To prescribe requirements for bilingual education and English as a New Language programs for English Language Learners.
Substance of proposed rule (Full text is posted at the following State website:
http://www.regents.nysed.gov/meetings/2014/June2014/614monthmat.html): The Commissioner of Education proposes to amend Part 154 by adding new Subparts 154-1 and 154-2 of the Commissioner's Regulations, effective October 1, 2014. The following is a summary of the substantive provisions of the proposed rule.
The existing Part 154 regulations are amended to refer to “English Language Learners (ELL)” instead of “pupils with limited English proficiency” and reorganized under a new Subpart 154-1, which is generally made applicable to programs operated beginning with the 2007-2008 school year and prior to the 2015-2016 school year; provided that a school district may choose to implement one or more provisions of the new Subpart 154-2 in the 2014-2015 school year upon submission of a plan and approval by the Commissioner.
A New Subpart 154-2 is added and generally made applicable to programs operated beginning with the 2015-2016 school year, and includes the following provisions:
INITIAL AND REENTRY PROCESS AND DETERMINATION OF ENGLISH PROFICIENCY [§ 154-2.3(a)]
Implement a four step English Language Learner (ELL) identification process upon a student’s initial enrollment or reentry in a New York State public school to ensure holistic and individualized decisions can be made by qualified staff, including:
(1) administration of the Home Language Questionnaire;
(2) an individual interview with the student;
(3) a determination for students with a disability of whether the disability is the determinant factor affecting the student’s ability to demonstrate proficiency in English; and
(4) administration of a statewide English language proficiency identification assessment.
SIFE status [§ 154-2.3(a) and (n)]
Districts shall identify ELLs as Students with Interrupted/Inconsistent Formal Education (SIFE) as part of the identification process. SIFE students shall continue to be identified as such until the performance criteria for removal are met, even if the student continues to be identified as an ELL. Upon a student’s exiting SIFE status, the school district must maintain records of student’s SIFE status.
REVIEW OF IDENTIFICATION DETERMINATION [§ 154-2.3(b)]
Implement a review process to determine if a student was misidentified upon enrollment or reentry to be completed within the first 45 days of school. A review would commence upon request by a parent; or teacher with the consent of the parent; or a student, if the student is 18 years old or older. Parental, or student if the student is 18 years or older, consent; principal and superintendent approval are required before a change in determination.
PARENT NOTIFICATION AND INFORMATION [§ 154-2.3(f)]
School staff shall meet with parents or persons in parental relation at least once a year, in addition to other generally required meetings with parents, to discuss their child’s academic content and language development progress and needs.
RETENTION OF IDENTIFICATION AND REVIEW RECORDS [§ 154-2.3(c)]
Districts shall collect and maintain in ELL student’s cumulative record:
• records indicating parent’s preferred language or mode of communication; and
• records of notices and forms generated during the identification and placement process, and review process.
PLACEMENT [§ 154-2.3(g)]
Continue to require placement in a Bilingual Education / ESL program within 10 school days after initiating the identification process. Districts shall complete the identification process before an ELL student receives a final school placement.
PROGRAM REQUIREMENTS & PROVISION OF PROGRAMS [§ 154-2.3(d) and (h)]
Districts shall create annual estimates of ELL enrollment before the end of each school year and create a sufficient number of Bilingual Education programs in the district, if there are 20 or more ELLs of the same grade level who speak the same home language district wide.
Districts will be allowed to apply for a one-year exemption for languages that represent less than 2% of the statewide population, if they can demonstrate they meet established criteria for a one-year exemption.
New programs triggered by this provision shall be placed in a school that has not been identified as a Schools Under Registration Review or as a Focus or Priority School, if such school exists in the district.
Continue to require that each school with 20 or more ELL students of the same grade who speak the same home language provide a Bilingual Education program.
English as a Second Language instruction shall be offered through two settings:
(1) Integrated ESL (ESL methodologies in content area instruction co-taught or taught by a dually certified teacher); and
(2) Stand-alone (ESL instruction with an ESL teacher to develop the English language needed for academic success).
PROGRAM CONTINUITY [§ 154-2.3(e)]
Districts shall provide program continuity so that ELLs can continue to receive the program type (Bilingual Education or ESL) in which they were initially enrolled.
