PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Revised action:
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, part A, section 12, and L. 2008, ch. 58, part A, section 2
Subject:
Contracts for excellence.
Purpose:
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.
Substance of revised rule:
The State Education Department proposes to add a new section 100.13 and amend sections 170.12 of the Commissioner's Regulations, effective August 21, 2008. The rule is necessary to implement Education Law section 211-d, regarding contracts for excellence.
The proposed amendment was adopted as an emergency measure at the April Regents 2007 meeting, revised and readopted as an emergency rule at the June and July Regents meetings, readopted as an emergency action at the September and October 2007 and January 2008 Regents meetings, and revised and readopted as an emergency action at the March 2008 Regents meeting.
Further revisions are proposed to the rule as set forth in the Revised Regulatory Impact Statement submitted herewith. A summary of the revised rule follows.
Section 100.13(a) defines: (1) total foundation aid; (2) supplemental educational improvement plan grant; (3) contract amount; (4) base year; (5) experimental programs; (6) highly qualified teacher; (7) response to intervention program and (8) students with low academic achievement.
Section 100.13(b) provides that each contract shall be prepared pursuant to the requirements of subdivision (d), shall be in a format, and submitted pursuant to a timeline, prescribed by the Commissioner and shall:
(1) describe how the contract amount shall be used to support new programs and new activities or expand 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(c); and specify how the contract amount will be distributed in accordance with 100.13(b)(3);
(2) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to section 100.13(c), 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 (LEP) students and students who are English language learners (ELL), (b) students in poverty, (c) students with disabilities, and (d) students with low academic achievement;
(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 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 NYC school district, 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 NYC school district and include continuous class size reduction for low performing and overcrowded schools beginning in the 2007–2008 school year and thereafter and 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, 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 prescribed by the Commissioner after consideration of the recommendation of an expert panel appointed to review class size research.
Paragraph (3) of section 100.13(b) prescribes requirements for the use of contract for excellence funds.
The Commissioner shall approve each contract meeting the provisions of section 100.13 and certify, for each contract, that the expenditure of additional aid or grant amounts is in accordance with Education Law section 211-d(2). Approval shall be given to contracts demonstrating to the Commissioner's satisfaction that the allowable programs selected:
(i) predominately benefit students with the greatest educational needs;
(ii) predominately benefit students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools; and
(iii) are based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards.
Section 100.13(c) establishes the allowable programs and activities, including experimental programs. Section 100.13(c)(1) establishes general requirements, including that such programs and activities: (1) predominately benefit students with the greatest educational needs including, but not limited to: LEP and ELL students, students in poverty, students with disabilities, and students with low academic achievement; (2) predominately benefit students in schools identified as requiring academic progress, in need of improvement, in corrective action, or restructuring and address the most serious academic problems in those schools; (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 as part of the district's comprehensive educational plan.
Section 100.13(c)(2) establishes criteria for specific allowable programs and activities, which shall include: (1) class size reduction for (a) the NYC school district 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(c)(2)(i) establishes requirements for class size reduction, including special provisions for NYC. NYC 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 the expert panel appointed by the Commissioner. Districts outside of NYC 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 the expert panel. The rule also mandates NYC give priority 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 NYC, by other methods to reduce the student to teacher ratio, as approved by the Commissioner.
Section 100.13(c)(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(c)(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 an appropriately certified, or highly qualified teacher where required under section 120.6, is in every classroom and an appropriately certified principal is assigned to every school.
Section 100.13(c)(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 districts choosing to make organization changes must also make instructional program changes.
Section 100.13(c)(2)(v) is added to provide that allowable programs and activities for model programs for student with limited English proficiency include: (1) programs serving limited English proficiency students to address their learning needs by providing education in their native language, provide targeted programs to student who have resided in the United State for 7 years or longer and who are below grade level in reading, writing and other targeted areas, and provide support services to students transitioning into mainstream educational settings; (2) native language support; (3) new immigrant programs; (4) recruitment and retention programs for bilingual teachers and personnel staff; and (5) parent involvement programs.
