply to all local educational agencies in the State that receive ESEA funds, it is not possible to adopt different standards for school districts and charter schools in rural areas. The Department intends to take steps to provide sufficient notice of the proposed amendment to ensure that school districts and students are made aware of the rule changes. The Department will also take steps to share a variety of resources to school districts to provide guidance with implementation.
5. RURAL AREA PARTICIPATION:
The proposed amendment 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 amendment is necessary to implement to partially implement New York State’s approved ESEA Waiver Renewal Request relating to the methodology for determining Annual Measurable Objectives for purposes of school district/school accountability. 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 public school and school district accountability and is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to the methodology for determining Annual Measurable Objectives for purposes of school district/school accountability. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have 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.
