Home » 2014 Issues » July 09, 2014 » EDU-27-14-00013-EP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
EDU-27-14-00013-EP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
7/9/14 N.Y. St. Reg. EDU-27-14-00013-EP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 27
July 09, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-27-14-00013-EP
Filing No. 556
Filing Date. Jun. 24, 2014
Effective Date. Jun. 24, 2014
Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Specific reasons underlying the finding of necessity:
At its February 2014 meeting, the Board of Regents directed the State Education Department (SED or “the Department”) to submit a request to the United States Department of Education (USDE) to amend the provisions of the approved ESEA Flexibility Waiver Request related to making adequate yearly progress (AYP); removal criteria for Priority Schools, Focus Districts and Focus Schools; and the methodology used to determine elementary-middle level English language arts and mathematics annual measurable objectives (AMO).
On April 22, 2014, the USDE approved SED’s request to reset the AMOs. At the April 2014 Regents meeting, the Board of Regents adopted a separate emergency amendment of section 100.18(i)(2) and (j) (NYS State Register; May 14, 2014; EDU-19-14-00008-EP) to implement this part of SED’s Waiver Renewal Request. It is anticipated that the rule will be presented for permanent adoption at the July 2014 Regents meeting.
Earlier this month, USDE informed SED verbally that the request to amend the removal criteria for Priority Schools, Focus Districts and Focus Schools has been approved. Consistent with the proposed Waiver Renewal Request, the proposed rule amends Commissioner's Regulations section 100.18(i)(1) and (2) to align the Commissioner's Regulations with the submitted ESEA Flexibility Waiver Renewal Request. Adoption of the proposed amendment is necessary to ensure a seamless transition to the revised school and school district accountability plan under the Waiver. The amendment will provide school districts with the ability to demonstrate improvements, using progress measures that closely align with the federal school turnaround principles described in Race To The Top and School Improvement Grant requirements.
Because the Board of Regents meets at scheduled intervals, and does not meet during the month of August, the September 15-16, 2014 Regents meeting is the earliest the proposed rule could be presented for regular (non-emergency) adoption, after publication of a Notice of Proposed Rule Making in the State Register and expiration of the 45-day public comment period required under the State Administrative Procedure Act. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the September meeting, would be October 1, 2014, the date a Notice of Adoption would be published in the State Register. However, emergency adoption of these regulations is necessary now for the preservation of the general welfare to immediately conform the Commissioner's Regulations to New York State's ESEA Flexibility Waiver Renewal Request with respect to the removal criteria for Priority Schools, Focus Districts and Focus Schools, thereby allowing the Commissioner to consider additional progress measures, including, but not limited to, Student Growth Performance (SGP) and gap reduction, in determining whether to remove Priority Schools, Focus Districts and Focus Schools from accountability status while also requiring that accountability groups for which a school or district has not been identified perform above the threshold for identification at the time of removal. Emergency action will also ensure that school districts meet school/school district accountability requirements for the 2013-2014 school year and beyond in a timely manner.
It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at its September 15-16, 2014 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.
Subject:
Elementary and Secondary Education Act (ESEA) Flexibility and school and school district accountability.
Purpose:
Conform regulations to State's ESEA Flexibility Waiver Renewal with respect to school and district removal criteria.
Text of emergency/proposed rule:
Paragraphs (1) and (2) of subdivision (i) of section 100.18 of the Regulations of the Commissioner of Education are amended, effective June 24, 2014, as follows:
(1) Removal of priority school designation. Based upon 2011-2012 and 2012-2013 school year results, and each two consecutive school year period thereafter, a school district or charter school may petition for a school to be removed from priority status if the school meets performance targets established by the commissioner, [which will at a minimum require that] and the school [have] has a combined performance index in ELA and mathematics for the all students group that exceeds the thresholds for identification as a priority school in the second year of the two year period [for two consecutive years by at least 10 index points]. For high schools, the four year or five year cohort graduation rate must equal at least [70] 60 percent for two consecutive years, the four year graduation rate cohort must equal or exceed 60 percent in the second year of the two year period and the school must meet the performance targets established by the commissioner, except for transfer high schools, for which the commissioner will establish a graduation rate goal and progress targets based on the specific conditions and circumstances present at each transfer high school. The school must also meet the participation rate requirement in ELA and mathematics for all groups for which it is accountable in the most current school year results that are being used as the basis for the petition.
(i) A school that begins to fully implement a whole-school reform model must complete implementation of the model even after removal from priority designation.
(ii) Schools that are removed from priority status before they begin implementation of a model will not be required to implement the model.
(2) Removal of focus district and focus school designation.
