Specific reasons underlying the finding of necessity:
The purpose of the proposed amendment is to clarify procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity.
The proposed amendment was adopted as an emergency rule at the March Regents meeting, effective March 12, 2013. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on March 27, 2013.
Because the Board of Regents meets at fixed intervals, the earliest the proposed amendment can be presented for permanent adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the June 17-18, 2013 Regents meeting. Furthermore, pursuant to SAPA, the earliest effective date of the proposed amendment, if adopted at the June meeting, would be July 3, 2013, the date a Notice of Adoption would be published in the State Register. However, the March emergency rule will expire on June 9, 2013, 90 days from its filing with the Department of State on March 12, 2013. A lapse in the effective date of the rule may disrupt procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity.
Emergency action is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the March 11-12, 2013 Regents meeting remains continuously in effect until the effective date of its permanent adoption, and thereby avoid any potential disruption in the procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity.
It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption on a permanent basis at the June 17-18, 2013 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by SAPA.
Subject:
Charter school charter renewals.
Purpose:
To clarify standards for charter renewals of charter schools for which the Board of Regents is the authorizing entity.
Text of emergency rule:
Section 119.7 of the Regulations of the Commissioner of Education is added, effective June 10, 2013, as follows:
119.7 Renewal of Charters.
(a) Applicability. The provisions of this section shall apply to applications for the renewal of a charter pursuant to Education Law section 2851(4) that are submitted by charter schools for which the Board of Regents is the charter entity.
(b) Charter school obligations.
(1) The board of trustees of the charter school shall submit an application for charter renewal to the Board of Regents in a format and pursuant to a timeline prescribed by the Commissioner, consistent with Education Law section 2851(4).
(2) The board of trustees shall also submit such additional material or information as may be requested by the State Education Department.
(3) Where applicable, the charter school shall comply with the notification and submission requirements in subparagraph (d)(3) of this section.
(c) Department obligations.
(1) Notification of renewal application. Pursuant to Education Law section 2857(1), the State Education Department shall provide notification of receipt of an application for charter renewal and consider comments received concerning such application, consistent with Education Law section 2857(1).
(2) Renewal Site Visit and Report. The Department may, in its discretion, conduct or cause to be conducted a renewal site visit to the charter school for purposes of obtaining information relevant to the renewal of such school's charter and prepare a renewal site visit report, consistent with guidelines established by the Department.
(3) Renewal Recommendation.
(i) The Department shall prepare and submit to the Board of Regents a renewal recommendation which shall be based upon application of the performance benchmarks pursuant to subdivision (e) of this section. In making this renewal recommendation, the Department shall consider evidence and data gathered about the charter school, including, but not limited to, the following:
(a) information in the renewal application submitted pursuant to paragraph (b)(1) of this section;
(b) any additional material or information submitted by the charter School pursuant to paragraph (b)(2) of this section;
(c) any information relating to the site visit and the site visit report, if any, pursuant to paragraph (c)(2) of this section;
(d) the charter school’s annual reporting results including, but not limited to, student academic achievement; and
(e) any other information that the Department, in its discretion, determines is relevant to whether the charter should be renewed, including, but not limited to, information related to whether renewal should be denied to protect the interests of students, families and the public including, but not limited to, instances involving criminal violations, fraud, unsafe environment, organizational stability or other serious or egregious violations of law or of the school’s charter.
(ii) Notification of recommendation. The Department shall notify the charter school of the Department's renewal recommendation. In the event that the recommendation is to not renew the charter school’s charter, the charter school shall be provided with written notification of such recommendation and the reasons for the recommendation, and shall be given an opportunity to submit, within thirty days of its receipt of such written notification, a written response to such recommendation. Any such written response may include supporting affidavits, exhibits and other documentary evidence and may also include a written legal argument.
(d) Board of Regents procedures.
(1) Board of Regents determination.
(i) The decision concerning whether to approve a charter renewal application shall be wholly within the discretion of the Board of Regents, and shall be based on whether the Board can make the relevant findings specified in Education Law section 2852(2) for the approval of such an application.
