Pupils with Limited English Proficiency (English Language Learner [ELL] programs).
Purpose:
To prescribe identification/exit procedures for students with disabilities in ELL programs.
Text of proposed rule:
Subpart 154-3 of the Regulations of the Commissioner of Education is added, effective October 1, 2014, as follows:
SUBPART 154-3
IDENTIFICATION AND EXIT PROCEDURES FOR STUDENTS WITH DISABILITIES FOR ENGLISH LANGUAGE LEARNER PROGRAMS OPERATED IN THE 2015-2016 SCHOOL YEAR AND THEREAFTER
154-3.1 Scope of Subpart and applicability.
The provisions of this Subpart shall apply to students with disabilities who are subject to the initial and reentry process and determination of English proficiency pursuant to section 154-2.3(a) of this Part and the exit procedures pursuant to section 154-2.3(m) of this Part in programs operated beginning with the 2015-2016 school year and thereafter. Except as otherwise provided in this Subpart, all other provisions of Subpart 154-2 of this Part shall apply to students with disabilities who are English Language Learners in programs operated beginning with the 2015-2016 school year.
154-3.2 Definition.
Language Proficiency Team (LPT) shall mean a committee that makes a determination regarding the initial identification of English Language Learner status for a student with a disability and exiting a student with a disability from English Language Learner status. The LPT shall be minimally comprised of a school/district administrator; a teacher or related service provider with a bilingual extension and/or a teacher of English to Speakers of Other Languages, certified pursuant to Part 80 of this Title; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent or person in parental relation. A qualified interpreter or translator of the language or mode of communication the parent or person in parental relation best understands, as defined in section 154-2.2(t) of this Part, shall be present at each meeting of the LPT.
154-3.3 Determination of whether a student with a disability shall take the statewide English language proficiency identification assessment.
(a) Initial and Reentry Process for Determination of English Proficiency. For students with disabilities who are subject to the initial and reentry process and determination of English proficiency pursuant to section 154-2.3(a) of this Part, following the administration of Steps 1 and 2 and prior to the administration of Step 3 pursuant to section 154-2.3(a) of this Part, the following provisions shall apply:
(1) During the 2015-16 school year, for a student identified as having a disability, a Language Proficiency Team (LPT), as defined in section 154-3.2 of this subpart, shall individually determine whether the student shall take the statewide English language proficiency identification assessment and whether the student should be identified as an English Language Learner.
(i) In making this determination, the LPT shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development, including, but not limited to:
(a) the results of Steps 1 and 2 in section 154-2.3(a)(1) and (2) of this Part;
(b) the student’s history of language use in school and home or community;
(c) the individual evaluation of the student conducted in accordance with the procedures in section 200.4(b)(6) of this Title, which shall include assessments administered in the student’s home language; and
(d) information provided by the Committee on Special Education (CSE) as to whether the student’s disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
(ii) Based on the evidence reviewed in subparagraph (i) of this paragraph, the LPT must determine whether the disability is the determinant factor affecting whether the student can demonstrate proficiency in English and whether the student should take the English language proficiency identification assessment. If the LPT determines that the student should not take the English language proficiency identification assessment, the LPT shall also recommend, based on the evidence reviewed in subparagraph (i) of this subdivision, whether the student should be identified as an English Language Learner, and if so, their level of English language proficiency.
(iii) If, upon review, the school principal determines, based on the recommendation of the LPT, that the student is or is not an English Language Learner, the school principal shall inform the parent or person in parental relation of this recommendation, in the language or mode of communication the parent or person in parental relation best understands.
(iv) Upon receipt of a recommendation by the school principal as to whether the student is or is not an English Language Learner, the Superintendent or his or her designee shall review the school principal’s recommendation and make a final determination to accept or reject the school principal’s recommendation within ten (10) days of receiving the school principal’s recommendation. If the Superintendent determines that the student is not an English Language Learner, notice of such determination shall be provided to the parent or person in parental relation in the language or mode of communication the parent or person in parental relation best understands within five (5) days of such final determination.
