Specific reasons underlying the finding of necessity:
The purpose of the proposed amendment is to provide districts and BOCES with additional options for measures to use in the student performance category and greater flexibility in scoring observations in the observation category. It also seeks to clarify that the Department may require changes to a collective bargaining agreement in a corrective action plan subject to collective bargaining under Article 14 of the Civil Service Law and that teacher/principal improvement plans are required to negotiated, to the extent required under Article 14 of the Civil Service Law.
Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for regular (non-emergency) adoption, after expiration of the required 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(4-a), would be the September 12-13, 2016 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the November meeting, would be September 28, 2016, the date a Notice of Adoption would be published in the State Register.
Emergency action at the May 2016 Regents meeting is therefore necessary for the preservation of the general welfare in order to immediately adopt revisions to the proposed amendment to provide immediate notice to districts of the additional allowable measures in the student performance category, the increased flexibility in scoring observations in the observation category and to clarify the collective bargaining requirements surrounding teacher/principal improvement plans and to clarify that corrective action plans may require changes to collective bargaining agreements, subject to negotiation under Article 14 of the Civil Service Law, while they are negotiating their annual professional performance review plans under Education Law § 3012-d for the 2016-2017 school year.
Subject:
Annual Professional Performance Reviews (APPR) of classroom teachers and building principals.
Purpose:
To provide hardship Waiver from Independent Evaluator Requirement.
Text of emergency/proposed rule:
1. Clause (b) of subparagraph (i) of paragraph (2) of subdivision (d) of section 30-3.4 of the Rules of the Board of Regents shall be amended, effective June 20, 2016, to read as follows:
(b) a second observation shall be conducted by either one or more impartial independent trained evaluator(s) selected and trained by the district or in cases where a hardship waiver is granted by the department pursuant to subclause (1) of this clause, a second observation shall be conducted by one or more evaluators selected and trained by the district, who are different than the evaluator(s) who conducted the evaluation pursuant to clause (a) of this paragraph; or in cases where a hardship waiver is granted by the department pursuant to subclause (2) of this subparagraph, a second observation shall be conducted as prescribed in subclause (2). An independent trained evaluator may be employed within the district, but may not be assigned to the same school building as the teacher being evaluated;
(1) . . .
(2) Commencing with the 2016-2017 school year, a school district may apply to the Department for a hardship waiver on an annual basis, in a timeframe and manner prescribed by the commissioner, if the school district believes that compliance with this clause would create an undue burden on the school district in one or more of the following areas: compliance with the independent evaluator requirement would result in financial hardship; the district lacks professionally trained staff to comply with the independent evaluator requirement; the district has a large number of teachers; and/or compliance with the independent evaluator requirement could impact safety and management of a building. A hardship waiver granted by the Department under this subclause shall excuse, but not prohibit, school districts from conducting observations by impartial independent trained evaluators for teachers who received a rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting observations by impartial independent trained evaluators for the 2016-2017 school year for teachers who receive a rating of highly effective, effective, or developing for the 2015-2016 school year; school districts would be required to conduct observations by impartial independent trained evaluators for the 2016-2017 school year for, at a minimum, teachers who receive a rating of ineffective for the 2015-2016 school year). For teachers who are excused from the impartial independent trained evaluator requirement pursuant to a hardship waiver granted by the Department under this subclause, school districts shall conduct a second observation, provided that such second observation may be conducted by the building principal/supervisor or any individual selected and trained by the school district. The two observations for such teachers could be performed by the same individual. As part of its hardship waiver request, a school district shall submit a plan for conducting observations by the building principal or other individual selected and trained by the school district in lieu of the impartial independent trained evaluator subcomponent. For the other teachers in the district who must still receive a second observation by an impartial, independent trained evaluator (teachers who, at a minimum, received an ineffective rating in the preceding school year), the district must submit a plan for conducting such observations. Once a hardship waiver is approved by the Department, it shall be considered part of the school district’s annual professional performance review plan for such school year.
2. Subparagraph (ii) of paragraph (1) of subdivision (d) of section 30-3.5 of the Rules of the Board of Regents shall be amended, effective June 20, 2016, to read as follows:
(ii) a second school visit shall be conducted by either one or more impartial independent trained evaluator(s) selected and trained by the district or in cases where a hardship waiver is granted by the department pursuant to clause (a) of this subparagraph, a second school visit shall be conducted by one or more evaluators selected and trained by the district, who are different than the evaluator(s) who conducted the evaluation pursuant to subparagraph (i) of this paragraph; or in cases where a hardship waiver is granted by the department pursuant to clause (b) of this subparagraph, a second school visit shall be conducted as prescribed in clause (b). An independent trained evaluator may be employed within the district, but may not be assigned to the same school building as the principal being evaluated;
(a) . . .