(i) Commencing with 2011-2012 and 2012-2013 school year results, and each consecutive two year period thereafter, a school district may petition to have its focus designation revised if the school district meets the participation requirement in ELA and math for all accountability groups and the performance targets established by the commissioner, [which will at a minimum require that] and the school district [have] has a combined performance index in ELA and mathematics for each group for which the school district [was identified] is accountable that exceeds the thresholds for identification [for two consecutive years by at least 10 index points and by at least 10 percent for all groups for which the school district was identified for graduation rate] in the second year of the two year period. For all groups for which the school district is accountable for graduation rate, the district must also exceed the graduation rate threshold for identification in both years of the two year period. The school district may petition for the removal of focus designation for any focus school in the school district that meets these same performance targets and participation rate requirements for ELA and mathematics.
(ii) . . .
(iii) . . .
(iv) . . .
(v) . . .
(vi) Removal of focus charter school designation.
(a) Commencing with 2011-2012 and 2012-13 school year results and for each consecutive two year period thereafter, a charter school may petition for the charter school to be removed from focus status if the charter school meets the participation requirement in ELA and math for all accountability groups and the performance targets established by the commissioner, which will at a minimum require that the charter school have a combined performance index in ELA and mathematics for each group for which the charter school was identified that exceeds the thresholds for identification in the second year of the two year period. The charter school must also exceed the graduation rate threshold for identification for two consecutive years [by at least 10 index points and by at least 10 percent] for all accountability groups for which the [school district was identified] charter school is accountable for graduation rate.
(b) . . .
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 21, 2014.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@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.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.
Education Law section 207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on Department.
Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law section 209 authorizes the Regents to establish secondary school examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations; and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.
Education Law section 210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.
Education Law section 215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Education Law section 305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents. Section 305(20) provides Commissioner shall have such further powers and duties as charged by the Regents.
Education Law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.
Education Law section 309 charges Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.
Education Law section 3204(3) provides for required courses of study in the public schools and authorizes SED to alter the subjects of required instruction.
Education Law section 3713(1) and (2) authorize State and school districts to accept federal law making appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the above statutory authority and is necessary to implement Regents policy relating to public school and district accountability.
3. NEEDS AND BENEFITS:
The proposed amendment is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status.
At its February 2014 meeting, the Board of Regents directed the State Education Department (SED) to submit a an ESEA Flexibility Waiver Renewal Request to the United States Department of Education (USDE) to amend the provisions of the State’s approved ESEA Flexibility Waiver Request related to making adequate yearly progress (AYP); removal criteria for Priority Schools, Focus Districts and Focus Schools; and the methodology used to determine elementary-middle level English language arts and mathematics annual measurable objectives (AMOs).
At the April 2014 Regents meeting, the Board of Regents adopted a separate emergency amendment of section 100.18(i)(2) and (j) (NYS State Register; May 14, 2014; EDU-19-14-00008-EP) to implement this part of SED’s Waiver Renewal Request. It is anticipated that the rule will be presented for permanent adoption at the July 2014 Regents meeting.
In June 2014, USDE informed SED that the request to amend the removal criteria for Priority Schools, Focus Districts and Focus Schools has been approved. Consistent with the proposed Waiver Renewal Request, the proposed rule amends Commissioner's Regulations section 100.18(i)(1) and (2) to align the Commissioner's Regulations with the submitted ESEA Flexibility Waiver Renewal Request. Adoption of the proposed amendment is necessary to ensure a seamless transition to the revised school and school district accountability plan under the Waiver. The amendment will provide school districts with the ability to demonstrate improvements, using progress measures that closely align with the federal school turnaround principles described in Race To The Top and School Improvement Grant requirements.
USDE review of the remainder of the Waiver Renewal application, relating to determinations of Adequate Yearly Progress (AYP), is still pending.
4. COSTS:
Cost to the State: none.
Costs to local government: none.
Cost to private regulated parties: none.
Cost to regulating agency for implementation and continued administration of this rule: none.
The proposed amendment does not impose any direct costs on the State, local governments, private regulated parties or the State Education Department. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment relates to State and Federal standards for public school and school district accountability and will not impose any additional program, service, duty or responsibility upon local governments. The proposed rule amends section 100.18(i)(1) and (2) of the Commissioner's Regulations to align it with the State’s ESEA Flexibility Waiver Renewal Request. The purpose of the proposed amendment is to allow the Commissioner to consider additional progress measures, including, but not limited to, Student Growth Performance (SGP) and gap reduction, in determining whether to remove Priority Schools, Focus Districts and Focus Schools from accountability status, while also requiring that accountability groups for which a school or district has not been identified perform above the threshold for identification at the time of removal.
6. PAPERWORK:
The proposed amendment does not impose any specific recordkeeping, reporting or other paperwork requirements.
7. DUPLICATION:
The proposed rule amends the Commissioner's Regulations to align them with the State’s ESEA Flexibility Waiver Renewal Request, and does not duplicate existing State or federal requirements.
