Specific reasons underlying the finding of necessity:
The proposed amendment is necessary to implement revisions to policy adopted by the Board of Regents to expand by two additional points the existing eligible score band for an appeal of Regents examinations passing scores. Under the proposed amendment, students could appeal scores of 60-64 (expanded from 62-64) on up to two Regents examinations. Students who are granted one appeal by their local superintendent would then earn a Regents diploma. Students who are granted two appeals would earn a local diploma. In addition, the proposed amendment would eliminate the requirement that in order to be eligible to appeal students must meet a minimum attendance requirement of 95%, exclusive of excused absences, in the year they last took the examination under appeal.
At the March 2016 Regents meeting, the proposed amendment was adopted as an emergency action, effective March 22, 2016. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on April 6, 2016.
The proposed amendment has now been adopted as a permanent rule at the June 13-14, 2016 Regents meeting. Pursuant to SAPA § 203(1), the earliest effective date of the proposed amendment, if adopted at the February meeting, would be June 29, 2016, the date a Notice of Adoption will be published in the State Register. However, the March emergency rule will expire on June 19, 2016, ninety days after filing the Notice of Emergency Adoption and Proposed Rule Making with the Department of State on March 22, 2016. A lapse in the rule could disrupt administration of the process for certain eligible students to appeal Regents examinations passing scores pursuant to the rule’s provisions.
Emergency action is therefore necessary for the preservation of the general welfare in order to ensure that the emergency rule adopted at the March 2016 Regents meeting remains continuously in effect until the effective date of the rule’s permanent adoption.
Subject:
Appeals process on Regents exams passing score.
Purpose:
To expand by two additional points the eligible score band for the appeal process on Regents examinations passing scores and to eliminate the minimum attendance eligibility requirement for such appeals.
Text of emergency rule:
Paragraph (7) of subdivision (d) of section 100.5 of the Regulations of the Commissioner of Education is amended, effective June 20, 2016, as follows:
(7) Appeals process on Regents examinations passing score to meet Regents diploma requirements.
(i) School districts shall provide unlimited opportunities for all students to retake required Regents examinations to improve their scores.
(a) A student who first enters grade nine in September 2005 or thereafter and who fails, after at least two attempts, to attain a score of 65 or above on a required Regents examination for graduation shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph, provided that no student may appeal his or her score on more than two of the five required Regents examinations and provided further that the student:
(1) has scored within [three] five points of the 65 passing score on the required Regents examination under appeal and has attained at least a 65 course average in the subject area of the Regents examination under appeal;
(2) provides evidence that he or she has received academic intervention services by the school in the subject area of the Regents examination under appeal;
[(3) has an attendance rate of at least 95 percent for the school year during which the student last took the required Regents examination under appeal;]
[(4)] (3) has attained a course average in the subject area of the Regents examination under appeal that meets or exceeds the required passing grade by the school and is recorded on the student's official transcript with grades achieved by the student in each quarter of the school year; and
[(5)] (4) is recommended for an exemption to the passing score on the required Regents examination under appeal by his or her teacher or department chairperson in the subject area of such examination.
(b) A student who first enters school in the United States (the 50 States and the District of Columbia) in grade 9, 10, 11 or 12 and is otherwise eligible to graduate in January 2015 or thereafter, is identified as an English Language Learner pursuant to Part 154 of this Title, and fails, after at least two attempts, to attain a score of 65 or above on the required Regents examination in English language arts for graduation, shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph, provided that no such student may appeal his or her score on more than two of the five required Regents examinations and provided further that the student:
(1) . . .
(2) . . .
[(3) has an attendance rate of at least 95 percent for the school year during which the student last took the required Regents examination in English language arts;]
[(4)] (3). . .
[(5)] (4). . .
(c) A student who is otherwise eligible to graduate in January 2016 or thereafter, is identified as a student with a disability as defined in section 200.1(zz) of this Title, and fails, after at least two attempts, to attain a score of 55 or above on up to two of the required Regents examinations for graduation shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph for purposes of graduation with a local diploma, provided that the student:
(1) . . .
(2) has met the criteria specified in subclauses [(2) - (5)] (2) – (4) of clause (a) of this subparagraph.