(b) Commencing with the 2016-2017 school year, a school district may apply to the Department for a hardship waiver on an annual basis, on a form and in a timeframe prescribed by the commissioner, if the school district believes that compliance with this clause would create an undue burden on the district in one or more of the following areas: compliance with the independent evaluator requirement would result in financial hardship; the district lacks professionally trained staff to comply with the independent evaluator requirement; the district has a large number of principals; and/or compliance with the independent evaluator requirement could impact safety and management of a building. A hardship waiver granted by the Department under this clause shall excuse, but not prohibit, school districts from conducting school visits by impartial independent trained evaluators for principals who received a rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting school visits by impartial independent trained evaluators for the 2016-2017 school year for principals who receive a rating of highly effective, effective, or developing for the 2015-2016 school year; school districts would be required to conduct school visits by impartial independent trained evaluators for the 2016-2017 school year for, at a minimum, principals who receive a rating of ineffective for the 2015-2016 school year). For principals who are excused from the impartial independent trained evaluator requirement pursuant to a hardship waiver granted by the Department under this clause, school districts shall conduct a second school visit, provided that such second school visit may be conducted by the principal’s supervisor or any individual selected and trained by the school district. The two school visits for such principals could be performed by the same individual. As part of its hardship waiver request, a school district shall submit a plan for conducting school visits by the principal’s supervisor or other individual selected and trained by the school district in lieu of the impartial independent trained evaluator subcomponent. For the other principals in the district who must still receive a second school visit by an impartial, independent trained evaluator (principals who, at a minimum, received an ineffective rating in the preceding school year), the district must submit a plan for conducting such school visits. Once a hardship waiver is approved by the Department, it shall be considered part of the school district’s annual professional performance review plan for such school year.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 17, 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
Data, views or arguments may be submitted to:
Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@nysed.gov
Public comment will be received until:
45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law § 101 charges the Department with the general management and supervision of the educational work of the State and establishes the Regents as head of the Department.
Education Law § 207 grants general rule-making authority to the Regents to carry into effect State educational laws and policies.
Education Law § 215 authorizes the Commissioner to require reports from schools under State educational supervision.
Education Law § 305(1) authorizes the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies. Section 305(2) provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools.
Education Law § 3009(1) provides that no part of the school moneys apportioned to a district shall be applied to the payment of the salary of an unqualified teacher, nor shall his salary or part thereof, be collected by a district tax except as provided in the Education Law.
Education Law § 3012-d, as added by Section 2 of Subpart E of Part EE of Chapter 56 of the Laws of 2015 establishes a new evaluation system for classroom teachers and building principals employed by school districts and BOCES for the 2015-16 school year and thereafter.
2. LEGISLATIVE OBJECTIVES:
The proposed rule is necessary to provide immediate notice to districts of the increased flexibility in the observation category by providing for a hardship waiver from the independent evaluator requirement, while they are negotiating their annual professional performance review plans under Education Law § 3012-d for the 2016-2017 school year.
3. NEEDS AND BENEFITS:
On April 13, 2015, the Governor signed Chapter 56 of the Laws of 2015 to add a new Education Law § 3012-d, to establish a new evaluation system for classroom teachers and building principals. The Department implemented regulations to implement the new law in June 2015 and has revised those regulations over the course of the last year to provide school districts and BOCES with as much flexibility as possible to comply with the new law. Education Law § 3012-d(12) and the corresponding appropriation language require school districts to comply with the new law by September 1, 2016 in order to receive their State aid increases. The Department has received numerous concerns about the requirement for the use of independent evaluators in teacher observations and principal school visits, notwithstanding the fact that the Department revised the regulation in September 2015 to provide a hardship waiver for rural and single building school districts. In an effort to provide more flexibility to districts (particularly the large city school districts), the Department is proposing to revise the regulations even further to provide an additional hardship waiver from the independent evaluator requirement as follows:
The proposed amendment revises sections 30-3.4 and 30-3.5 of the Rules of the Board of Regents to provide a hardship waiver to school districts and BOCES commencing with the 2016-2017 school year who believe that compliance with the independent evaluator requirement would create an undue burden on the school district/BOCES in one or more of the following areas:
1. compliance with the independent evaluator requirement would result in financial hardship to the district or BOCES;
2. the district or BOCES lacks professionally trained staff to comply with the independent evaluator requirement;
3. the district or BOCES has a large number of teachers and principals; and/or
4. compliance with the independent evaluator requirement could impact safety and management of a building (e.g., would result in the principal being absent from the school building).