EXIT CRITERIA [§ 154-2.3(m)]
Implement three different criteria to allow students to exit ELL status, including:
(1) scoring proficient on the statewide English language proficiency assessment;
(2) a combination of NYSESLAT scores and 3-8 ELA assessment or ELA Regents scores; or
(3) a determination that an ELL with a disability cannot meet criteria (1) or (2) because of their disability and are not in need of ELL services.
SUPPORT AND TRANSITIONAL SERVICES [§ 154-2.3(i)]
Districts shall annually identify ELLs not demonstrating adequate performance and provide additional supports aligned to district wide intervention plans.Districts shall provide at least two years of transitional supports to ELLs who exit out of ELL status (former ELLs).
PROFESSIONAL DEVELOPMENT AND CERTIFICATION [§ 154-2.3(k)]
Create certification areas for bilingual teaching assistants and tenure and seniority protection areas for bilingual teaching assistants, bilingual teachers and ESL teachers.
Require that all prospective teachers complete coursework on ELL instructional needs, language acquisition and cultural competency.
Require that 15 percent of professional development hours for all teachers and administrators be specific to the needs of ELLs, language acquisition and cultural competency.
Require that 50 percent of professional development hours for all Bilingual Education and ESL teachers to be specific to the needs of ELLs, language acquisition and cultural competency.
DISTRICT PLANNING AND REPORTING [§ 154-2.4]
Districts shall provide additional information in plans regarding programs for subpopulations of ELLs, information provided to parents, methods to annually measure and track ELL progress, and systems to identify, assess, and exit students from ELL status.
Require districts to provide additional information in reports regarding programs for subpopulations of ELLs including program information, if offered, by subpopulations and languages spoken in the district.
Text of proposed 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@mail.nysed.gov
Data, views or arguments may be submitted to:
Ken Slentz, Deputy Commissioner, State Education Department, Office of P-12 Education, State Education Building 2M West, 89 Washington Ave., Albany, NY 12234, (518) 474-5520, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Summary of Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law sections 207 (not subdivided), 208 (not subdivided), 215 (not subdivided), 305(1) and (2), 2117(1), 2854(1)(b) and 3204(2), (2-a), (3) and (6).
LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above statutory authority, and is necessary to implement Regents policy on instruction standards for English Language Learners (ELL), to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
NEEDS AND BENEFITS:
Federal civil rights and education laws and court jurisprudence requires that ELL students be provided with equal access to all school programs and services offered to non-ELL students, including access to programs required for graduation. Education Law section 3204 and Part 154 of the Regulations of the Commissioner (CR Part 154) contain standards for educational services provided to ELLs in New York State in order to meet these federal obligations.
In light of developments in research and best practices for ELL instruction, federal jurisprudence on civil rights obligations towards ELLs, and concerns about the achievement gap between ELLs and non-ELLs, SED engaged stakeholders to determine how Part 154 programs and services could be enhanced to better meet the needs of the State’s multilingual population.
Over the past 10 years, New York State (NYS) ELL student enrollment has increased by 20%; ahead of the 18% national increase reported by the U.S. Department of Education. Currently in NYS, over 230,000 ELLs speaking over 140 languages make up approximately 9% of the total student population. Spanish is the home language for approximately 62% of ELLs, and just over 41% were born in another country. In 2013, 74% of all eligible NYS students graduated high school compared to 34% of ELLs who graduated. Of total State graduates, just over 35% were calculated to be college and career ready compared to just over 7% of ELL graduates calculated to be college and career ready. In 2012, 58% of non-ELLs met or exceeded the ELA proficiency standard in grades 3-8. For the same year, 11.7 % of ELLs met or exceeded the standard. In 2013, with the implementation of the more rigorous Common Core Learning Standards, 33% of non-ELLs met or exceeded the ELA proficiency standard in grades 3-8 with 3.2% of their ELL peers achieving the same standard. In 2012, 67.2% of non-ELLs met or exceeded the Math proficiency standard in grades 3-8. For the same year, 34.4 % of ELLs met or exceeded the standard. In 2013, with the implementation of the more rigorous NYS Common Core Learning Standards, 32.7% of non-ELLs met or exceeded the Math proficiency standard in grades 3-8 with 9.8% of their ELL peers achieving the same standard.