Notwithstanding the provisions of this clause, a student with a disability who makes use of the compensatory option in clause (b)(7)(vi)(c) of this section to obtain a local diploma may not also appeal a score below 55 on the English language arts or mathematics Regents examinations pursuant to this clause.
(ii) . . .
(iii) . . .
(iv) . . .
(v) . . .
(vi) . . .
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-14-16-00003-EP, Issue of April 6, 2016. The emergency rule will expire August 12, 2016.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 empowers the Board of Regents and the Commissioner to adopt rules and regulations to carry out laws of the State regarding education and the functions and duties conferred on the Department by law.
Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law section 209 authorizes the Regents to establish secondary school examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations; and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.
Education Law section 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education, and shall execute all educational policies determined by the Board of Regents.
Education Law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.
Education Law section 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of instruction.
Education Law section 3204(3) provides for required courses of study in the public schools and authorizes the State education department to alter the subjects of required instruction.
LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement policy enacted by the Board of Regents relating to the State learning standards, State assessments and graduation and diploma requirements.
NEEDS AND BENEFITS:
Pursuant to the appeal process set forth in Commissioner’s Regulation § 100.5(d)(7), students may appeal scores of 62-64 on up to two required Regents examinations, provided they meet the following criteria.
Students must:
1. Have taken the Regents examination under appeal at least two times;
2. Present evidence that the student has taken advantage of academic help provided by the school in the subject tested by the Regents Examination under appeal;
3. Have an attendance rate of 95 percent (except for excused absences) for the school year during which the student last took the Regents examination under appeal;
4. Have a course average in the subject under appeal (as evidenced in the official transcript that records grades achieved by the student in each quarter of the school year) that meets or exceeds the required passing grade by the school; and
5. Be recommended for an exemption to the graduation requirement by the student’s teacher or Department chairperson in the subject of the Regents examination under appeal.
In January 2015, the Board of Regents amended § 100.5(d)(7) to extend the appeal process to allow eligible English language learners to appeal scores of 55-61 on the English Language Arts Regents Examination. In December 2015, the Board amended the regulation to extend the appeal provision to students with disabilities who were seeking the local diploma through the existing safety net options. These students are able to appeal scores of between 52 and 54 on up to two Regents examinations and earn the local diploma.
Under the proposed amendment, students could appeal scores of 60-64 (expanded from 62-64) on up to two Regents examinations. Students who are granted one appeal by their local superintendent would then earn a Regents diploma. Students who are granted two appeals would earn a local diploma.
In addition, the proposed amendment would eliminate the requirement that in order to be eligible to appeal students must meet a minimum attendance requirement of 95%, exclusive of excused absences, in the year they last took the examination under appeal. The attendance requirement is problematic for a number of reasons. The rate required exceeds the statewide average attendance rate. In addition a student’s ability to provide an excuse for an absence may be dependent upon circumstances that are not within the student’s control. Finally, a student’s attendance in the year they last took the test may not be appropriate or applicable. Often students retake examinations multiple times in an attempt to meet diploma requirements. These attempts can be made long after a student has met course requirements and is no longer attending school. Often a student may be returning to school for the sole purpose of attempting to pass the examination, so class attendance cannot be calculated in the year they last took the exam. No student may submit an appeal unless they have passed the course for which the appeal is being sought. If the student’s attendance is adequate to meet course expectations and ultimately pass the course, the appeal should be considered.
COSTS:
(a) Costs to State government: None.
(b) Costs to local government: There may be additional costs to school districts to process a limited number of additional appeals from students who score 60 or 61 on up to two required Regents examinations. Such costs are expected to be minimal and capable of being absorbed using existing district staff and resources.
(c) Costs to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: None.
LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon school districts. An appeals process and criteria are already in place for students who score 62-64 on two Regents exams, and the proposed amendment merely expands by two additional points the existing eligible score band for an appeal. Existing diploma requirements allow students to appeal scores of 62-64 on up to two required Regents examinations. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations. Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals.
Existing diploma requirements allow students to appeal scores of 62-64 on up to two required Regents examinations. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations.
PAPERWORK:
The proposed amendment will not require any additional paperwork beyond what is necessary to process a limited number of additional appeals from students who score 60 or 61 on up to two required Regents examinations. Appeals under the expanded eligibility scores would be subject to the existing requirement in section 100.5(d)(7) that each school keep a record of all appeals received and granted and report this information to Department on a form prescribed by the Commissioner. All school records relating to appeals of scores shall be made available for inspection by the Department.