Any hardship waiver granted by the Department would excuse, but not prohibit, school districts/BOCES from conducting observations/school visits by impartial independent trained evaluators for teachers/principals who received an APPR rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting observations/school visits by impartial independent trained evaluators for the 2016-2017 school year for teachers/principals who receive an APPR rating of highly effective, effective, or developing for the 2015-2016 school year; teachers/principals who, at a minimum, receive an APPR rating of ineffective for the 2015-2016 school year would continue to be subject to the requirement for evaluation by an independent evaluator for the 2016-2017 school year APPR process). However, teachers/principals who are not subject to the independent evaluator requirement pursuant to the hardship waiver must still receive a second observation/school visit. The second observation/school visit may be conducted by the building principal/supervisor or any individual selected and trained by the school district or BOCES. The two observations/school visits for such teachers/principals could be performed by the same individual.
As part of its hardship waiver request, a school district will be required to submit a plan for conducting observations/school visits by the building principal/supervisor or other trained administrators and for conducting the second observation/school visit by the building principal/supervisor or by an individual selected and trained by the school district or BOCES. For the other teachers/principals in the school district/BOCES who must still receive a second observation/school visit by an impartial, independent trained evaluator (those who, at a minimum, receive an APPR rating of ineffective in the preceding school year), the district/BOCES must submit a plan for conducting such observations/school visits. Once a hardship waiver is approved by the Department, it shall be considered part of the school district’s annual professional performance review plan for such school year.
4. COSTS:
a. Costs to State government: The amendment provides districts and BOCES with greater flexibility in their implementation of Education Law § 3012-d and does not impose any costs on State government, including the State Education Department, beyond those costs imposed by the statute.
b. Costs to local government: Education Law § 3012-d, as added by Chapter 56 of the Laws of 2015, establishes requirements for the conduct of annual professional performance reviews (APPR) of classroom teachers and building principals employed by school districts and boards of cooperative educational services (BOCES) for the 2015-2016 school year and thereafter. The amendment provides districts and BOCES with greater flexibility in their implementation of Education Law section 3012-d and does not impose any costs on local government, beyond those costs imposed by the statute.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.
6. PAPERWORK:
The proposed amendment will not increase reporting or recordkeeping requirements beyond existing requirements.
7. DUPLICATION:
The rule does not duplicate existing State or Federal requirements.
8. ALTERNATIVES:
The proposed amendment is necessary to provide districts and BOCES greater flexibility in their implementation of Education Law § 3012-d and, therefore, no alternatives were considered.
9. FEDERAL STANDARDS:
There are no applicable Federal standards concerning the APPR for classroom teachers and building principals as established in Education Law § 3012-d.
10. COMPLIANCE SCHEDULE:
The annual hardship waiver will be available commencing with the 2016-2017 school year.
Regulatory Flexibility Analysis
(a) Small businesses:
The purpose of proposed rule is to provide annual hardship waivers from the independent evaluator requirement for annual professional performance reviews for school districts and BOCES commencing with the 2016-2017 school year for school districts who believe that compliance with the independent evaluator requirement would create an undue burden on the school district/BOCES.
Any hardship waiver granted by the Department would excuse, but not prohibit, school districts/BOCES from conducting observations/school visits by impartial independent trained evaluators for teachers/principals who received an APPR rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting observations/school visits by impartial independent trained evaluators for the 2016-2017 school year for teachers/principals who receive an APPR rating of highly effective, effective, or developing for the 2015-2016 school year; teachers/principals who, at a minimum, receive an APPR rating of ineffective for the 2015-2016 school year would continue to be subject to the requirement for evaluation by an independent evaluator for the 2016-2017 school year APPR process). However, teachers/principals who are not subject to the independent evaluator requirement pursuant to the hardship waiver must still receive a second observation/school visit.
Because it is evident from the nature of the rule that it does not affect small businesses, no further steps were needed to ascertain that fact and one were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
(b) Local governments:
1. EFFECT OF RULE:
The rule applies to each of the approximately 689 school districts and 37 boards of cooperative educational services (BOCES) in the State.
