PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 100.13 and amendment of section 170.12 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2), 211-d(1-9); and L. 2007, ch. 57
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts.
Education Law section 211-d requires each school district: (1) that has at least one school currently identified as (i) requiring academic progress or (ii) in need of improvement or (iii) in corrective action or (iv) in restructuring; and (2) that receives an increase in either (i) total foundation aid compared to the base year in an amount that equals or exceeds either $15 million dollars or 10 percent of the amount received in the base year, whichever is less, or (ii) a supplemental educational improvement plan grant, to prepare a contract for excellence, which shall describe how the total foundation aid and supplemental educational improvement plan grants shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement. The statute requires the Commissioner to establish by regulation the allowable programs and activities for such purposes. The statute also requires the Commissioner to prescribe a format by which each affected school district shall publicly report its expenditures of total foundation aid.
State Administrative Procedure Act (SAPA) section 202 generally provides that a rule may not be adopted until at least 45 days after publication of a Notice of Proposed Rule Making in the State Register. Because the Board of Regents meets at fixed intervals, the earliest the proposed rule could be presented for adoption by the Board of Regents, after expiration of the 45-day public comment period prescribed by SAPA, is the July 25–27, 2007 Regents meeting. However, affected school districts need to know now what are the allowable programs and activities and other requirements necessary to implement Education Law section 211-d, so that they may timely prepare their contracts for the 2007–2008 school year pursuant to statutory requirements.
Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare in order to immediately establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for contracts for excellence under Education Law section 211-d, so that affected school districts may timely prepare such contracts for the 2007–2008 school year pursuant to statutory requirements.
It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the July 25–27, 2007 meeting of the Board of Regents, which is the first scheduled Regents meeting after expiration of the 45-day public comment period prescribed by the State Administrative Procedure Act.
Subject:
Contracts for excellence.
Purpose:
To implement Education Law section 211-d, as added by chapter 57 of the Laws of 2007, by establishing allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for purposes of preparation of contracts for excellence by certain specified school districts.
Substance of emergency/proposed rule (Full text is posted at the following State website: www.emsa.nysed.gov):
The State Education Department proposes to add a new section 100.13 and amend sections 170.12 of the Regulations of the Commissioner of Education, effective April 27, 2007. The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. The following is a summary of the provisions of the proposed rule.
Section 100.13(a) provides definitions of: (1) total foundation aid; (2) supplemental educational improvement plan grant; (3) contract amount; (4) base year; (5) experimental programs; (6) highly qualified teacher; and (7) response to intervention program.
Section 100.13(b) establishes applicability provisions, consistent with Chapter 57 of the Laws of 2007, for purposes of determining whether a school district is required to prepare a contract for excellence. A contract for excellence shall be prepared by each school district: (1) that has at least one school currently identified pursuant to section 100.2(p) of the Commissioner's Regulations as: (a) requiring academic progress; or (b) in need of improvement; or (c) in corrective action; or (d) in restructuring; and (2) that receives: (a) an increase in total foundation aid compared to the base year in an amount that equals or exceeds either fifteen million dollars or ten percent of the amount received in the base year, whichever is less; or (b) a supplemental educational improvement plan grant. For the 2007–2008 school year, such increase in total foundation aid shall be the amount of the difference between total foundation aid received for the current year and the total foundation aid base as defined in Education Law section 3602(1)(j). In the city school district of the city of New York, a contract for excellence shall be prepared for the city school district and each community district that meets the above criteria.
Section 100.13(c) establishes the requirements for the preparation and submission of contracts of excellence. Each contract for excellence shall be in a format, and submitted pursuant to a timeline, as prescribed by the commissioner and shall:
(1) describe how the contract amount shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(d);
(2) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(d), for which each sub-allocation of the contract amount shall be used and affirm that such programs shall predominately benefit students with the greatest educational needs including, but not limited to: (a) limited English proficient students and students who are English language learners; (b) students in poverty; and (c) students with disabilities;
(3) state, for all funding sources, whether federal, state or local, the instructional expenditures per pupil, the special education expenditures per pupil, and the total expenditures per pupil, projected for the current year and estimated for the base year; provided that no later than February 1 of the current school year, the school district shall submit a revised contract stating such expenditures actually incurred in the base year;
(4) include any programmatic data projected for the current year and estimated for the base year, as the commissioner may require; and
(5) in the city school district of the city of New York, include a plan that meets the requirements of section 100.13(d)(2)(i)(a), to reduce average class sizes within five years for the following grade ranges: (a) prekindergarten through grade three; (b) grades four through eight; and (c) grades nine through twelve. Such plan shall be aligned with the capital plan of the city school district of the city of New York and include continuous class size reduction for low performing and overcrowded schools beginning in the 2007–2008 school year and thereafter and also include the methods to be used to achieve proposed class sizes, such as the creation or construction of more classrooms and school buildings, the placement of more than one teacher in a classroom or methods to otherwise reduce the student to teacher ratio. Beginning in the 2008–2009 school year and thereafter, such plan shall provide for reductions in class size that, by the end of the 2011–2012 school year, will not exceed the prekindergarten through grade 12 class size targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research.