Section 100.13(c)(2)(vi) 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(c)(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 may be in partnership with an institution of higher education or other organization with extensive research experience and capacity.
Section 100.13(c)(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 districts 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(d) establishes criteria for the development of the 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 NYC's development of the contracts are included.
Section 100.13(e) establishes requirements to assure procedures are in place by which parents may bring complaints concerning implementation of a district's contract for excellence, including special provisions for the NYC.
Section 100.13(f) establishes requirements for the public reporting by 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, for schools required to prepare a contract for excellence pursuant to Education Law section 211-d, the annual audit for the year such contract is in effect shall 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.
Revised rule compared with proposed rule:
Substantial revisions were made in section 100.13(b), (c), (d) and (e).
Revised rule making(s) were previously published in the State Register on:
August 8, 2007, August 15, 2007, March 5, 2008.
Text of revised proposed 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:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the proposed rule was revised as follows:
The term “contract amount” was replaced throughout the regulation with “annual contract amount.”
Subdivision (b), regarding applicability provisions, was deleted and the subsequent subdivisions relettered. In lieu of such provisions, a reference to Education Law section 211-d was added in relettered subdivision (b) [formerly (c)].
100.13(b)(2) was revised to clarify that the commissioner shall approve each contract meeting the provisions of section 100.13 rather than 100.13(b).
100.13(b)(4) was revised to provide that each school district shall post a proposed amended contract on its website within 48 hours of submission to the commissioner for approval.
100.13(c)(2)(i)(a)(1)(ii) was revised to clarify that New York City shall provide class size reduction baseline data for the respective immediately preceding school years for the 2007–2008 school year and continuing for each school year thereafter up to and including the 2011–2012 school year.
A new section 100.13(c)(v) was added, and existing subparagraph (v) relettered to (v), to establish criteria for allowable programs and services for model programs for students with limited English proficiency, pursuant to Education Law section 211-d (3), as amended by Chapter 57 of the Laws of 2008.
Section 100.13(d)(2)(ii)(b) was revised to require school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.
100.13(d)(2)(iii)(b) was revised to require each school district to prepare a public comment assessment not later than 12 days after expiration of the public comment period or conclusion of public hearings, which occurs later.
100.13(d)(2)(iv) was added to provide that a school district shall not submit its contract to the commissioner for approval until after the 30-day public comment period has ended, all public hearings have been conducted, the public comment record has been prepared, and the public comment assessment has been prepared and posted on a school district website. Each school district shall post a copy of its contract for excellence on its website within 48 hours of submission of the contract to the Commissioner for approval.
100.13(e)(2)(ii)(c) was revised to require school districts to make copies of the complaint notice and complaint form available in schools and school district offices.
The above revisions require the following sections of the Regulatory Impact Statement be revised as follows:
LOCAL GOVERNMENT MANDATES
Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.
Each school district shall post its contract for excellence, and any amended contract, on its website within 48 hours of submission to the commissioner for approval.
School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. The rule requires school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form and instructions for use.
Districts shall provide reasonable notice to parents of students or persons in parental relation to students of the procedures for bringing a complaint concerning implementation of the contract for excellence, and provide translations of the complaint form and procedures into the languages other than English most commonly spoken in the district.
Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website, and make them available in schools and school district offices. Districts may use additional methods to provide notice, including providing copies in district mailings and distributions.
PAPERWORK
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
Notice of the written public comment period and public hearing shall include:
(1) a general description of the contract;
(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;
(3) information where to obtain a copy of the proposed contract; and
(4) a description of the public comment process and public hearing process.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
The rule requires school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form and instructions for its use, including the locations and deadline for filing, and provide reasonable notice to parents or persons in parental relation, of the procedures for bringing a complaint concerning implementation of the district's contract.
Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district, and shall post, and make available in schools and school district offices, its notice of complaint procedures and complaint form on a district website, and may use additional methods to provide notice.
The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.
Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.
Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, written notice shall be provided the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.
In addition, the following paragraph is added to the Statutory Authority section: Section 2 of Part A of Chapter 57 of the Laws of 2008 amended Education Law section 211-d to revise the criteria for determining which school districts are required to prepare a contract for excellence, and to add model programs for students with limited English proficiency as a sixth category of allowable programs and services.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule require that the following sections of the previously published Regulatory Flexibility Analysis be revised as follows.
