Technical amendment to clarify award of local diploma pursuant to appeals process.
Text of proposed rule:
Subparagraph (i) of paragraph (7) of subdivision (b) of section 100.5 of the Regulations of the Commissioner of Education is amended, effective November 9, 2011, as follows:
(i) Except as provided in subparagraphs (vi), (vii) and (viii) of this paragraph, and paragraph (7) of subdivision (d) of this section, for students first entering grade nine in the 2001-2002 school year and thereafter, there shall be no diplomas or certificates other than the following:
(a) . . .
(b) . . .
(c) . . .
(d) . . .
(e) . . .
Text of proposed rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 473-8296, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
John B. King, Jr., Commissioner of Education, State Education Department, State Education Building, Room 125, 89 Washington Ave., Albany, NY 12234, (518) 474-3862, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative office, and charges the Department with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 empowers the Board of regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.
Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law section 209 authorizes the Regents to establish secondary school examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.
Education Law section 210 authorizes the Regents to register domestic and foreign institutions in terms of New York 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 the professions in New York State.
Education Law section 215 provides the Commissioner with the authority to require schools and school districts to submit reports containing such information as the Commissioner shall 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.
Education Law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.
Education Law section 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of education.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statute and is necessary to implement policy enacted by the Board of Regents relating to the award of Regents and local diplomas pursuant to an appeals process.
3. NEEDS AND BENEFITS:
The proposed amendment is necessary in order to resolve an inconsistency in the Commissioner's Regulations relating to Regents and local diplomas.
In July 2005, the Board of Regents amended Commissioner's Regulations section 100.5(b)(7) to eliminate the local diploma for general education students, beginning with students who entered grade 9 in 2008. However, at the same time, the Board of Regents also added a new section 100.5(d)(7) to permit general education students, who meet certain criteria and who enter 9th grade in September 2005 or thereafter, to receive a local diploma through an appeals process. This provision contains no sunset date.
Specifically, section 100.5(d)(7) allows a general education student who fails to attain a score of 65 or above on a required Regents examination for graduation to appeal his or her score if the student:
• has scored within three points of 65 on a required Regents exam for graduation and has a course average of at least 65 in the subject area of the examination;
• has received academic intervention services by the school in the subject area of the examination;
• has an attendance rate of at least 95 percent for the school year during which the student last took the examination;
• has attained a course average in the subject area of the examination that meets or exceeds the required passing grade by the school; and
• is recommended for an exemption to the passing score by his or her teacher or department chairperson in the subject area of the examination.
Students who successfully appeal one Regents Exam receive a Regents diploma, and students who successfully appeal two Regents Exams receive a local diploma.
At present, section 100.5(b)(7) and 100.5(d)(7) are inconsistent in that 100.5(b)(7) does not allow for local diplomas, beginning with students who enter grade 9 in 2008, but 100.5(d)(7) permits students who first enter grade nine in September 2005 or thereafter to earn a local diploma through an appeals process as specified in the regulation.
The proposed amendment would resolve this inconsistency by amending 100.5(b)(7)(i) to clarify that the local diploma option under 100.5(d)(5) continues to be available under the appeals process for general education students. Continuation of the local diploma option is appropriate for the following reasons:
• Under local scoring procedures that were in effect until this school year, students were from two to six times more likely to earn a score of 65 than to earn a score between 62 and 64 on those Regents examinations most typically used to meet graduation requirements. Starting with the exams administered in June 2011, the Department revised its rescoring policies in light of this research. The Department anticipates having larger numbers of students scoring from 62-64 on Regents Exams in the future. Consequently, SED recommends having a formal appeals process to address this situation.
• Maintaining the option of a local diploma for general education students would allow SED to continue to define the local diploma as a "standard diploma" for computing graduation rates for No Child Left Behind (NCLB) accountability purposes since it can be earned by both general education students and students with disabilities.
4. COSTS:
(a) Costs to State government: none.
(b) Costs to local government: none.
(c) Costs to private regulated parties: none.
(d) Costs to regulating agency for implementation and continued administration of this rule: none.
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements or costs.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district, or local government.
6. PAPERWORK:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new reporting or other paperwork requirements.
7. DUPLICATION:
The proposed amendment does not duplicate existing State or federal regulations.
8. ALTERNATIVES:
There were no significant alternatives and none were considered. The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements or costs.
9. FEDERAL STANDARDS:
There are no related federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipated regulated parties will be able to achieve compliance with the proposed rule by its effective date. The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements or costs.
Regulatory Flexibility Analysis
Small businesses:
The proposed amendment relates to the award of Regents and local diplomas to students pursuant to an appeals process, 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 each school district within the State.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements on school districts.
3. PROFESSIONAL SERVICES:
The proposed amendment imposes no additional professional service requirements on school districts.
4. COMPLIANCE COSTS:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance costs on school districts.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any technological requirements or costs on school districts or registered nonpublic schools.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements or costs on school districts.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed amendment were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements or professional service requirements on school districts.
3. COMPLIANCE COSTS:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance costs on school districts.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment merely clarifies an inconsistency in the Commissioner's Regulations and does not impose any new compliance requirements or costs on school districts.
5. RURAL AREA PARTICIPATION:
Comments on the proposed rule were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
Job Impact Statement
The proposed amendment relates to the award of Regents and local diplomas pursuant to an appeals process, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have a positive impact, or 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.