(ii) The Board of Regents shall consider the following when making a decision concerning whether to approve a charter renewal application:
(a) the information in the renewal application submitted pursuant to paragraph (b)(1) of this section;
(b) any additional material or information submitted by the charter school pursuant to subparagraph (b)(2) of this section;
(c) comments received pursuant to Education Law section 2857(1), as provided for in paragraph (c)(1) of this section;
(d) any information relating to the site visit and the site visit report, if any, pursuant to paragraph (c)(2) of this section;
(e) the charter school’s annual reporting results including, but not limited to, student academic achievement;
(f) the Department's renewal recommendation pursuant to paragraph (c)(3) of this section and the charter school's written response, if any, pursuant to subparagraph (c)(3)(ii) of this section; and
(g) any other information that the Board, in its discretion, may deem relevant to its determination whether the charter should be renewed, including, but not limited to, information related to whether renewal should be denied to protect the interests of students, families and the public including, but not limited to, instances involving criminal violations, fraud, unsafe environment, organizational stability or other serious or egregious violations of law or of the school’s charter.
(iii) In making its decision concerning whether to approve a charter renewal application, the Board of Regents shall consider the totality of the evidence presented in each case, and may accept or reject, in whole or in part, the Department's renewal recommendation, provided however that nothing in this subparagraph shall be construed as prohibiting the Board of Regents from weighing any one factor more heavily than another.
(iv) The decision of the Board of Regents with respect to whether to approve a renewal application shall be final.
(2) Renewal outcomes.
(i) The Board of Regents in its sole discretion may:
(a) renew a charter for a maximum term of five years;
(b) renew the charter for a term of less than five years; or
(c) deny renewal of the charter.
(ii) When deciding whether to grant a renewal application and/or for how long to renew a school’s charter, the charter school’s student academic achievement shall be considered of paramount importance by the Board of Regents. Furthermore, for all renewals subsequent to a first renewal, a charter school's student academic achievement shall be given greater weight than for a first renewal.
(3) In the event that the Department's renewal recommendation recommends that the Regents grant a renewal application, but the Board of Regents decides to reject such recommendation and deny renewal of a charter, the charter school shall be provided with written notification of such decision and the reasons for the decision, and shall be given an opportunity to submit a written response to such decision and request that the Board of Regents reconsider its action. If the charter school chooses to submit a written response, the charter school shall, within five days of receipt of the Department's notification, notify the Department in writing of its intent to submit a written response, and shall submit such written response within thirty days of receipt of the Department's notification. Any such written response may include supporting affidavits, exhibits and other documentary evidence and may also include a written legal argument. The Department shall submit any such submission to the Board of Regents for reconsideration. Following receipt of such submission, the Board of Regents shall reconsider the charter school’s renewal application, provided that nothing in this paragraph shall be construed to require more than one reconsideration.
(e) Performance benchmarks. Each renewal charter for a charter school authorized by the Board of Regents shall include the performance benchmarks set forth in the Charter School Performance Framework, as issued by the Department, as part of the oversight plan in the charter school's charter agreement. For each such renewal charter, the analysis of qualitative and quantitative data and evidence concerning a charter school's performance, for purposes of the Department's renewal recommendation pursuant to paragraph (c)(3) of this section, shall be based on the charter school's achievement in each of the performance benchmarks set forth in the Charter School Performance Framework; provided that the charter school's performance under student academic achievement, as set forth in Benchmark 1: Student Performance shall be paramount when determining to renew a school's charter.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-13-13-00005-EP, Issue of March 27, 2013. The emergency rule will expire August 8, 2013.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
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 public schools and the educational work of the State.
Education Law section 207 empowers the Regents and Commissioner to adopt rules and regulations to carry out the State laws regarding education and the functions and duties conferred on the Department.
Education Law section 305(1) provides that the Commissioner is the chief executive officer of the State system of education and of the Board of Regents, and charged with the enforcement of all general and special laws relating to the educational system of the State and the execution of all educational policies determined by Regents. Section 305(2) provides that the Commissioner shall have general supervision over all schools and institutions subject to the Education Law or any statute relating to education. Section 305(20) provides that the Commissioner shall have and execute such further powers and duties as he shall be charged with by the Regents.