The commissioner shall approve each contract meeting the provisions of section 100.13(c) and shall certify, for each contract, that the expenditure of additional aid or grant amounts is in accordance with Education Law section 211-d(2).
Section 100.13(d) establishes the allowable programs and activities, including experimental programs. Section 100.13(d)(1) establishes general requirements for allowable programs and activities, including that such programs and activities: (1) predominately benefit those students in schools identified as requiring academic progress, in need of improvement, in corrective action, or restructuring; (2) predominately benefit students with the greatest educational needs including, but not limited to: students with limited English proficiency and students who are English language learners; students in poverty; and students with disabilities; (3) be consistent with federal and State statutes and regulations governing the education of such students; (4) be developed in reference to practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards; (5) where applicable, be accompanied by high quality, sustained professional development focused on content pedagogy, curriculum development, and/or instructional design in order to ensure successful implementation of each program and activity; (6) ensure that expenditures of the contract amount shall be used to supplement and not supplant funds expended by the district in the base year for such purposes; (7) ensure that all additional instruction is provided by appropriately certified teachers or highly qualified teachers where required by section 120.6 of this Title, emphasizing skills and knowledge needed to facilitate student attainment of State learning standards; and (8) be coordinated with all other allowable programs and activities included in the district's contract for excellence as part of the district's comprehensive educational plan.
Section 100.13(d)(2) establishes criteria for specific allowable programs and activities, which shall include: (1) class size reduction for (a) the city school district of the city of New York and (b) all other school districts; (2) student time on task; (3) teacher and principal quality initiatives; (4) middle school and high school restructuring; and (5) full-day kindergarten or prekindergarten programs.
Section 100.13(d)(2)(i) describes the requirements for class size reduction, including special provisions for the New York City school district. The New York City school district must allocate some of its total contract amount to class size reduction according to a plan, included in their contract and approved by the Commissioner pursuant to section 100.13(c), to reduce the average class size for the following grade ranges: prekindergarten to grade three, grades four through eight, and grades nine through twelve, commencing in the 2007–2008 school year and ending in the 2011–2012 school year, to target levels recommended by an expert panel appointed by the Commissioner. School districts outside of the NYC school district shall establish class size reduction goals in the 2007–2008 school year and demonstrate measurable progress towards meeting such goals; and beginning with the 2008–2009 school year, shall demonstrate measurable progress towards meeting the target levels recommended by an expert panel appointed by the Commissioner. The proposed rule also mandates that, in NYC school district, priority be given to prekindergarten through grade 12 students in schools requiring academic progress, correction, improvement or in restructuring and to overcrowded schools. Furthermore, it requires that classrooms created shall provide adequate and appropriate physical space to students and staff, among others. Class size reduction may be accomplished through the creation of additional classrooms and buildings, through assignment of more than one teacher to a classroom or, in the NYC school district, by other methods to reduce the student to teacher ratio, as approved by the Commissioner.
Section 100.13(d)(2)(ii) provides that allowable programs and activities related to student time on task may be accomplished by: (1) lengthened school days, (2) lengthened school years and (3) dedicated instructional time, including individual intervention, tutoring and student support services.
Section 100.13(d)(2)(iii) prescribes requirements for teacher and principal quality initiatives, including: (1) recruitment and retention of teachers, (2) mentoring for teachers and principals in their first or second year of a new assignment, (3) incentive programs for teacher placement, (4) instructional coaches, and (5) school leadership coaches. Districts shall ensure that a highly qualified teacher is in every classroom and an appropriately certified principal is assigned to every school.