(2) Beginning in the 2016-2017 school year and thereafter, the CSE shall individually determine whether the student shall take the statewide English language proficiency identification assessment. In making this determination, the CSE shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development, including, but not limited to:
(i) the results of Steps 1 and 2 in section 154-2.3(a)(1) and (2) of this Part;
(ii) the student’s history of language use in school and home or community;
(iii) the individual evaluation of the student conducted in accordance with the procedures in section 200.4(b)(6) of this Title, which shall include assessments administered in the student’s home language; and
(iv) information provided by the parent or person in parental relation, teacher and related services providers as to whether the student’s disability is the determinant factor affecting whether the student’s ability to demonstrate English proficiency. In such cases, the CSE must include at least one individual who is knowledgeable about the student’s English language development and is certified, pursuant to Part 80 of this Title, to provide bilingual services or instruction or as a teacher of English to Speakers of Other Languages. The CSE may determine that additional evaluations or assessments of the student are necessary in order to appropriately make this determination.
(b) Exit Criteria for Students with Disabilities. For students with disabilities who have been identified as English Language Learners pursuant to section 154-3.2 of this subpart, determination of whether the student will exit English Language Learner status, pursuant to section 154-2.3(m) of this Part, the following provisions shall apply:
(1) During the 2015-2016 school year, if a parent or person in parental relation, teacher or related services provider indicates to school personnel that the student’s disability is likely the determinant factor affecting the student’s ability to meet any of the criteria in section 154-2.3(m)(1) of this Part, the Language Proficiency Team (LPT), as defined in section 154-3.2(a) of this subpart, shall meet to make an individual determination as to whether the student should continue to be identified as an English Language Learner.
(i) In making this determination, the LPT shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development, including, but not limited to:
(a) the results of existing individual evaluations of the student which were administered in the student’s home language and in English;
(b) the student’s history of language use in school and home/community;
(c) classroom progress monitoring data and the results of the student’s State assessments in English language arts;
(d) whether the student’s individualized education program has identified services needed by the student in consideration of the student’s English language development needs; and
(e) other data and information provided by the student’s teacher(s), related services providers, parent or person in parental relation and Committee on Special Education (CSE) as to whether the student’s disability was the determinant factor as to why the student did not meet the criteria in section 154-2.3(m)(1) of this Part. The LPT may also determine that additional evaluations or assessments of the student are necessary in order to appropriately make its determination.
(ii) Based on the consideration of evidence reviewed in subparagraph (i) of this paragraph, the LPT may determine that the student with a disability is no longer an English Language Learner and should be exited from English Language Learner status, subject to review by the school principal and superintendent; provided, however, that such determination shall not be based on reasons such as limited availability of qualified personnel or services pursuant to this Subpart, scheduling difficulties to meet the student’s special education needs, or costs.
(iii) If, upon review, the school principal determines, based on the recommendation of the LPT, that the student is or is not an English Language Learner, the school principal shall inform the parent or person in parental relation of this recommendation, in the language or mode of communication the parent or person in parental relation best understands.
(iv) Upon receipt from the parent or person in parental relation of a signed consent letter, in the language or mode of communication the parent or person in parental relation best understands, the principal shall submit for review and approval a recommendation regarding the student’s English Language Learner status to the Superintendent or his or her designee. A recommendation to the Superintendent shall not be made by the principal if the parent or person in parental relation does not submit a signed letter of consent, in the language or mode of communication the parent or person in parental relation best understands.
(v) Upon receipt of a recommendation by the school principal of the English Language Learner status to the Superintendent, the Superintendent or his or her designee shall review the school principal’s recommendation and make a final determination to accept or reject the principal’s recommendation within ten (10) days of receiving the school principal’s recommendation.
(2) Beginning with the 2016-2017 school year and thereafter, if a parent or person in parental relation, teacher or related service provider indicates to school personnel that the student’s disability is likely the determinant factor as to why the student did not meet the criteria in section 154-2.3(m)(1) of this Part, the Committee on Special Education (CSE), shall individually determine whether the disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
(i) In making this determination, the CSE shall, in accordance with guidance prescribed by the Commissioner, consider evidence of the student’s English language development including, but not limited to:
(a) the results of existing individual evaluations of the student which were administered in the student’s home language and in English;
(b) the student’s history of language use in school and home or community;
(c) classroom progress monitoring data and the results of the student’s State assessments in English language arts;
(d) whether the student’s individualized education program has identified services needed by the student in consideration of the student’s English language development needs; and
(e) other data and information provided by the student’s teacher(s), related service providers, and/or parent or person in parental relation, as to whether the student’s disability was the determinant factor as to why the student did not meet the criteria in section 154-2.3(m)(1) of this Part. The CSE may also determine that additional evaluations or assessments of the student are necessary in order to appropriately make its determination.