The proposed rule will improve the learning environment and academic outcomes for ELLs to close the achievement gap between ELLs and non-ELLs, and ensure that ELLs can graduate college and career ready.
COSTS:
(a) Costs to State government: The rule is necessary to ensure compliance with State and federal law, and does not impose any costs on State government, including SED, beyond those imposed by the applicable statutes.
(b) Cost to local governments: For most areas, the rule does not impose any new costs not currently required by existing State and federal requirements. In a few areas there may be additional costs and cost savings.
Increased costs may be associated with:
• new identification process and use of qualified personnel
• review of initial determination process
• retention of identification documents
• parent notification and meeting requirements
• professional development requirement
• expanded reporting requirements
• districts newly required to provide bilingual instruction or expand their bilingual programs will incur additional costs for curriculum and instruction materials for new bilingual classes.
When fully implemented, the rule’s provisions may result in savings to districts through elimination or reduction of costs associated with:
• providing services to students incorrectly identified as ELL
• providing ELL services to students with disabilities who do not need such services
• ability of high school ELL to earn content area credit while acquiring English proficiency
• ability of ELL students to demonstrate English proficiency through multiple measures
• the rule’s provision allowing for integrated co-teaching rather than stand-alone classes, may result in increased costs, less costs, or the same costs, depending on how districts structure their programs.
SED cannot estimate actual costs or costs savings for each school district because they will vary widely from district to district, depending on the size of the school district, the number of ELL students, the languages spoken, the grades in which the students are enrolled, the number and types of programs provided, teaching staff levels, collective bargaining provisions, and how districts decide to reallocate existing resources to meet the above provisions. Most districts are or should be serving their ELLs currently, but SED does not have data on the amount of funds currently dedicated to these activities in each district. Moreover, additional funds are made available to school districts every year for their ELLs through a foundation aid formula that weights funding for ELLs at an additional.5 weight per ELL student. Additionally, many districts receive Title III funds for their ELL students to supplement services for ELL students. SED will inform districts that portions of those monies should be used to offset some of these costs.
(c) Cost to private regulated parties: None.
(d) Costs to regulating agency for implementation and continued administration of this rule: See above costs to State government.
LOCAL GOVERNMENT MANDATES:
The proposed rule is necessary to implement Regents policy on standards for instruction of English Language Learners (ELL), to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). The majority of the requirements in the proposed rule do not impose any program, service, duty or responsibility on school districts and BOCES beyond those imposed by the applicable State and federal statutes.
Each school district shall implement a four-step identification process to determine if a student is ELL upon initial enrollment/reentry in school, including:
(1) administration of a Home Language Questionnaire;
(2) an individual interview with the student to determine if the student shall be administered the statewide English language proficiency identification assessment and to determine the student’s grade level of literacy in their home language and grade level in math;
(3) where applicable, a process to determine whether students with disabilities shall take the statewide English language proficiency identification assessment and whether the student should be identified as ELL; and
(4) administration of a statewide English language proficiency identification assessment.
The district shall provide for review of its determination in accordance with the proposed rule.
Each district shall provide, as set forth in the proposed rule, either a Bilingual Education or English as a New Language program to ELL students.
Each district in which the sum of each school's Annual Estimate of Enrollment equals 20 or more ELLs of the same grade level, all of whom have the same home language that is other than English, shall provide a sufficient number of Bilingual Education programs in the district in the following school year, such that there are Bilingual Education programs available in the district for at least seventy percent (70%) of the estimated ELL students who share the same home language other than English and grade level districtwide.
Each district shall place any new required Bilingual Education programs in a school that has not been identified as a School Under Registration Review or as a Focus or Priority School, if such school exists in the district. The district must submit a justification and receive approval from the Commissioner to place new Bilingual Education program(s) in a Focus School or in a Priority School if no Focus School exists in the district.
Each district that has an Annual Estimate of Enrollment of ELLs in which 20 or more ELLs of the same grade level assigned to a school, all of whom have the same home language that is other than English, shall provide such students with a Bilingual Education program at that school in the following school year.
If such Bilingual Education program does not exist in the school in which the student is enrolled, each ELL student shall be provided the opportunity to transfer to another school in the district that operates a Bilingual Education program that serves the same grade. level and language, An English as a New Language program must be provided to all ELLs who are not served by a Bilingual Education program.