Section 100.13(d)(2)(iv) provides that allowable programs and activities for middle and high school restructuring include: (1) instructional program changes to improve student achievement and attainment of the State learning standards and (2) structural organization changes. The section further requires that those districts choosing to make organization changes must also make instructional program changes.
Section 100.13(d)(2)(v) provides that allowable programs and activities for full-day kindergarten or prekindergarten programs include: (1) a minimum full school day program, (2) a minimum full school day program with additional hours for children and families, (3) a minimum full school day program with additional hours in collaboration with community based agencies (prekindergarten only), and (4) classroom integration programs for students with disabilities (specifically for full-day prekindergarten).
Section 100.13(d)(3) lists the following requirements for experimental programs, not included in the allowable programs and activities described above: (1) a maximum percentage of the contract amount that may be used for experimental programs, (2) a plan must be submitted to the Commissioner, (3) the program must be based on an established theoretical base supported by research or other comparable evidence, (4) the implementation plan for an experimental program must be accompanied by a program evaluation plan based on empirical evidence to assess the impact on student achievement, and (5) the experimental program shall be in partnership with an institution of higher education or other organization with extensive research experience and capacity.
Section 100.13(d)(3)(ii) states provides a maximum amount of up to $30 million dollars or twenty-five percent of the contract amount, whichever is less, that a district may use in the 2007–2008 school year to maintain existing programs and activities listed in Education Law section 211-d(3)(a).
Section 100.13(e) establishes criteria for the development of a school district's contract for excellence pursuant to a public process, in consultation with parents or persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c, which shall include at least one public hearing. Special provisions for the NYC school district's development of the contracts are included.
Section 100.13(f) establishes requirements to assure procedures are in place by which parents or persons in parental relation may bring complaints concerning implementation of a district's contract for excellence, including special provisions for the NYC school district.
Section 100.13(g) establishes requirements for the public reporting by school districts of their school-based expenditures of total foundation aid.
Section 170.12 (e)(1), relating to requirements of an annual audit of school district records, is amended to provide that the annual audit also include a certification by the accountant or, where applicable, the NYC comptroller, in a form prescribed by the Commissioner, that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes.
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 25, 2007.
Text of rule and any required statements and analyses may be obtained from:
Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Johanna Duncan-Poitier, Senior Deputy Commissioner of Education - P16, Education Department, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, (518) 474-3862, e-mail: p16education@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Board of 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 all public schools and the educational work of the State.
Education Law section 207 empowers 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.
Education Law section 215 provides the Commissioner with the authority to require schools and school districts to submit reports containing such information as the Commissioner shall prescribe.
Education Law section 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or any statute relating to education, and shall be responsible for executing all educational policies determined by the Regents.
Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, requires each school district: (1) that has at least one school currently identified as (i) requiring academic progress or (ii) in need of improvement or (iii) in corrective action or (iv) in restructuring; and (2) that receives an increase in either (i) total foundation aid compared to the base year in an amount that equals or exceeds either $15 million dollars or 10 percent of the amount received in the base year, whichever is less, or (ii) a supplemental educational improvement plan grant, to prepare a contract for excellence, which shall describe how the total foundation aid and supplemental educational improvement plan grants shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement. The statute requires the Commissioner to establish by regulation the allowable programs and activities for such purposes and to prescribe a format by which each affected school district shall publicly report its expenditures of total foundation aid.
LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the authority conferred by the above statutes and it is necessary to implement Chapter 57 of the Laws of 2007 by establishing criteria for allowable programs and activities, public reporting by school districts of their total foundation aid expenditures, and other requirements regarding contracts for excellence under Education Law section 211-d.
NEEDS AND BENEFITS:
The proposed rule is needed to implement the statutory requirements. The rule establishes systems and processes that provide for transparency, simplicity and accountability in the use of additional aid to districts with the greatest concentrations of students in need who are at the same time, experiencing the greatest obstacles to improving their students' achievement. Moreover, it ensures that districts and schools use new funding on one or more of the following six programs and activities: class size reduction, increased time on task, middle and high school restructuring, full day prekindergarten and kindergarten, teacher and principal quality initiatives and experimental programs.