(ii) Based on the evidence reviewed in subparagraph (i) of this paragraph, the CSE may determine that the student with a disability is no longer an English Language Learner and should be exited from English Language Learner status; provided, however, that such determination shall not be based on reasons such as limited availability of qualified personnel or services pursuant to this Part, scheduling difficulties to meet the student’s special education needs, or costs.
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.
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 207 empowers the Regents and the Commissioner of Education to adopt rules and regulations to carry out State laws regarding education and the functions and duties conferred on the State Education 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 215 authorizes the Regents and the Commissioner to require school districts to prepare and submit reports containing such information as they may prescribe.
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 execute all educational policies determined by the Regents.
Education Law section 2117(1) empowers the Regents and the Commissioner to require school districts to submit any information they deem appropriate.
Education Law section 4403 outlines the Department's and a school district's responsibilities regarding special education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as the Commissioner deems in their best interests.
Education Law section 3204(2) and (2-a) provide for instructional programs for pupils with limited English proficiency (LEP) to be conducted in accordance with regulations of the Commissioner. Education Law section 3204(3) authorizes the Commissioner to establish standards for the instruction of LEP children, and section 3204(6) requires the Commissioner to establish standards by regulation.
LEGISLATIVE OBJECTIVES:
The rule is consistent with the above statutory authority and is necessary to implement policy adopted by the Regents relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, in order 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, as well as federal court jurisprudence, require that English Language Learner (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 Commissioner’s Regulations (8 NYCRR) contain standards for educational services provided to ELLs in New York State 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, concerns about the achievement gap between ELLs with disabilities, ELLs and non-ELLs in New York, and concerns about over identification of ELLs with disabilities, the Department engaged stakeholders to determine how the Part 154 programs and services could be enhanced to better meet the needs of ELL students with disabilities.
According to the National Institute of Child Health, it is estimated that 9% of all ELL students in U.S. public schools are identified as ELLs with disabilities. In New York State, 19.6% of ELLs are classified with disabilities, and of which 80.4% have a home language of Spanish. Regarding disability classifications in New York, 40% of ELLs with disabilities are classified with Speech Language Impairment, and 38% are classified with a Learning Disability. According to the National Center for Education Statistics (NCES), the percentage distribution nationally of all children with a disability classification shows 36% are classified with a Learning Disability, and 21% with Speech Language Impairments. This data demonstrates the need to improve identification and exit procedures for ELL students with disabilities, as New York significantly over identifies these students as compared to national statistics.
COSTS:
(a) Costs to State government: The rule is necessary to ensure compliance with Education Law sections 3204 and 4403, Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, and the Equal Educational Opportunities Act of 1974 (EEOA), and does not impose any costs on State government, including the State Education Department, beyond those costs imposed by the statutes.
(b) Costs to local government: The rule imposes costs on school districts and boards of cooperative educational services (BOCES) for the 2015-16 school year only, associated with the formation of a Language Proficiency Team (LPT) during that school year. The costs are based on the following: (1) an estimated hourly rate for teachers of $46.46 (based on an average annual teacher salary of $66,902 divided by 1,440 hours per school year); (2) an estimated hourly rate for principals of $71.90 (based on an average annual principal salary of $126,544 divided by 1,760 hours per school year); and (3) an estimated hourly rate for superintendents of $85.71 (based on a median annual superintendent of schools salary of $150,850 divided by 1,760 hours per school year). The estimated costs below assume that school districts/BOCES will need to pay for extra time for personnel at current rates.
The Department estimates that a teacher, administrator and special education director will spend approximately 3 hours preparing for and conducting the meeting. In addition the Department estimates that the principal will spend 1 hour reviewing the recommendation and the superintendent will spend 1 hour reviewing the recommendation. Based on the estimated hourly rates described above, the Department estimates that the LPT process for each ELL student with a disability will cost a school district/BOCES $418.14 for the LPT meeting and $71.90 for the principal review and $85.71 superintendent review each for both the identification and exit process.