8. ALTERNATIVES:
There were no significant alternatives and none were considered. The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
9. FEDERAL STANDARDS:
The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status, and does not exceed any minimum standards of the federal government for the same or similar subject areas.
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the proposed rule by its effective date. Furthermore, the Department intends to take steps to provide sufficient notice of the proposed amendment to ensure that school districts and students are made aware of the rule changes. The Department will also take steps to share a variety of resources to school districts to provide guidance with implementation.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved ESEA Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Governments:
1. EFFECT OF RULE:
The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act of 1965, as amended.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. Consistent with the proposed Waiver Renewal Request, the proposed rule amends the Commissioner's Regulations to align them with the submitted ESEA Flexibility Waiver Renewal Request. The purpose of the proposed amendment is to allow the Commissioner to consider additional progress measures, including, but not limited to, Student Growth Performance (SGP) and gap reduction, in determining whether to remove Priority Schools, Focus Districts and Focus Schools from accountability status, while also requiring that accountability groups for which a school or district has not been identified perform above the threshold for identification at the time of removal.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional services requirements.
4. COMPLIANCE COSTS:
The proposed amendment does not impose any direct costs on school districts or charter schools. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the Compliance Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended.
Consistent with the proposed Waiver Renewal Request, the proposed rule amends the Commissioner's Regulations to align them with the submitted ESEA Flexibility Waiver Renewal Request. The purpose of the proposed amendment is to allow the Commissioner to consider additional progress measures, including, but not limited to, Student Growth Performance (SGP) and gap reduction, in determining whether to remove Priority Schools, Focus Districts and Focus Schools from accountability status, while also requiring that accountability groups for which a school or district has not been identified perform above the threshold for identification at the time of removal.
The rule has been carefully drafted to meet specific federal and State requirements. The Department intends to take steps to provide sufficient notice of the proposed amendment to ensure that school districts and students are made aware of the rule changes. The Department will also take steps to share a variety of resources to school districts to provide guidance with implementation.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed rule have been provided to District Superintendents with the request that they distribute it 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 and to charter schools.
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 partially implement New York State’s approved ESEA Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. 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 16. of the Notice of Emergency Adoption and 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 amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the Elementary and Secondary Education Act (ESEA) of 1965, as amended, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment is necessary to partially implement New York State’s approved ESEA Flexibility Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. Consistent with the proposed Waiver Renewal Request, the proposed rule amends the Commissioner's Regulations to align them with the submitted ESEA Flexibility Waiver Renewal Request. The purpose of the proposed amendment is to allow the Commissioner to consider additional progress measures, including, but not limited to, Student Growth Performance (SGP) and gap reduction, in determining whether to remove Priority Schools, Focus Districts and Focus Schools from accountability status, while also requiring that accountability groups for which a school or district has not been identified perform above the threshold for identification at the time of removal.
The proposed amendment imposes no additional professional service requirements.
3. COMPLIANCE COSTS:
The proposed amendment does not impose any direct costs on school districts or charter schools in rural areas. It is anticipated that any indirect costs associated with the proposed amendment will be minimal and capable of being absorbed using existing staff and resources.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended.
Consistent with the proposed Waiver Renewal Request, the proposed rule amends the Commissioner's Regulations to align them with the submitted ESEA Flexibility Waiver Renewal Request. The purpose of the proposed amendment is to allow the Commissioner to consider additional progress measures, including, but not limited to, Student Growth Performance (SGP) and gap reduction, in determining whether to remove Priority Schools, Focus Districts and Focus Schools from accountability status, while also requiring that accountability groups for which a school or district has not been identified perform above the threshold for identification at the time of removal.
The rule has been carefully drafted to meet specific federal and State requirements. Since these requirements apply to all local educational agencies in the State that receive ESEA funds, it is not possible to adopt different standards for school districts and charter schools in rural areas. The Department intends to take steps to provide sufficient notice of the proposed amendment to ensure that school districts and students are made aware of the rule changes. The Department will also take steps to share a variety of resources to school districts to provide guidance with implementation.
5. RURAL AREA PARTICIPATION:
The proposed amendment 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 amendment is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. 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 16. of the Notice of Emergency Adoption and 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 amendment relates to public school and school district accountability and is necessary to partially implement New York State’s approved Elementary and Secondary Education Act (ESEA) Waiver Renewal Request relating to criteria for removal of Priority Schools, Focus Districts and Focus Schools from accountability status. The State and local educational agencies (LEAs) are required to comply with the ESEA as a condition to their receipt of federal funds under Title I of the ESEA Act of 1965, as amended.
The proposed amendment applies to public schools, school districts and charter schools that receive funding as LEAs pursuant to the ESEA, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