DUPLICATION:
The proposed amendment does not duplicate existing State or federal regulations.
ALTERNATIVES:
There were no significant alternatives and none were considered. The proposed amendment is necessary to implement policy enacted by the Board of Regents relating to the State learning standards, State assessments and graduation and diploma requirements. The proposed amendment merely expands by two additional points the existing eligible score band for an appeal of Regents examinations passing scores.
FEDERAL STANDARDS:
There are no related federal standards.
COMPLIANCE SCHEDULE:
It is anticipated that schools and school districts will be able to achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to State learning standards, State assessments and graduation and diploma requirements, and merely expands by two additional points the existing eligible score band for an appeal of Regents examinations passing scores. Existing diploma requirements allow students to appeal scores of 62-64 on up to two required Regents examinations. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations.
The proposed amendment does not impose any adverse economic impact, reporting, record keeping 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 steps 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 each of the 689 public school districts in the State.
COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements on local governments. An appeals process and criteria are already in place for students who score 62-64 on two Regents exams, and the proposed amendment merely expands by two additional points the existing eligible score band for an appeal. Existing diploma requirements allow students to appeal scores of 62-64 on up to two required Regents examinations. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations. In addition, the proposed amendment would eliminate the requirement that in order to be eligible to appeal students must meet a minimum attendance requirement of 95%, exclusive of excused absences, in the year they last took the examination under appeal. Newly qualifying students under the expanded criteria would merely go through the existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals.
PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional service requirements on local governments.
COMPLIANCE COSTS:
There may be additional costs to school districts to process a limited number of additional appeals from students who score 60 or 61 on up to two required Regents examinations. Such costs are expected to be minimal and capable of being absorbed using existing district staff and resources.
ECONOMIC AND TECHNOLOGICAL FEASIBILTY:
The proposed amendment does not impose any additional technological requirements on school districts. Economic feasibility is addressed above under compliance costs.
MINIMIZE ADVERSE IMPACT:
The proposed amendment is necessary to implement Regents policy relating to State learning standards, State assessments and graduation and diploma requirements. The proposed amendment does not impose any additional compliance requirements or significant costs upon school districts or BOCES. An appeals process and criteria are already in place for students who score 62-64 on two Regents exams, and the proposed amendment merely expands by two additional points the existing eligible score band for an appeal of Regents examinations passing scores. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations. In addition, the proposed amendment would eliminate the requirement that in order to be eligible to appeal students must meet a minimum attendance requirement of 95%, exclusive of excused absences, in the year they last took the examination under appeal. Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals.
7. 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 the chief school officers of the five big city school districts.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment applies to all school districts and boards of cooperative educational services (BOCES) in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements on school districts and BOCES located in rural areas. An appeals process and criteria are already in place for students who score 62-64 on two Regents exams, and the proposed amendment merely expands by two additional points the existing eligible score band for an appeal. Existing diploma requirements allow students to appeal scores of 62-64 on up to two required Regents examinations. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations. In addition, the proposed amendment would eliminate the requirement that in order to be eligible to appeal students must meet a minimum attendance requirement of 95%, exclusive of excused absences, in the year they last took the examination under appeal. Newly qualifying students under the expanded criteria would merely go through the existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals. The proposed amendment does not impose any additional professional service requirements on local governments.
3. COMPLIANCE COSTS:
There may be additional costs to school districts to process a limited number of additional appeals from students who score 60 or 61 on up to two required Regents examinations. Such costs are expected to be minimal and capable of being absorbed using existing district staff and resources.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement Regents policy relating to State learning standards, State assessments and graduation and diploma requirements. The proposed amendment does not impose any additional compliance requirements or significant costs upon school districts or BOCES. An appeals process and criteria are already in place for students who score 62-64 on two Regents exams, and the proposed amendment merely expands by two additional points the existing eligible score band for an appeal of Regents examinations passing scores. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations. In addition, the proposed amendment would eliminate the requirement that in order to be eligible to appeal students must meet a minimum attendance requirement of 95%, exclusive of excused absences, in the year they last took the examination under appeal. Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals.