2. COMPLIANCE REQUIREMENTS:
On April 13, 2015, the Governor signed Chapter 56 of the Laws of 2015 to add a new Education Law § 3012-d, to establish a new evaluation system for classroom teachers and building principals. The Department implemented regulations to implement the new law in June 2015 and has revised those regulations over the course of the last year to provide school districts and BOCES with as much flexibility as possible to comply with the new law. Education Law § 3012-d(12) and the corresponding appropriation language require school districts to comply with the new law by September 1, 2016 in order to receive their State aid increases. The Department has received numerous concerns about the requirement for the use of independent evaluators in teacher observations and principal school visits, notwithstanding the fact that the Department revised the regulation in September 2015 to provide a hardship waiver for rural and single building school districts. In an effort to provide more flexibility to districts (particularly the large city school districts), the Department is proposing to revise the regulations even further to provide an additional hardship waiver from the independent evaluator requirement as follows:
The proposed amendment revises sections 30-3.4 and 30-3.5 of the Rules of the Board of Regents to provide a hardship waiver to school districts and BOCES commencing with the 2016-2017 school year who believe that compliance with the independent evaluator requirement would create an undue burden on the school district/BOCES in one or more of the following areas:
1. compliance with the independent evaluator requirement would result in financial hardship to the district or BOCES;
2. the district or BOCES lacks professionally trained staff to comply with the independent evaluator requirement;
3. the district or BOCES has a large number of teachers and principals; and/or
4. compliance with the independent evaluator requirement could impact safety and management of a building (e.g., would result in the principal being absent from the school building).
Any hardship waiver granted by the Department would excuse, but not prohibit, school districts/BOCES from conducting observations/school visits by impartial independent trained evaluators for teachers/principals who received an APPR rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting observations/school visits by impartial independent trained evaluators for the 2016-2017 school year for teachers/principals who receive an APPR rating of highly effective, effective, or developing for the 2015-2016 school year; teachers/principals who, at a minimum, receive an APPR rating of ineffective for the 2015-2016 school year would continue to be subject to the requirement for evaluation by an independent evaluator for the 2016-2017 school year APPR process). However, teachers/principals who are not subject to the independent evaluator requirement pursuant to the hardship waiver must still receive a second observation/school visit. The second observation/school visit may be conducted by the building principal/supervisor or any individual selected and trained by the school district or BOCES. The two observations/school visits for such teachers/principals could be performed by the same individual.
As part of its hardship waiver request, a school district will be required to submit a plan for conducting observations/school visits by the building principal/supervisor or other trained administrators and for conducting the second observation/school visit by the building principal/supervisor or by an individual selected and trained by the school district or BOCES. For the other teachers/principals in the school district/BOCES who must still receive a second observation/school visit by an impartial, independent trained evaluator (those who, at a minimum, receive an APPR rating of ineffective in the preceding school year), the district/BOCES must submit a plan for conducting such observations/school visits. Once a hardship waiver is approved by the Department, it shall be considered part of the school district’s annual professional performance review plan for such school year.
3. PROFESSIONAL SERVICES:
The proposed rule does not impose any additional professional services requirements on local governments beyond those imposed by, or inherent in, the statute.
4. COMPLIANCE COSTS:
There are no additional costs imposed by the proposed amendment, beyond those imposed by statute.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule does not impose any additional technological requirements on school districts or BOCES. Economic feasibility is addressed in the Costs section of the Summary of the Regulatory Impact Statement submitted herewith.
6. MINIMIZING ADVERSE IMPACT:
The rule is necessary to provide districts and BOCES with greater flexibility in implementing the provisions of Education Law § 3012-d. Because Education Law § 3012-d applies to all school districts and BOCES in the State, the Department did not establish differing compliance or reporting requirements or timetables or exempt schools in rural areas from coverage by the proposed amendment.
7. LOCAL GOVERNMENT PARTICIPATION:
The proposed amendment is submitted in direct response to feedback and comments provided by various stakeholder groups, including representatives of school districts and BOCES State-wide. Such stakeholder groups have consistently requested greater flexibility in implementing the provisions of Education Law § 3012-d in the areas addressed by the proposed amendment.
Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from 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 rule applies to all school districts and boards of cooperative educational services (BOCES) in the State, including those located in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
On April 13, 2015, the Governor signed Chapter 56 of the Laws of 2015 to add a new Education Law § 3012-d, to establish a new evaluation system for classroom teachers and building principals. The Department implemented regulations to implement the new law in June 2015 and has revised those regulations over the course of the last year to provide school districts and BOCES with as much flexibility as possible to comply with the new law. Education Law § 3012-d(12) and the corresponding appropriation language require school districts to comply with the new law by September 1, 2016 in order to receive their State aid increases. The Department has received numerous concerns about the requirement for the use of independent evaluators in teacher observations and principal school visits, notwithstanding the fact that the Department revised the regulation in September 2015 to provide a hardship waiver for rural and single building school districts. In an effort to provide more flexibility to districts (particularly the large city school districts), the Department is proposing to revise the regulations even further to provide an additional hardship waiver from the independent evaluator requirement as follows:
The proposed amendment revises sections 30-3.4 and 30-3.5 of the Rules of the Board of Regents to provide a hardship waiver to school districts and BOCES commencing with the 2016-2017 school year who believe that compliance with the independent evaluator requirement would create an undue burden on the school district/BOCES in one or more of the following areas:
1. compliance with the independent evaluator requirement would result in financial hardship to the district or BOCES;
2. the district or BOCES lacks professionally trained staff to comply with the independent evaluator requirement;
3. the district or BOCES has a large number of teachers and principals; and/or
4. compliance with the independent evaluator requirement could impact safety and management of a building (e.g., would result in the principal being absent from the school building).
Any hardship waiver granted by the Department would excuse, but not prohibit, school districts/BOCES from conducting observations/school visits by impartial independent trained evaluators for teachers/principals who received an APPR rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting observations/school visits by impartial independent trained evaluators for the 2016-2017 school year for teachers/principals who receive an APPR rating of highly effective, effective, or developing for the 2015-2016 school year; teachers/principals who, at a minimum, receive an APPR rating of ineffective for the 2015-2016 school year would continue to be subject to the requirement for evaluation by an independent evaluator for the 2016-2017 school year APPR process). However, teachers/principals who are not subject to the independent evaluator requirement pursuant to the hardship waiver must still receive a second observation/school visit. The second observation/school visit may be conducted by the building principal/supervisor or any individual selected and trained by the school district or BOCES. The two observations/school visits for such teachers/principals could be performed by the same individual.
As part of its hardship waiver request, a school district will be required to submit a plan for conducting observations/school visits by the building principal/supervisor or other trained administrators and for conducting the second observation/school visit by the building principal/supervisor or by an individual selected and trained by the school district or BOCES. For the other teachers/principals in the school district/BOCES who must still receive a second observation/school visit by an impartial, independent trained evaluator (those who, at a minimum, receive an APPR rating of ineffective in the preceding school year), the district/BOCES must submit a plan for conducting such observations/school visits. Once a hardship waiver is approved by the Department, it shall be considered part of the school district’s annual professional performance review plan for such school year.
3. COSTS:
The proposed amendment will not impose any additional costs beyond those imposed by, or inherent in, the statute.
4. MINIMIZING ADVERSE IMPACT:
The rule is necessary to provides districts and BOCES with greater flexibility in their implementation of Education Law § 3012-d. Because Education Law § 3012-d applies to all school districts and BOCES in the State, the Department did not prescribe differing compliance or reporting requirements for rural areas of the State.
5. RURAL AREA PARTICIPATION:
The proposed amendment provides districts and BOCES with greater flexibility in their implementation of Education Law § 3012-d and Subpart 30-3 of the Rules of the Board of Regents. The proposed amendments are submitted in response, in part, to comments received from rural school districts and BOCES.
The Department has solicited comments on the proposed amendment from the Rural Area Advisory Council, whose members live or work in rural areas of this State.
Job Impact Statement
The purpose of proposed rule is to provide annual hardship waivers from the independent evaluator requirement for annual professional performance reviews for school districts and BOCES commencing with the 2016-2017 school year for school districts who believe that compliance with the independent evaluator requirement would create an undue burden on the school district/BOCES.
Any hardship waiver granted by the Department would excuse, but not prohibit, school districts/BOCES from conducting observations/school visits by impartial independent trained evaluators for teachers/principals who received an APPR rating of highly effective, effective, or developing in the preceding school year (e.g., school districts would be excused, but not prohibited, from conducting observations/school visits by impartial independent trained evaluators for the 2016-2017 school year for teachers/principals who receive an APPR rating of highly effective, effective, or developing for the 2015-2016 school year; teachers/principals who, at a minimum, receive an APPR rating of ineffective for the 2015-2016 school year would continue to be subject to the requirement for evaluation by an independent evaluator for the 2016-2017 school year APPR process). However, teachers/principals who are not subject to the independent evaluator requirement pursuant to the hardship waiver must still receive a second observation/school visit.
Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York State, 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.