Each district shall provide program continuity such that all ELL students can continue to receive the program type in which they were initially enrolled and, in the case of a Bilingual Education program, there were at least 15 students enrolled in a grade in such program in the district the prior school year.
The parent of an ELL student who is a new entrant shall be provided a high quality orientation session on the state standards, assessments, and school expectations for ELLs, as well as the program goals and requirements for Bilingual Education and English as a New Language programs. Districts shall individually meet with the parents of ELLs at least once a year to discuss program goals, their child’s progress, English proficiency assessment results, and language development needs in all content areas.
For each ELL student who makes below specified levels of performance on the annual English language proficiency assessment, the school district shall determine the additional support services to provide the student in accordance with the proposed rule.
Districts shall provide professional development to all teachers and administrators that specifically addresses the needs of ELL students, in accordance with the proposed rule.
Districts shall annually assess the English language proficiency of each ELL student using such assessment as prescribed by the Commissioner for this purpose.
Districts shall annually determine, in accordance with the proposed rule, if a student identified as ELL or SIFE will continue to be so identified.
PAPERWORK:
School districts must:
• maintain records in a student’s cumulative record of all forms and notices generated, completed and signed during the initial identification and review process;
• annually prepare and submit to the Commissioner an estimate of ELL enrollment by school, home language and grade;
• maintain records of signed parental notices that indicate program selection, as well as orientation session agendas and sign in sheets; and
• submit assurances, an annual comprehensive plan and an annual report that demonstrate compliance with procedures and the provision of programs and services in accordance with the proposed rule.
DUPLICATION:
The rule does not duplicate existing State or Federal requirements, and is necessary to implement Regents policy on instruction standards for English Language Learners (ELL) to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
ALTERNATIVES:
There were no significant alternatives and none were considered.
FEDERAL STANDARDS:
The rule is necessary to ensure compliance with Title I and III of the ESEA, Title IV of the Civil Rights Act of 1964, and the EEOA.
COMPLIANCE SCHEDULE:
The rule takes effect on its stated effective date. Districts will be given one school year to plan such that full implementation will come into effect by the beginning of the 2015-2016 school year, e.g., July 1, 2015.
Summary of Regulatory Flexibility Analysis
Small Businesses:
The proposed rule relates to criteria for bilingual education and English as a New Language programs for students who are English Language Learners and does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on 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:
1. EFFECT OF RULE:
The rule applies to each of the 689 public school districts and 37 boards of cooperative educational services (BOCES) in the State.
2. COMPLIANCE REQUIREMENTS:
Each district shall implement a four-step identification process to determine if a student is ELL upon initial enrollment/reentry in school, including:
(1) administration of a Home Language Questionnaire;
(2) an individual interview with the student to determine if the student shall be administered the statewide English language proficiency identification assessment and to determine the student’s grade level of literacy in their home language and grade level in math;
(3) where applicable, a process to determine whether students with disabilities shall take the statewide English language proficiency identification assessment and whether the student should be identified as ELL; and
(4) administration of a statewide English language proficiency identification assessment.
The district shall provide for review of its determination in accordance with the proposed rule.
Each district shall provide, as set forth in the proposed rule, either a Bilingual Education or English as a New Language program to ELL students.
Each district in which the sum of each school's Annual Estimate of Enrollment equals 20 or more ELLs of the same grade level, all of whom have the same home language that is other than English, shall provide a sufficient number of Bilingual Education programs in the district in the following school year, such that there are Bilingual Education programs available in the district for at least seventy percent (70%) of the estimated ELL students who share the same home language other than English and grade level districtwide.
Each district shall place any new required Bilingual Education programs in a school that has not been identified as a School Under Registration Review or as a Focus or Priority School, if such school exists in the district. The district must submit a justification and receive approval from the Commissioner to place new Bilingual Education program(s) in a Focus School or in a Priority School if no Focus School exists in the district.
Each district that has an Annual Estimate of Enrollment of ELLs in which 20 or more ELLs of the same grade level assigned to a school, all of whom have the same home language that is other than English, shall provide such students with a Bilingual Education program at that school in the following school year.
If such Bilingual Education program does not exist in the school in which the student is enrolled, each ELL student shall be provided the opportunity to transfer to another school in the district that operates a Bilingual Education program that serves the same grade level and language. An English as a New Language program must be provided to all ELLs who are not served by a Bilingual Education program.