It is anticipated that the Committee on Special Education (CSE) process, which begins in 2016-17, any additional costs to the CSE will be minimal, and capable of being absorbed by existing staff, fiscal and other resources.
It is also anticipated that school districts will experience costs savings as a result of less students with disabilities being over identified as ELL and requiring significant additional services and programming.
(c) Costs to private regulated parties: None. The rule applies to school districts and BOCES.
(d) Costs to regulating agency for implementation and continued administration of this rule: See above Costs to State government.
LOCAL GOVERNMENT MANDATES:
Initial and Reentry Process for Determination of English Proficiency.
School districts must form a Language Proficiency Team (LPT) to make recommendations regarding the initial identification of ELL status for a student with a disability and exiting a student with a disability from ELL status. The LPT shall include a school/district administrator; a certified teacher or related service provider with a bilingual extension and/or a certified teacher of English to Speakers of Other Languages; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent/person in parental relation. A qualified interpreter/translator of the language or mode of communication the parent/person in parental relation best understands shall be present at each LPT meeting.
During the 2015-16 school year, for a student identified as having a disability, the LPT shall individually determine whether a the student shall take the statewide English language proficiency identification assessment and whether the student should be identified as ELL. If upon review, the school principal determines that the student is or is not ELL, he/she shall inform the parent/person in parental relation of this recommendation in the language or mode of communication the parent/person in parental relation best understands. Upon receipt of the principal’s recommendation, the superintendent or designee shall review the principal’s recommendation and make a final determination to accept or reject the recommendation within 10 days of receipt. If the superintendent determines the student is not ELL, notice of such determination shall be provided to the parent/person in parental relation in the language or mode of communication the parent/person in parental relation best understands within 5 days of the final determination.
Beginning in the 2016-2017 school year, the CSE shall individually determine whether the student shall take the statewide English language proficiency identification assessment.
Exit Criteria for Students with Disabilities.
During the 2015-2016 school year, if a parent/person in parental relation, teacher or related services provider indicates to school personnel that the student’s disability is likely the determinant factor affecting the student’s ability to meet any of the criteria for exiting ELL status, the LPT shall meet to make an individual determination as to whether the student should continue to be identified as ELL. If upon review of the LPT’s recommendation, the principal determines that the student is or is not an ELL, he/she shall inform the parent/person in parental relation of this recommendation in the language or mode of communication the parent/person in parental relation best understands. Upon receipt from the parent/person in parental relation of a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, the principal shall submit for review and approval a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee. Upon receipt of a recommendation by the school principal of the ELL status to the superintendent, the superintendent or superintendent’s designee shall review the principal’s recommendation and make a final determination to accept or reject such recommendation within ten (10) days of receiving such recommendation.
Beginning with the 2016-2017 school year, if a parent/person in parental relation, teacher or related service provider indicates to school personnel that the student’s disability is likely the determinant factor as to why the student did not meet the criteria for exiting ELL status, the CSE shall individually determine whether the disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
PAPERWORK:
The LPT and principal shall issue written recommendations, and the superintendent of schools shall issue a written determination, regarding the initial identification of ELL status for a student with a disability and exiting a student with a disability from ELL status.
Parents/persons in parental relation must submit a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, in order for a principal to submit a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee for review and approval.
DUPLICATION:
The rule is necessary to ensure compliance with Education Law sections 3204 and 4403, Title I and III of the ESEA, Title IV of the Civil Rights Act of 1964, and the EEOA and does not duplicate existing State or Federal requirements.
ALTERNATIVES:
There were no significant alternatives and none were considered.
FEDERAL STANDARDS:
The rule is necessary to ensure compliance with Education Law sections 3204 and 4403, Title I and III of the ESEA, Title IV of the Civil Rights Act of 1964, and the EEOA. These laws require states and school districts to provide ELL students with appropriate services to overcome language barriers. In addition, federal jurisprudence in landmark cases such as Castañeda v. Pickard established standards to ensure compliance with EEOA. For example, the Castañeda standard mandates that programs for language-minority students must be (1) based on a sound educational theory, (2) implemented effectively with sufficient resources and personnel, and (3) evaluated to determine whether they are effective in helping students overcome language barriers.
In addition, recent U.S. Department of Justice findings establish high standards to ensure compliance with EEOA, particularly with regard to the identification and exit of ELL students with disabilities such as: Settlement Agreement 2013 between the United States and the Prince William County School District; and Settlement Agreement 2003 between the United States and The Bound Brook, N.J. Board of Education.