Education Law section 2851(4), prescribes requirements for the renewal of charter school charters in accordance with the provisions of Article 56 of the Education Law pursuant to Education Law section 2852.
Education Law section 2857(1) provides that at each significant stage of the chartering process the charter entity and the Board of Regents shall provide appropriate notification to the school district in which the charter school is located and to public and nonpublic schools in the same geographic area as the charter school. Prior to the issuance, revision, or renewal of a charter, the school district in which the charter school is located shall hold a public hearing to solicit comments from the community in connection with the foregoing. Such hearing must be held in the community potentially impacted by the proposed charter school. When a revision involves the relocation of a charter school to a different school district, the proposed new school district shall also hold such hearing. In addition, the school district shall be given an opportunity to comment on the proposed charter to the charter entity.
LEGISLATIVE OBJECTIVES:
Consistent with the statutory authority set forth above, the proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity.
NEEDS AND BENEFITS:
In November 2012, the Board of Regents approved a Charter School Renewal Policy and endorsed a Performance Framework, which outlines the performance benchmarks by which charter schools will be evaluated by Department Staff when they apply for renewal. Taken together, these two documents were intended to provide a roadmap for the renewal process for charter schools authorized by the Regents and ensure that all interested and impacted parties are informed at the outset of the process of the benchmarks by which a renewal application will be judged and the policy underpinnings of charter renewal decisions. Consistent with the terms of the Department’s $113 million federal Charter Schools Program (CSP) multi-year grant, improvement in student academic achievement is the most important factor that will be considered by the Regents when determining whether to renew or revoke a school’s charter.
The proposed amendment applies to applications for the renewal of a charter pursuant to Education Law section 2851(4) that are submitted by charter schools for which the Board of Regents is the charter entity. The proposed amendment, which is consistent with the Performance Framework endorsed by the Regents, makes the charter school renewal process more transparent by adopting a comprehensive regulation that embodies the guidelines for the renewal process and policies. In addition to clarifying the Board’s previous Charter School Renewal Policy, the proposed amendment requires that renewal charters include the performance benchmarks prescribed pursuant to the regulation. The end result is a roadmap for the renewal process for charter schools authorized by the Regents that clearly sets forth the roles, responsibilities and obligations of all the parties in the charter renewal process: the charter school’s board of trustees, the Department, and the Board of Regents. The proposed amendment also outlines the possible charter renewal outcomes, and specifies that such outcomes are within the sole discretion of the Board of Regents.
COSTS:
(a) Costs to State government: none.
(b) Costs to local government: none.
(c) Cost to private regulated parties: none.
(d) Cost to regulating agency for implementation and continued administration of this rule: none.
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity and does not impose any additional costs on the State, local government, private regulated parties or the State Education Department, as regulating agency.
LOCAL GOVERNMENT MANDATES:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity and will not impose any additional program, service, duty or responsibility upon local governments.
PAPERWORK:
The board of trustees of a charter school shall submit an application for charter renewal to the Board of Regents in a format and pursuant to a timeline prescribed by the Commissioner, consistent with Education Law section 2851(4). The board of trustees shall also submit such additional material or information as may be requested by the State Education Department.
In the event that the Department's renewal recommendation recommends that the Regents grant a renewal application, but the Board of Regents decides to reject such recommendation and deny renewal of a charter, the charter school shall be provided with written notification of such decision and the reasons for the decision, and shall be given an opportunity to submit a written response to such decision and request that the Board of Regents reconsider its action. If the charter school chooses to submit a written response, the charter school shall, within five days of receipt of the Department's notification, notify the Department in writing of its intent to submit a written response, and shall submit such written response within thirty days of receipt of the Department's notification. Any such written response may include supporting affidavits, exhibits and other documentary evidence and may also include a written legal argument.
DUPLICATION:
The proposed amendment does not duplicate any existing State or Federal requirements.