COMPLIANCE REQUIREMENTS
Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
Each school district shall post its contract for excellence, and any amended contract, on its website within 48 hours of submission to the commissioner for approval.
School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c.
Notice of the written public comment period and public hearing shall include:
(1) a general description of the contract;
(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;
(3) information where to obtain a copy of the proposed contract; and
(4) a description of the public comment process and public hearing process.
The rule requires school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form for complaints concerning implementation of the contract for excellence, and instructions for its use, including the locations and deadline for filing. Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district, and shall post, and make available in schools and school district offices, its notice of complaint procedures and complaint form on a district website, and may use additional methods to provide notice.
Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website, and make them available in schools and school district offices. Districts may use additional methods to provide notice, including providing copies in district mailings and distributions.
The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.
Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.
Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, written notice shall be provided the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The above revisions to the proposed rule require that the following sections of the previously published Rural Area Flexibility Analysis be revised as follows:
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
Each district identified in the statute must prepare a contract for excellence pursuant to the rule's provisions. Depending on the allowable programs and activities chosen, the rule mandates or requires certain actions.
School districts will submit their contracts to the Commissioner for approval, using an automated, web-based application.
Each school district shall post its contract for excellence, and any amended contract, on its website within 48 hours of submission to the commissioner for approval.
School districts must establish a 30-day period for receipt of written public comment, and procedures for the conduct of public hearings on their proposed contracts, and provide reasonable notice to parents and persons in parental relation, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c.
Notice of the written public comment period and public hearing shall include:
(1) a general description of the contract;
(2) a detailed description of proposed allocations, on a school level, by program area, including details concerning proposed program additions and/or enhancements, by student achievement performance targets, and by affected student population groupings, including students with limited English proficiency and students who are English language learners, students in poverty, students with disabilities; and students with low academic achievement;
(3) information where to obtain a copy of the proposed contract; and
(4) a description of the public comment process and public hearing process.
The rule requires school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party.
Districts shall provide translations of the notices into languages other than English most commonly spoken in the district.
Districts shall prepare, and make available upon request, a record of public comment received. Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each district shall prepare a public comment assessment containing a summary of the substance of the comments received, grouped by subject matter, and the district's response to each substantive comment, including a statement of any changes made to the contract as a result of such comment, or an explanation why the comment's suggestions were not incorporated into the contract. The public comment assessment shall be posted on a district website and made available upon request.
Districts shall develop a complaint form for complaints concerning implementation of the contract for excellence, and instructions for its use, including the locations and deadline for filing. Districts shall provide translations of the form and notice into languages other than English most commonly spoken in the district, and shall post, and make available in schools and school district offices, its notice of complaint procedures and complaint form on a district website, and may use additional methods to provide notice.
Each district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a district website, and make them available in schools and school district offices. Districts may use additional methods to provide notice, including providing copies in district mailings and distributions.
The building principal, community superintendent or superintendent, as applicable shall notify the complainant in writing of his or her complaint determination, including the basis for such determination within 30 days from the date of receipt of the complaint, and an explanation of appeal procedures.
Upon appeal, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of the appeal determination, including the basis for such determination, and an explanation of the appeal procedures.
Upon appeal of the complaint determination, or an appeal determination of a superintendent or community superintendent, to the trustees/board of education or chancellor, written notice shall be provided the appeal determination, the basis for the determination, and a statement that the determination may be appealed to the Commissioner pursuant to Education Law section 310.
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.
Job Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The proposed rule, as so revised, is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007 and amended by Chapter 57 of the Laws of 2008, 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 revised rule 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.
Summary of Assessment of Public Comment
Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the State Education Department (SED) received substantial public comment. A summary of the public comment follows:
I. Public Participation/Public Process
1. In response to comment to allow all interested parties to participate in the public process for development of Contracts for Excellence and require public hearings be held pursuant to Open Meetings Law requirements, section 100.13(e)(2)(ii)(b) was revised to require school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require districts to provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party including, but not limited to, parents and persons in parental relation to students, teachers, administrators and distinguished educators. However, the provisions in 100.13(e)(2)(i) relate to the consultation process for development of contracts for excellence, and statute restricts participation in such instance to parents and persons in parental relation to students, teachers, administrators and distinguished educators. Therefore, no changes have been made to such provisions.