Each district shall provide program continuity such that all ELL students can continue to receive the program type in which they were initially enrolled and, in the case of a Bilingual Education program, there were at least 15 students enrolled in a grade in such program in the district the prior school year.
The parent of an ELL student who is a new entrant shall be provided a high quality orientation session on the state standards, assessments, and school expectations for ELLs, as well as the program goals and requirements for Bilingual Education and English as a New Language programs. Districts shall individually meet with the parents of ELLs at least once a year to discuss program goals, their child’s progress, English proficiency assessment results, and language development needs in all content areas.
For each ELL student who makes below specified levels of performance on the annual English language proficiency assessment, the school district shall determine the additional support services to provide the student in accordance with the proposed rule.
Districts shall provide professional development to all teachers and administrators that specifically addresses the needs of ELL students, in accordance with the proposed rule.
Districts shall annually assess the English language proficiency of each ELL student using such assessment as prescribed by the Commissioner for this purpose.
Districts shall annually determine, in accordance with the proposed rule, if a student identified as ELL or SIFE will continue to be so identified.
Districts must:
• maintain records in a student’s cumulative record of all forms and notices generated, completed and signed during the initial identification and review process;
• annually prepare and submit to the Commissioner an estimate of ELL enrollment by school, home language and grade;
• maintain records of signed parental notices that indicate program selection, as well as orientation session agendas and sign in sheets; and
• submit assurances, an annual comprehensive plan and an annual report that demonstrate compliance with procedures and the provision of programs and services in accordance with the proposed rule.
3. PROFESSIONAL SERVICES:
The rule does not impose any additional professional service requirements.
4. COMPLIANCE COSTS:
For most areas, the rule does not impose any new costs not currently required by existing State and federal requirements. In a few areas there may be additional costs and cost savings.
Increased costs may be associated with:
• new identification process and use of qualified personnel
• review of initial determination process
• retention of identification documents
• parent notification and meeting requirements
• professional development requirement
• expanded reporting requirements
• districts newly required to provide bilingual instruction or expand their bilingual programs will incur additional costs for curriculum and instruction materials for new bilingual classes.
When fully implemented, the rule’s provisions may result in savings to districts through elimination or reduction of costs associated with:
• providing services to students incorrectly identified as ELL
• providing ELL services to students with disabilities who do not need such services
• ability of high school ELL to earn content area credit while acquiring English proficiency
• ability of ELL students to demonstrate English proficiency through multiple measures
• the rule’s provision allowing for integrated co-teaching rather than stand-alone classes, may result in increased costs, less costs, or the same costs, depending on how districts structure their programs.
SED cannot estimate actual costs or costs savings for each school district because they will vary widely from district to district, depending on the size of the school district, the number of ELL students, the languages spoken, the grades in which the students are enrolled, the number and types of programs provided, teaching staff levels, collective bargaining provisions, and how districts decide to reallocate existing resources to meet the above provisions. Most districts are or should be serving their ELLs currently, but SED does not have data on the amount of funds currently dedicated to these activities in each district. Moreover, additional funds are made available to school districts every year for their ELLs through a foundation aid formula that weights funding for ELLs at an additional.5 weight per ELL student. Additionally, many districts receive Title III funds for their ELL students to supplement services for ELL students. SED will inform districts that portions of those monies should be used to offset some of these costs.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule does not impose any additional technological requirements. Economic feasibility is addressed above under compliance costs.
6. MINIMIZING ADVERSE IMPACT:
The rule is necessary to implement Regents policy on standards for instruction of English Language Learners (ELL), to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). The majority of the requirements in the rule do not impose any compliance requirements beyond those imposed by the applicable State and federal statutes.
The proposed rule will improve the learning environment and academic outcomes for ELLs to close the achievement gap between ELLs and non-ELLs, and ensure that ELLs in New York State can graduate college and career ready. The rule has been carefully drafted to carry-over existing requirements in the proposed rule where feasible, while ensuring that State and federal requirements are met.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed rule 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.
8. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement long-range Regents policy relating to bilingual education and English as a New Language programs for students who are English Language Learners. Accordingly, there is no need for a shorter review period.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Summary of 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 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:
Each district shall implement a four-step identification process to determine if a student is ELL upon initial enrollment/reentry in school, including:
(1) administration of a Home Language Questionnaire;
(2) an individual interview with the student to determine if the student shall be administered the statewide English language proficiency identification assessment and to determine the student’s grade level of literacy in their home language and grade level in math;
(3) where applicable, a process to determine whether students with disabilities shall take the statewide English language proficiency identification assessment and whether the student should be identified as ELL; and
(4) administration of a statewide English language proficiency identification assessment.
The district shall provide for review of its determination in accordance with the proposed rule.
Each district shall provide, as set forth in the proposed rule, either a Bilingual Education or English as a New Language program to ELL students.
Each district in which the sum of each school's Annual Estimate of Enrollment equals 20 or more ELLs of the same grade level, all of whom have the same home language that is other than English, shall provide a sufficient number of Bilingual Education programs in the district in the following school year, such that there are Bilingual Education programs available in the district for at least seventy percent (70%) of the estimated ELL students who share the same home language other than English and grade level districtwide.
Each district shall place any new required Bilingual Education programs in a school that has not been identified as a School Under Registration Review or as a Focus or Priority School, if such school exists in the district. The district must submit a justification and receive approval from the Commissioner to place new Bilingual Education program(s) in a Focus School or in a Priority School if no Focus School exists in the district.
Each district that has an Annual Estimate of Enrollment of ELLs in which 20 or more ELLs of the same grade level assigned to a school, all of whom have the same home language that is other than English, shall provide such students with a Bilingual Education program at that school in the following school year.
If such Bilingual Education program does not exist in the school in which the student is enrolled, each ELL student shall be provided the opportunity to transfer to another school in the district that operates a Bilingual Education program that serves the same grade. level and language, An English as a New Language program must be provided to all ELLs who are not served by a Bilingual Education program.
Each district shall provide program continuity such that all ELL students can continue to receive the program type in which they were initially enrolled and, in the case of a Bilingual Education program, there were at least 15 students enrolled in a grade in such program in the district the prior school year.
The parent of an ELL student who is a new entrant shall be provided a high quality orientation session on the state standards, assessments, and school expectations for ELLs, as well as the program goals and requirements for Bilingual Education and English as a New Language programs. Districts shall individually meet with the parents of ELLs at least once a year to discuss program goals, their child’s progress, English proficiency assessment results, and language development needs in all content areas.
For each ELL student who makes below specified levels of performance on the annual English language proficiency assessment, the school district shall determine the additional support services to provide the student in accordance with the proposed rule.
Districts shall provide professional development to all teachers and administrators that specifically addresses the needs of ELL students, in accordance with the proposed rule.
Districts shall annually assess the English language proficiency of each ELL student using such assessment as prescribed by the Commissioner for this purpose.
Districts shall annually determine, in accordance with the proposed rule, if a student identified as ELL or SIFE will continue to be so identified.
Districts must:
• maintain records in a student’s cumulative record of all forms and notices generated, completed and signed during the initial identification and review process;
• annually prepare and submit to the Commissioner an estimate of ELL enrollment by school, home language and grade;
• maintain records of signed parental notices that indicate program selection, as well as orientation session agendas and sign in sheets; and
• submit assurances, an annual comprehensive plan and an annual report that demonstrate compliance with procedures and the provision of programs and services in accordance with the proposed rule.
The rule does not impose any additional professional service requirements on rural areas.
3. COMPLIANCE COSTS:
For most areas, the rule does not impose any new costs not currently required by existing State and federal requirements. In a few areas there may be additional costs and cost savings.
Increased costs may be associated with:
• new identification process and use of qualified personnel
• review of initial determination process
• retention of identification documents
• parent notification and meeting requirements
• professional development requirement
• expanded reporting requirements
• districts newly required to provide bilingual instruction or expand their bilingual programs will incur additional costs for curriculum and instruction materials for new bilingual classes.
When fully implemented, the rule’s provisions may result in savings to districts through elimination or reduction of costs associated with:
• providing services to students incorrectly identified as ELL
• providing ELL services to students with disabilities who do not need such services
• ability of high school ELL to earn content area credit while acquiring English proficiency
• ability of ELL students to demonstrate English proficiency through multiple measures
• the rule’s provision allowing for integrated co-teaching rather than stand-alone classes, may result in increased costs, less costs, or the same costs, depending on how districts structure their programs.