ALTERNATIVES:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity. There are no significant alternatives and none were considered.
FEDERAL STANDARDS:
There are no applicable Federal standards.
COMPLIANCE SCHEDULE:
It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity, and does not impose any economic impact, or other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Governments:
EFFECT OF RULE:
The proposed amendment applies to all charter schools in the State for which the Board of Regents is the charter entity. There are currently 41 charter schools open for instruction in the 2012-13 school year for which the Board of Regents is the charter entity; an additional 14 such charter schools are scheduled to open in 2013-14 or later.
COMPLIANCE REQUIREMENTS:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity, and will not impose any additional reporting, recordkeeping or other compliance requirements on school districts or charter schools.
The board of trustees of a charter school shall submit an application for charter renewal to the Board of Regents in a format and pursuant to a timeline prescribed by the Commissioner, consistent with Education Law section 2851(4). The board of trustees shall also submit such additional material or information as may be requested by the State Education Department.
In the event that the Department's renewal recommendation recommends that the Regents grant a renewal application, but the Board of Regents decides to reject such recommendation and deny renewal of a charter, the charter school shall be provided with written notification of such decision and the reasons for the decision, and shall be given an opportunity to submit a written response to such decision and request that the Board of Regents reconsider its action. If the charter school chooses to submit a written response, the charter school shall, within five days of receipt of the Department's notification, notify the Department in writing of its intent to submit a written response, and shall submit such written response within thirty days of receipt of the Department's notification. Any such written response may include supporting affidavits, exhibits and other documentary evidence and may also include a written legal argument.
PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional services requirements on school districts or charter schools.
COMPLIANCE COSTS:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity and does not impose any additional costs on the State, local government, private regulated parties or the State Education Department, as regulating agency.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any additional compliance costs or technological requirements on school districts or charter schools.
MINIMIZING ADVERSE IMPACT:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity, and will not impose any additional reporting, recordkeeping or other compliance requirements, or costs, on school districts or charter schools.
LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to charter schools and to the chief school officers of the five big city school districts.
Rural Area Flexibility Analysis
TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment applies to all charter schools in the State for which the Board of Regents is the charter entity. None of such charter schools are located in the 44 rural counties with less than 200,000 inhabitants or the 71 towns in urban counties with a population density of 150 per square mile or less.
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity, and will not impose any additional reporting, recordkeeping or other compliance requirements on school districts or charter schools.
The board of trustees of a charter school shall submit an application for charter renewal to the Board of Regents in a format and pursuant to a timeline prescribed by the Commissioner, consistent with Education Law section 2851(4). The board of trustees shall also submit such additional material or information as may be requested by the State Education Department.
In the event that the Department's renewal recommendation recommends that the Regents grant a renewal application, but the Board of Regents decides to reject such recommendation and deny renewal of a charter, the charter school shall be provided with written notification of such decision and the reasons for the decision, and shall be given an opportunity to submit a written response to such decision and request that the Board of Regents reconsider its action. If the charter school chooses to submit a written response, the charter school shall, within five days of receipt of the Department's notification, notify the Department in writing of its intent to submit a written response, and shall submit such written response within thirty days of receipt of the Department's notification. Any such written response may include supporting affidavits, exhibits and other documentary evidence and may also include a written legal argument.
The proposed amendment does not impose any additional professional services requirements on school districts or charter schools in rural areas.
COSTS:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity and does not impose any additional costs on the State, local government, private regulated parties or the State Education Department, as regulating agency.
MINIMIZING ADVERSE IMPACT:
The proposed amendment clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity, and will not impose any additional reporting, recordkeeping or other compliance requirements, or costs, on school districts or charter schools.
RURAL AREA PARTICIPATION:
Comments on the proposed rule were solicited from the Department's Rural Advisory Committee. In addition, copies of the proposed rule have been provided to each charter school for review and comment.
Job Impact Statement
The proposed rule clarifies procedures for the renewal of charters of charter schools for which the Board of Regents is the charter entity. The proposed 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.