2. In response to comment to require that contracts submitted to the commissioner for approval be made publicly available, section 100.13(d)(2)(iv)(a) has been added to require each school district to post its contract on the district's website, within 48 hours of submission to the Commissioner.
3. In response to a comment that the Commissioner should review district's public process to ensure compliance with 100.13(d) before approving their contract, section 100.13(b)(2) has been revised to clarify that the Commissioner's approval will be based upon the contract meeting the provisions of the entire section 100.13, which would include the public process provisions. In addition, this will be incorporated into the superintendent's certification statement on the on-line Contracts for Excellence system.
4. In response to comment to require any amendment resulting in a reallocation of resources of greater than 5% be subject to public comment requiring a 15 day notice and a 15 day comment period, section 100.13(b)(4)(iii) has been added to require the amended contract be posted on a district website within 48 hours of submission. In addition, SED notes the amended contract would be subject to the complaint process.
Additional comments were determined to require revisions to statute before regulations could be adopted. These include: (1) allow NYC county level public hearings to incorporate the community district education council public meeting; (2) require all complaints be initiated with filing with community superintendent; and (3) extend NYC public comment process to school districts in rest of State.
Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) require transcripts of public hearing comments be posted on district's website, (2) require consultation with professional educators, community-based organizations, education experts, bilingual and special education coordinators; (3) public hearings and meeting be accessible to those with limited English proficiency; (4) require districts to record persons making comments and include in public comment assessment; (5) provide in NYC, a public hearing shall be held within each county of the city, a transcript be included when contract is submitted to commissioner, and that each community district contract be submitted by community superintendent to community school district education council for review at a public meeting; (6) regulation doesn't provide for public process to develop contracts; (7) delete requirement that school district must respond to all substantive comments; and (8) school districts should provide public comment assessment and public hearing transcript when they submit contracts to commissioner.
II. Complaint procedures
1. In response to comment to require school districts to make complaint forms available in other forms than just on the school district website, section 100.13(e)(2)(ii)(c) has been revised to require districts to make copies of the complaint notice and complaint form available in schools and district offices.
One comment requests provision be added that no reprisal of any kind may be taken by a school district or any employee of a school district against any person bringing a complaint under this procedure. While SED agrees that no reprisals may be taken, remedies exist elsewhere in the law and it is not necessary to include this provision in the regulations.
Some comments require a revision to statutes, including: (1) allowing individual students and staff and representative organizations to bring complaints concerning district's implementation of the contract; (2) provide for expedited appeal procedure directly to Commissioner; (3) clarify that use or availability of the procedures provided in regulation shall not be construed as limiting exercise of any of the rights or remedies available to any person under state or federal law.
Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation sufficient to address the comments' concerns, or disagreed with the comments. These include: (1) complaint form and complaint process too complicated and burdensome for parents; (2) require consultation with parent and community organizations when developing complaint form; (3) allow complaints to be brought at any time during school year of contract; (4) require school district to provide written response if it fails to investigate and respond to complaint; (5) require school district to publicly report complaint resolutions; (6) specify criteria for when notice is deemed reasonable; and (7) require notice of public comment include information about contract planning and approval process;.
III. Class Size Reduction
1. In response to comment that public needs better information on the number of additional teachers hired and additional classes formed to lower class size, and to what levels class sizes have been reduced as a result, SED agrees and will study this with the Commissioner's class size panel.
2. In response to comment that data on number of classes, average class size and number of classroom teachers be provided for baseline year and each year thereafter, section 100.13(c)(2)(i)(a)(1)(ii) has been revised to provide for such data for the 2007–2008 school year and continuing for each school year thereafter up to and including the 2011–2012 school year.