SED cannot estimate actual costs or costs savings for each school district because they will vary widely from district to district, depending on the size of the school district, the number of ELL students, the languages spoken, the grades in which the students are enrolled, the number and types of programs provided, teaching staff levels, collective bargaining provisions, and how districts decide to reallocate existing resources to meet the above provisions. Most districts are or should be serving their ELLs currently, but SED does not have data on the amount of funds currently dedicated to these activities in each district. Moreover, additional funds are made available to school districts every year for their ELLs through a foundation aid formula that weights funding for ELLs at an additional.5 weight per ELL student. Additionally, many districts receive Title III funds for their ELL students to supplement services for ELL students. SED will inform districts that portions of those monies should be used to offset some of these costs.
4. MINIMIZING ADVERSE IMPACT:
The rule is necessary to implement Regents policy on standards for instruction of English Language Learners (ELL), to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). The majority of the requirements in the proposed rule do not impose any program, service, duty or responsibility on school districts and BOCES beyond those imposed by the applicable State and federal statutes.
The proposed rule will improve the learning environment and academic outcomes for ELLs to close the achievement gap between ELLs and non-ELLs, and ensure that ELLs in New York State can graduate college and career ready. The proposed rule has been carefully drafted to carry-over existing requirements in the new rule where feasible, while ensuring that State and federal requirements are met. Since these requirements apply to all school districts and BOCES in the State, it is not possible to adopt different standards for those located in rural areas.
5. RURAL AREA PARTICIPATION:
The proposed rule was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.
6. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement long-range Regents policy relating to bilingual education and English as a New Language programs for students who are English Language Learners. Accordingly, there is no need for a shorter review period.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Job Impact Statement
The proposed rule is necessary to implement Regents policy on standards for instruction of English Language Learners (ELL), to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
Federal civil rights and education laws, as well as federal court jurisprudence, require that ELL students must be provided with equal access to all school programs and services offered to non-ELL students, including access to programs required for graduation. Education Law section 3204 and Part 154 of the Regulations of the Commissioner (8 NYCRR Part 154) contain standards for educational services provided to ELLs in New York State in order to meet these federal obligations.
In light of developments in research and best practices for ELL instruction, federal jurisprudence on civil rights obligations towards ELLs, and concerns about the achievement gap between ELLs and non-ELLs in New York State, SED engaged stakeholders to determine how Part 154 programs and services could be enhanced to better meet the needs of the State’s multilingual population.
Over the past 10 years, New York State ELL student enrollment has increased by 20%; ahead of the 18% national increase the U.S. Department of Education has reported. Currently, in New York State, over 230,000 ELLs speaking over 140 languages make up approximately 9% of the total student population. Spanish is the home language for approximately 62% of ELLs, and just over 41% were born in another country.
Our challenge in addressing the language and academic needs of ELLs is easily transparent in graduation rates. In 2013, 74% of all eligible New York State students graduated high school compared to 34% of ELLs who graduated. Out of the total State graduates, just over 35% were calculated to be college and career ready compared to just over 7% of ELL graduates calculated to be college and career ready.
In addition to graduation rates, challenges in ELA and Math outcomes between ELLs are non-English Language Learners (non-ELLs) are evident. In 2012, 58% of non-ELLs met or exceeded the ELA proficiency standard in grades 3-8. For the same year, 11.7 % of ELLs met or exceeded the standard. In 2013, with the implementation of the more rigorous NYS Common Core Learning Standards, 33% of non-ELLs met or exceeded the ELA proficiency standard in grades 3-8 with 3.2% of their ELL peers achieving the same standard.
Challenges in Math outcomes between ELLs and non-ELLs are also evident in New York State. In 2012, 67.2% of non-ELLs met or exceeded the Math proficiency standard in grades 3-8. For the same year, 34.4 % of ELLs met or exceeded the standard. In 2013, with the implementation of the more rigorous NYS Common Core Learning Standards, 32.7% of non-ELLs met or exceeded the Math proficiency standard in grades 3-8 with 9.8% of their ELL peers achieving the same standard.
The proposed rule will improve the learning environment and academic outcomes for ELLs to close the achievement gap between ELLs and non-ELLs, and ensure that ELLs can graduate college and career ready. The proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the amendment that it will not affect job and employment opportunities, no affirmative 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.