COMPLIANCE SCHEDULE:
The rule will become effective on its stated effective date. Districts and BOCES 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.
Regulatory Flexibility Analysis
Small Businesses:
The proposed rule relates to criteria to identify and exit students as English Language Learners (ELL) with disabilities 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 proposed rule applies to each of the 689 public school districts and 37 boards of cooperative educational services (BOCES) in the State.
2. COMPLIANCE REQUIREMENTS:
Initial and Reentry Process for Determination of English Proficiency.
School districts must form a Language Proficiency Team (LPT) to make recommendations regarding the initial identification of ELL status for a student with a disability and exiting a student with a disability from ELL status. The LPT shall include a school/district administrator; a certified teacher or related service provider with a bilingual extension and/or a certified teacher of English to Speakers of Other Languages; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent/person in parental relation. A qualified interpreter/translator of the language or mode of communication the parent/person in parental relation best understands shall be present at each LPT meeting.
During the 2015-16 school year, for a student identified as having a disability, the LPT shall individually determine whether a the student shall take the statewide English language proficiency identification assessment and whether the student should be identified as ELL. If upon review, the school principal determines that the student is or is not ELL, he/she shall inform the parent/person in parental relation of this recommendation in the language or mode of communication the parent/person in parental relation best understands. Upon receipt of the principal’s recommendation, the superintendent or designee shall review the principal’s recommendation and make a final determination to accept or reject the recommendation within 10 days of receipt. If the superintendent determines the student is not ELL, notice of such determination shall be provided to the parent/person in parental relation in the language or mode of communication the parent/person in parental relation best understands within 5 days of the final determination.
Beginning in the 2016-2017 school year, the CSE shall individually determine whether the student shall take the statewide English language proficiency identification assessment.
Exit Criteria for Students with Disabilities.
During the 2015-2016 school year, if a parent/person in parental relation, teacher or related services provider indicates to school personnel that the student’s disability is likely the determinant factor affecting the student’s ability to meet any of the criteria for exiting ELL status, the LPT shall meet to make an individual determination as to whether the student should continue to be identified as ELL. If upon review of the LPT’s recommendation, the principal determines that the student is or is not an ELL, he/she shall inform the parent/person in parental relation of this recommendation in the language or mode of communication the parent/person in parental relation best understands. Upon receipt from the parent/person in parental relation of a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, the principal shall submit for review and approval a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee. Upon receipt of a recommendation by the school principal of the ELL status to the superintendent, the superintendent or superintendent’s designee shall review the principal’s recommendation and make a final determination to accept or reject such recommendation within ten (10) days of receiving such recommendation.
Beginning with the 2016-2017 school year, if a parent/person in parental relation, teacher or related service provider indicates to school personnel that the student’s disability is likely the determinant factor as to why the student did not meet the criteria for exiting ELL status, the CSE shall individually determine whether the disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
The LPT and principal shall issue written recommendations, and the superintendent of schools shall issue a written determination, regarding the initial identification of ELL status for a student with a disability and exiting a student with a disability from ELL status.
3. PROFESSIONAL SERVICES:
The proposed rule does not impose any additional professional service requirements on local governments.
4. COMPLIANCE COSTS:
The rule imposes costs on school districts and BOCES for the 2015-16 school year only, associated with the formation of a Language Proficiency Team (LPT) during that school year. The costs are based on the following: (1) an estimated hourly rate for teachers of $46.46 (based on an average annual teacher salary of $66,902 divided by 1,440 hours per school year); (2) an estimated hourly rate for principals of $71.90 (based on an average annual principal salary of $126,544 divided by 1,760 hours per school year); and (3) an estimated hourly rate for superintendents of $85.71 (based on a median annual superintendent of schools salary of $150,850 divided by 1,760 hours per school year). The estimated costs below assume that school districts/BOCES will need to pay for extra time for personnel at current rates.
The Department estimates that a teacher, administrator and special education director will spend approximately 3 hours preparing for and conducting the meeting. In addition the Department estimates that the principal will spend 1 hour reviewing the recommendation and the superintendent will spend 1 hour reviewing the recommendation. Based on the estimated hourly rates described above, the Department estimates that the LPT process for each ELL student with a disability will cost a school district/BOCES $418.14 for the LPT meeting and $71.90 for the principal review and $85.71 superintendent review each for both the identification and exit process.