3. In response to comment that NYC should report staffing of classroom teachers in core instructional course, SED notes this recommendation can be considered in Commissioner's class size panel's deliberations
4. In response to comment that NYC be required to maintain effort despite budget cuts, SED notes that pursuant to recent amendment of Education Law § 211-d, all contract districts are required under the 2008–2009 application system to maintain base year contract amount of expenditures, allowing for reallocation to other approval program areas.
Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) parents should be allowed to comment on class size reduction plan; and (2) capital plan should be aligned with class size reduction plan; and (3) hold NYC to class size standards at beginning of school year.
IV. English Language Learners (ELL)
1. In response to comment to require district and school level expenditure projections/reports to outline the amount of funds serving ELL's, as well as data on students served, teachers/staff hired, programs established or expanded, class size reductions and focused professional development hours, SED notes these comments will be taken into account as options are developed for ELL allowable programs.
2. In response to comment to expand allowable activities under the existing five contract program areas, to include ELL-focused strategies: more teachers; teacher recruitment/retention; professional development; extended school day, Saturday academy and Summer School; books and learning resources in various languages; students with interrupted formal education intervention and instruction; develop appropriate tests and monitor instruction and assessment implementations; guidance, mentoring and social support services for immigrant/ELL youth; high school readiness and dropout prevention; immigration/LEP parent engagement and leadership training, SED notes that consistent with recent amendment to Education Law section 211-d, the regulation has been revised to add a sixth category of allowable programs and services to provide for model programs for students with limited English proficiency, Including programs serving limited English proficient students, native language support, new immigrant programs, recruitment and retention of bilingual general education and special education teachers, English as a Second Language teachers, bilingual teachers of students with speech and language disabilities, and bilingual pupil personnel staff, and parent involvement.
Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) establish separate “predominately benefit” ELL benchmark; and (2) add ELL students who have not achieved sufficient scores on the limited English proficiency test to the definition of “students with low academic achievement.”
V. Contract Approval and Amendment
1. In response to comment that limiting contract funds to five allowable programs limits districts' ability to continue systemic reform, SED notes that, consistent with the recent amendment to Education Law § 211-d, the regulation has been revised to provide for a sixth allowable program for LEP model programs. Any additional programs would require statutory change.
2. In response to comment that SED's approval needed for any district's reallocation of last year's contract funds to an allowable program, SED agrees and notes this is being incorporated into the 2008–2009 application system.
Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) amendment process be more flexible and clarify amendment provisions; and (2) provide for 30-day public comment period once contracts are submitted to commissioner; and (3) specify date for SED contract approval notification.
VI. Allocation, Targeting and Maintenance of Effort
1. In response to comment to clarify “contract amount” to provide for second year contract for excellence requirements enacted by recent amendments to Education Law § 211-d, SED notes proposed rule will be revised to refer to annual contract amount.
2. In response to comment that performance or achievement goals are not enough, and that there needs to be measures of inputs as well, SED agrees and notes this has been incorporated in the web-based reporting system consistent with statutory requirements.
3. In response to comment to revise applicability provisions to also include schools that are below the school district (or State) average on the ELA and Math assessment or the 4-year graduation rate, SED notes regulation has been revised in response to recent amendments to Education Law § 211-d to delete specific applicability provisions in the regulation, and instead reference the statute for purposes of determining applicability.
4. In response to comment to allow schools to target funds to predominately benefit students having the greatest educational needs who are enrolled in schools identified under section 100.2(p) and not only to students enrolled in SURR schools, SED agrees and notes that the reference to SURR schools was just an example of acceptable strategies, and does not preclude others.
A comment that cap for maintenance of existing programs be changed to 25% for all districts, would require a statutory change.
Other comments were deemed to not require changes to the regulations, because SED deemed the existing regulation provisions to be sufficient to address the comments concerns, or disagreed with comments. These include: (1) that large city school districts outside NYC should be allowed to use funds for district-wide initiatives; (2) provide that schools in improvement status shall receive at least pro rata share based on share of actual high need, low-performing students, instead of share of total district need; (3) include contract terms in each school's comprehensive education plan; and (4) regulation's lack of specificity resulted in non-uniform response from districts and in may cases lacked transparency.