Research has substantiated that there are strong empirical rationales for the proposed actions enacted under the rule with regard to allowable programs and activities and overall educational achievement. For example, the STAR project was a large scale, four-year experimental study of the effect of reduced class sizes on student achievement in the state of Tennessee. In the formal program evaluation after the intervention, “Carry-over Effects of Small Classes”, the research team of J.D Finn, B.D. Fulton, J.B. Zaharias, and B.A. Nye (the Peabody Journal, Vol. 67, No. 1, Fall 1989/1992) found that average pupil performance in the primary years can be increased significantly by reduced class size.
With regard to increased time on task, Aronson, Zimmerman and Carlos in their paper, “Improving Student Achievement by Extending School: Is It Just a Matter of Time?” (Office of Educational Research and Improvement, Washington, DC, 1998) found that time indeed does matter. Their paper reviews the research literature of at least three decades, on the relationship between time and learning. Time, they found, however, is no panacea: an increase in additional educational time only manifests itself in achievement gains when more time is used for instruction, particularly that material in which students are engaged.
The research literature examining the relationship between teacher quality and concomitant student achievement is very substantial. Rivers and Sanders' paper “Teacher Quality and Equity in Educational Opportunity: Findings and Policy Implications” (reprinted in Lance T. Izumi and Williamson Evers' Teacher Quality, Hoover Institution Press, 2002) is illustrative. Rivers and Sanders detail the results of their analysis of several years of individual teacher effects on Tennessee pupils. The authors found that differences in teacher ability are substantial. Their study also reveals that successful teachers can elicit significant gains from students of all ethnicities and income levels.
The research of Hayes Mizell and others is illustrative of the empirical rationale for the proposed rule requirement that grade change restructuring must be accompanied by instructional and/or content reforms. In his remarks as keynote speaker (titled “Still Crazy After All These Years: Grade Configuration and the Education of Young Adolescents”) in October 2004, at the annual conference of the National School Board Association's Council of Urban Boards of Education, Mizell pointed out that many school systems think that for example, a conversion to a K-8 school will solve all their problems. Accordingly, they make the mistake he argued, of not dealing with the difficult, substantive issues of how to engage students in challenging academic work while also providing them with the personal and academic supports necessary to increase their level of proficiency.
Finally, the proposed rule's rationale for the integration of disabled preschool children in full day prekindergarten and kindergarten allowable programs and activities is based on the research of such authors as Jenkins, Odoms and Speltz. In their paper, titled “Effects of Social Integration on Preschool Children with Handicaps” (Exceptional Children, Vol. 55, 1989), they detail the results of a randomly assigned experiment of the inclusion of children with mild and moderate disabilities in classes of non-disabled pupils. What they found was that structuring social interaction between lower and higher performing students can result in benefits to the lower-performing students, particularly in terms of language development.
COSTS:
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant, additional costs beyond those inherent in the statute.
a. Costs to State government:
None.
b. Costs to local governments:
The new requirements will result in additional costs to school districts, as follows:
(i) Sustained Professional Development
If it is assumed that there will need to be two extra days per year of sustained professional development for contract for excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, it is estimated that there might be a total annual cost for all of the districts of $400,000 per year (for purposes of this calculation, NYC was treated as thirty-four districts – one high school district, one special education district and thirty-two community school districts).
(ii) Other Costs
Depending on a district's selection of allowable programs and activities, it is possible that there will be additional costs. Particular activities where the cost imposed could be large include the following: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs must be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-base intervention; and analyzing, gathering and compiling the necessary research to support their proposed Contract for Excellence programs and activities. To estimate the total yearly costs associated with these items, it is estimated that each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $9,435,000.
c. Costs to private, regulated parties:
There are no anticipated additional costs to private, regulated parties.
d. Costs to the Education Department of implementation and continuing compliance:
It is anticipated that there may be additional costs to the State Education Department for implementation and continuing compliance, relating to the convening of an expert panel by the Commissioner to determine class size ranges. The cost for this will vary depending on the “formality” of the process. If a study by an outside consultant or firm were commissioned by the panel, for example, the anticipated expense might be in the tens of thousands of dollars. A less formal process might only have costs for travel and necessary supplies.