It is anticipated that the Committee on Special Education (CSE) process, which begins in 2016-17, any additional costs to the CSE will be minimal, and capable of being absorbed by existing staff, fiscal and other resources.
It is also anticipated that school districts will experience costs savings as a result of less students with disabilities being over identified as ELL and requiring significant additional services and programming.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any additional technological requirements on school districts. Economic feasibility is addressed above under compliance costs.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement policy adopted by the Board of Regents relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act, 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 (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, concerns about the achievement gap between ELLs with disabilities, ELLs and non-ELLs in New York State, and concerns about over identification of ELLs with disabilities, the Department began to engage stakeholders to determine how the programs and services required in Part 154 could be enhanced to better meet the needs of students who are English Language Learners and also students with disabilities.
According to the National Institute of Child health it is estimated that there 9% of all ELL students in U.S. public schools are identified as ELLs with disabilities. In New York State 19.6% of ELLs are classified with disabilities, and of which 80.4% have a home language of Spanish. In terms of disability classifications in New York State, 40% of ELLs with disabilities are classified with Speech Language Impairment, and 38% are classified with a Learning disability. According to the National Center for Education Statistics (NCES), the percentage distribution nationally of all children with a disability classification shows 36% are classified with a Learning Disability, and 21% with Speech Language Impairments. This data demonstrates the need to improve identification and exit procedures for ELLs with disabilities, as New York State significantly over identifies these students as compared to national statistics.
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.
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 amendment 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.
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:
Initial and Reentry Process for Determination of English Proficiency.
School districts must form a Language Proficiency Team (LPT) to make recommendations regarding the initial identification of ELL status for a student with a disability and exiting a student with a disability from ELL status. The LPT shall include a school/district administrator; a certified teacher or related service provider with a bilingual extension and/or a certified teacher of English to Speakers of Other Languages; the director of special education or individual in a comparable title (or his or her designee); and the student’s parent/person in parental relation. A qualified interpreter/translator of the language or mode of communication the parent/person in parental relation best understands shall be present at each LPT meeting.
During the 2015-16 school year, for a student identified as having a disability, the LPT shall individually determine whether a the student shall take the statewide English language proficiency identification assessment and whether the student should be identified as ELL. If upon review, the school principal determines that the student is or is not ELL, he/she shall inform the parent/person in parental relation of this recommendation in the language or mode of communication the parent/person in parental relation best understands. Upon receipt of the principal’s recommendation, the superintendent or designee shall review the principal’s recommendation and make a final determination to accept or reject the recommendation within 10 days of receipt. If the superintendent determines the student is not ELL, notice of such determination shall be provided to the parent/person in parental relation in the language or mode of communication the parent/person in parental relation best understands within 5 days of the final determination.
Beginning in the 2016-2017 school year, the CSE shall individually determine whether the student shall take the statewide English language proficiency identification assessment.
Exit Criteria for Students with Disabilities.
During the 2015-2016 school year, if a parent/person in parental relation, teacher or related services provider indicates to school personnel that the student’s disability is likely the determinant factor affecting the student’s ability to meet any of the criteria for exiting ELL status, the LPT shall meet to make an individual determination as to whether the student should continue to be identified as ELL. If upon review of the LPT’s recommendation, the principal determines that the student is or is not an ELL, he/she shall inform the parent/person in parental relation of this recommendation in the language or mode of communication the parent/person in parental relation best understands. Upon receipt from the parent/person in parental relation of a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, the principal shall submit for review and approval a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee. Upon receipt of a recommendation by the school principal of the ELL status to the superintendent, the superintendent or superintendent’s designee shall review the principal’s recommendation and make a final determination to accept or reject such recommendation within ten (10) days of receiving such recommendation.
Beginning with the 2016-2017 school year, if a parent/person in parental relation, teacher or related service provider indicates to school personnel that the student’s disability is likely the determinant factor as to why the student did not meet the criteria for exiting ELL status, the CSE shall individually determine whether the disability is the determinant factor affecting whether the student can demonstrate proficiency in English.