The proposed amendment is necessary to implement Regents policy relating to State learning standards, State assessments and graduation and diploma requirements. Because this policy is applicable throughout the State, it was not possible to provide for a lesser standard or an exemption for school districts and BOCES in rural areas.
5. RURAL AREA PARTICIPATION:
Comments on the proposed rule were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The proposed amendment merely expands by two additional points the existing eligible score band for an appeal of Regents examinations passing scores and does not impose any additional costs on the State, school districts, students or the State Education Department. Existing diploma requirements allow students to appeal scores of 62-64 on up to two required Regents examinations. Under the proposed amendment, students could appeal scores of 60-64 (rather than 62-64) on up to two Regents examinations.
The proposed amendment relates to State learning standards, State assessments and graduation and diploma requirements and will not have a substantial adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact, or a positive impact, on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on April 6, 2016, the State Education Department received comments on the proposed amendment. A summary of comments and the Department's responses follows.
1. COMMENT:
A commenter supports the proposed regulation expanding the score band on the appeal from 62-64 to 60-64, stating, “…the amendment allows students with test anxiety greater leeway and gives them the ability to succeed.” Also states, “…there should be some minimal attendance requirement, i.e. 75%, to require responsibility from the student”.
DEPARTMENT RESPONSE:
To the extent the comments are supportive, no response is necessary. However, to the extent the commenter seeks a minimum attendance requirement to require responsibility from the student, the Department believes that the proposed amendment already provides significant flexibility to the district by allowing the local appeal committee the discretion to recommend approval or denial of an appeal to the district superintendent.
2. COMMENT:
The commenter supports expanding the score band for a Regents exam appeal from 62 to 60 and supports the elimination of the minimum attendance requirement.
“We support expanding the score band for a Regents exam appeal from 62 to 60. We also support the elimination of the minimum attendance requirement. Multilingual Learners often struggle to demonstrate what they know and can do on standardized tests due to their developing English language skills. In addition, some older MLLs who have completed all of their coursework and are attempting to pass one or more Regents exams are often unable to meet the minimum attendance requirement. Some Multilingual Learners may also struggle to meet this requirement due to immigration court appearances and other situations beyond their control.”
The commenter recommends the following modifications to existing rules:
• Reduce the number of times a student must fail a Regents exam in order to be eligible for an appeal. Requiring students to attempt the exam twice causes students and schools to spend time and resources on test prep when they could be engaged in learning and mastering new material. Students who feel discouraged after their first attempt may also become disengaged from school, which contributes to higher dropout rates.
• Allow students to appeal all Regents exams. Providing students with the opportunity to appeal all of the Regents exams will help to ensure that these exams do not pose an obstacle to graduation and postsecondary opportunities for students who have mastered State standards, as demonstrated by their coursework.
“The proposed changes to the requirements for a Regents exam appeal will provide increased flexibility within the current assessment system. In order to ensure that all students are given a fair opportunity to demonstrate their mastery of State standards, we encourage the New York State Education Department to continue to explore options for providing Multilingual Learners access to alternative assessments, including performance-based assessments.”…
DEPARTMENT RESPONSE:
To the extent the comments are supportive of the proposed amendment, no response is necessary.
To the extent that the commenter requests that the Department reduce the number of times the test taker must take the examination before eligibility for an appeal and/or allow a student to appeal the score of any Regents examination, the Department believes the proposed amendment strikes the appropriate balance between the need to provide students with the opportunity to graduate and the Board of Regents desire to ensure that students are college and career ready upon graduation.
In the last couple of years, the Department has provided multiple safety net options for the Regents examinations and will continue to pursue other alternatives. Currently, Regents Rule section 8.3(1) and section 100.5 of the Commissioner’s regulations generally set the passing score on the Regents examinations at 65. The appeals process is intended to carve out limited exceptions for students who are unable to pass a subset of Regents examinations at a 65, but have otherwise demonstrated the ability to meet the standards for graduation in those subject areas.
Moreover, the Department believes that making students take the examination twice before being eligible for an appeal provides the student with the opportunity to prepare for the examination again, with the intent for the student to review the material a second time; thereby providing them with a second meaningful opportunity to obtain the content knowledge for that subject area, so they can succeed in college and/or their career. In any case, the commenter is requesting a change to a requirement of the existing regulation that is beyond the scope of the current rule making.