LOCAL GOVERNMENT MANDATES:
Consistent with Chapter 57 of the Laws of 2007, the proposed rule requires that each district so identified prepare a contract for excellence. Allowable programs must be accompanied by sustained professional development and additional instruction provided under such programs must come from appropriately certified or highly qualified teachers. In addition, any allowable programs and activities shall be coordinated with the district's comprehensive education (improvement) plan. Moreover, depending on the allowable programs and activities chosen, the proposed rule mandates or requires certain actions. For example, those districts choosing to use contract for excellence funding for allowable programs and activities related to middle and high school restructuring must also make instructional changes, in addition to any grade span restructuring they may engage in (such as the conversion of a building housing pupils in grades 7–9 to the creation of a 9th grade academy).
PAPERWORK:
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant reporting requirements beyond those inherent in the statute. School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
DUPLICATION:
The proposed rule will not duplicate, overlap or conflict with any other State or federal statute or regulation, and is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007.
ALTERNATIVES:
An alternative proposal which was considered was to create a fiscal and program accountability system similar to the comprehensive education plan (CEP) process for districts, not meeting their Adequate Yearly Progress (AYP) targets pursuant to the federal No Child left Behind Act. However, a CEP-like process, which would have required large and comprehensive data collection and paperwork requirements, was rejected as too cumbersome, time-intensive and not flexible enough, relative to the simpler, automated, web-based application and monitoring approach enacted by this proposed rule.
FEDERAL STANDARDS:
The proposed rule is necessary to implement Chapter 57 of the Laws of 2006, and does not exceed any minimum federal standards. There are no substantive federal standards that are applicable to this proposal insofar as there is no federal equivalent of the contract for excellence.
COMPLIANCE SCHEDULE:
The proposed rule is necessary to implement Chapter 57 of the Laws of 2007. The guidelines supplied by the NYS Education Department require school districts to file their 2007–2008 Contracts for Excellence by July 1, 2007. The Education Department will review and approve such contracts on or about August 1, 2007.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. The proposed rule 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 rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Governments:
EFFECT OF RULE:
The effects of the rule will be borne by local governments, specifically, school districts. The proposed rule applies to those (56) fifty-six school districts in the State that have been determined to meet the statutory requirements in Education Law section 211-d necessitating the submission of a contract for excellence.
COMPLIANCE REQUIREMENTS:
The proposed rule mandates these affirmative acts, not imposed by the authorizing statute, on allowable program activities:
(1) They must be consistent with federal and State statutes and regulations governing the education of students;
(2) They be developed by reference to practices supported by research or evidence as to what will facilitate student attainment of the State standards;
(3) They be accompanied by sustained professional development;
(4) Any additional instruction provided under such programs must come from appropriately certified or highly qualified teachers; and
(5) They must be coordinated with the district's comprehensive education (improvement) plan.
Furthermore, each of the six allowable programs and activities mandate and require certain affirmative acts in addition to or notwithstanding those requirements imposed by the authorizing statute.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
PROFESSIONAL SERVICES:
Depending on which allowable programs and activities are chosen, districts may be required to hire or procure experts in: teacher professional development, curriculum and/or instructional design, school improvement and other related tasks and professional functions.
COMPLIANCE COSTS:
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant, additional costs beyond those inherent in the statute.
The new requirements will result in additional costs to school districts, as follows:
(i) Sustained Professional Development
If it is assumed that there will need to be two extra days per year of sustained professional development for contract of excellence programs, for one to two dozen teachers per district at a cost of $125 per teacher per day, it is estimated that there might be a total annual cost for all of the districts of $400,000 per year (for purposes of this calculation, NYC was treated as thirty-four districts – one high school district, one special education district and thirty-two community school districts).
(ii) Other Costs
Depending on a district's selection of allowable programs and activities, it is possible that there will be additional costs. Particular activities where the cost imposed could be large include the following: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs must be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-based intervention; and analyzing, gathering and compiling the necessary research to support their proposed contract for excellence programs and activities. To approximate the total yearly costs associated with these items, it is estimated that each district (55 plus 34 for NYC (see above) for a total of 89 districts) hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $9,435,000 for all contract districts.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The economic and technological feasibility of compliance with the rule by local governments is made easier by the fact that the rule imposes very few compliance and no paperwork requirements that are not already imposed by the authorizing statute. Moreover, those reporting requirements imposed by the statute are made feasible by the fact that they are generally automated and web-based, using data entry screens and edit checks. In addition, nothing in the rule prohibits local governments from using funds to procure professional services, such as certified professional accountants, software developers or experts in curriculum and instruction, or education research, all of whom may be necessary to meet the rule's requirements.
MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement Chapter 57 of the Laws of 2007 and is applicable to all identified school districts throughout the State. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt school districts from coverage by the rule. Nevertheless, a substantial effort was made to involve school districts, including those located in rural areas, in the development of this rule, and to the extent possible, the proposed rule has been drafted incorporating their comments, to provide flexibility in implementing many of the provisions.
LOCAL GOVERNMENT PARTICIPATION:
Guidance memos to the regulated parties that are local governments – school districts and their component schools – were sent out from the Senior Deputy Commissioner for P-16 education of the State Education Department on April 4, and April 9, 2007. In these two documents, the Education Department sought the input, impact, questions and feedback of the proposed rule on districts as well as communicating in broad terms, how the contract would be implemented. Moreover, on April 12, 2007 districts were invited to meet with key Department stakeholders, including teleconferencing abilities for those district personnel unable to travel to Albany. In these memoranda, the Department communicated that staff in the Department's Office of School Operations and Management Services were available to respond to questions from 9 AM to 7:30 PM, from April 9–12. Copies of the proposed rule have also been provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment.
Rural Area Flexibility Analysis
TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
The proposed rule applies to the school districts in the State, so identified pursuant to Education Law section 211-d as having to file a contract for excellence, 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. Eight (8) of the school districts that will have to file contracts for excellence for the 2007–2008 school year are rural school districts.
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule mandates these affirmative acts, not imposed by the authorizing statute, on allowable programs and activities:
(1) They must be consistent with federal and State statutes and regulations governing the education of students;
(2) They be developed by reference to practices supported by research or evidence as to what will facilitate student attainment of the State standards;
(3) They be accompanied by sustained professional development
(4) Any additional instruction provided under such programs must come from appropriately certified or highly qualified teachers; and
(5) They must be coordinated with the district's comprehensive education (improvement) plan.
Depending on which allowable programs and activities are chosen, districts may be required to hire or procure experts in: teacher professional development, curriculum and/or instructional design, school improvement and other related tasks and professional functions.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
COSTS:
The rule is necessary to implement Chapter 57 of the Laws of 2007 and does not impose any significant, additional costs beyond those inherent in the statute.
The new requirements will result in additional costs to school districts, as follows:
(i) Sustained Professional Development
If it is assumed that there will need to be two extra days per year of sustained professional development for contract of excellence programs, for 4 teachers per district at a cost of $125 per teacher per day, it is estimated that there might be a total annual cost for all of the districts of $8,000 per year.
(ii) Other Costs
Depending on a district's selection of allowable program and activity choices, it is possible that there will be additional costs. Particular activities where the cost imposed could be large include the following: the requirement that additional instruction under any allowable program must be provided by appropriately certified or highly qualified teachers; that allowable programs must be coordinated with school district comprehensive plans; determining if a student responds to scientific, research-based intervention; and analyzing, gathering and compiling the necessary research to support their proposed contract for excellence programs and activities. To approximate the total yearly costs associated with these items, it is estimated that each of the eight rural districts hires two new, appropriately certified teachers at an annual cost of $53,000 per teacher (salary plus benefits). This yields a total estimated, annual cost of $848,000 for all of the eight districts.
MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement Chapter 57 of the Laws of 2007 and is applicable to all identified school districts throughout the State. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt school districts in rural areas from coverage by the rule. Nevertheless, a substantial effort was made to involve school districts, including rural districts, in the development of this rule, and to the extent possible, the proposed rule has been drafted incorporating their comments, to provide flexibility in implementing many of the provisions.
RURAL AREA PARTICIPATION:
The proposed rule was submitted for discussion and comment to the Department's Rural Education Advisory Committee that includes representatives of school districts in rural areas as well as the Rural Schools Association. In addition, guidance memos dated April 4 and April 9, 2007 were provided to the field outlining changes in the law and providing a working draft outline of the contracts. School districts that are required to file a contract for excellence were also invited to participate in either the teleconference/meeting held on April 12th or a teleconference held on April 13th (Big 5 School districts only). During the period from April 9–12, the Education Department offered extended phone hours to provide further opportunity for comments and questions.
Job Impact Statement
The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the rule 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.