The LPT and principal shall issue written recommendations, and the superintendent of schools shall issue a written determination, regarding the initial identification of ELL status for a student with a disability and exiting a student with a disability from ELL status.
Parents/persons in parental relation must submit a signed consent letter, in the language or mode of communication the parent/person in parental relation best understands, in order for a principal to submit a recommendation regarding the student’s ELL status to the superintendent or superintendent’s designee for review and approval.
The proposed rule does not impose any additional professional service requirements on rural areas.
3. COMPLIANCE COSTS:
The rule imposes costs on school districts and BOCES for the 2015-16 school year only, associated with the formation of a Language Proficiency Team (LPT) during that school year. The costs are based on the following: (1) an estimated hourly rate for teachers of $46.46 (based on an average annual teacher salary of $66,902 divided by 1,440 hours per school year); (2) an estimated hourly rate for principals of $71.90 (based on an average annual principal salary of $126,544 divided by 1,760 hours per school year); and (3) an estimated hourly rate for superintendents of $85.71 (based on a median annual superintendent of schools salary of $150,850 divided by 1,760 hours per school year). The estimated costs below assume that school districts/BOCES will need to pay for extra time for personnel at current rates.
The Department estimates that a teacher, administrator and special education director will spend approximately 3 hours preparing for and conducting the meeting. In addition the Department estimates that the principal will spend 1 hour reviewing the recommendation and the superintendent will spend 1 hour reviewing the recommendation. Based on the estimated hourly rates described above, the Department estimates that the LPT process for each ELL student with a disability will cost a school district/BOCES $418.14 for the LPT meeting and $71.90 for the principal review and $85.71 superintendent review each for both the identification and exit process.
It is anticipated that the Committee on Special Education (CSE) process, which begins in 2016-17, any additional costs to the CSE will be minimal, and capable of being absorbed by existing staff, fiscal and other resources.
It is also anticipated that school districts will experience costs savings as a result of less students with disabilities being over identified as ELL and requiring significant additional services and programming.
4. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement policy adopted by the Board of Regents relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act, Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). Because the rule implements Regents policy that 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.
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) 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, concerns about the achievement gap between ELLs with disabilities, ELLs and non-ELLs in New York State, and concerns about over identification of ELLs with disabilities, the Department began to engage stakeholders to determine how the programs and services required in Part 154 could be enhanced to better meet the needs of students who are English Language Learners and also students with disabilities.
According to the National Institute of Child health it is estimated that there 9% of all ELL students in U.S. public schools are identified as ELLs with disabilities. In New York State 19.6% of ELLs are classified with disabilities, and of which 80.4% have a home language of Spanish. In terms of disability classifications in New York State, 40% of ELLs with disabilities are classified with Speech Language Impairment, and 38% are classified with a Learning disability. According to the National Center for Education Statistics (NCES), the percentage distribution nationally of all children with a disability classification shows 36% are classified with a Learning Disability, and 21% with Speech Language Impairments. This data demonstrates the need to improve identification and exit procedures for ELLs with disabilities, as New York State significantly over identifies these students as compared to national statistics.
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.
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 amendment 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 amends the procedures for identifying and exiting students with disabilities as English Language Learners (ELL). 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 addition, Education Law section 4403 outlines the Department's and a school district's responsibilities regarding special education programs/ and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as Commissioner deems in their best interests.
In light of developments in research and best practices for ELL instruction, federal jurisprudence on civil rights obligations towards ELLs, concerns about the achievement gap between ELLs with disabilities, ELLs and non-ELLs in New York State, and concerns about over identification of ELLs with disabilities, the proposed rule improves identification and exit procedures for students with disabilities who are also English Language Learners.
According to the National Institute of Child Health it is estimated that 9% of all ELL students in U.S. public schools are identified as ELLs with disabilities. In New York State 19.6% of ELLs are classified with disabilities, and of which 80.4% have a home language of Spanish. In terms of disability classifications in New York State, 40% of ELLs with disabilities are classified with Speech Language Impairment, and 38% are classified with a Learning disability. According to the National Center for Education Statistics (NCES), the percentage distribution nationally of all children with a disability classification shows 36% are classified with a Learning Disability, and 21% with Speech Language Impairments. This data demonstrates the need to improve identification and exit procedures for ELLs with disabilities, as New York State significantly over identifies these students as compared to national statistics.
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.
