Specific reasons underlying the finding of necessity:
Pursuant to the New York State Constitution and the Education Law, the Board of Regents is responsible for the general supervision of all educational activities within the State. Included among these activities is the authority to, for example, establish “examinations as to attainments in learning” (Education Law § 207) and “examinations in studies furnishing a suitable standard of graduation” (Education Law § 209).
The proposed amendment is necessary to clarify the Board of Regents’ authority to approve the State-designated performance levels or cut scores for determining proficiency on State assessments administered to students in the elementary and secondary grades, which are established by the Commissioner.
The Board of Regents adopted the Common Core State Standards (CCSS) for English Language Arts & Literacy and Mathematics at its July 2010 meeting and incorporated New York-specific additions, creating the Common Core Learning Standards (CCLS), at its January 2011 meeting. The first State assessments to measure student progress on the CCLS were administered in April 2013 for Grades 3-8 ELA and math. Following the administration of the new tests, the Department will use a research-based methodology to set cut scores and performance standards for the tests, which must be approved by the Board of Regents. Beginning with ELA and Algebra I in June 2014, Regents Examinations that measure student progress on the CCLS will be phased in during a transition period. Similar performance-standard setting processes will occur after the initial administration of each new Regents Examination.
The proposed amendment was adopted as an emergency rule at the April 22-23, 2013 Regents meeting, effective April 23, 2013. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 8, 2013.
Because the Board of Regents meets at fixed intervals, the earliest the proposed amendment can be presented for permanent adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the July 22-23, 2013 Regents meeting. Furthermore, pursuant to SAPA, the earliest effective date of the proposed amendment, if adopted at the July meeting, would be August 7, 2013, the date a Notice of Adoption would be published in the State Register. However, the April emergency rule will expire on July 21, 2013, 90 days from its filing with the Department of State on April 23, 2013. A lapse in the effective date of the rule may disrupt administration of State Assessments, other than Regents examinations, for elementary and secondary education.
Emergency action is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the April 22-23, 2013 Regents meeting remains continuously in effect until the effective date of its permanent adoption.
It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption on a permanent basis at the July 22-23, 2013 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by SAPA.
Subject:
State student assessments in the elementary and secondary grades.
Purpose:
To clarify procedures for establishment of cut scores and performance standards for determining proficiency on State Assessments.
Text of emergency rule:
1. The Title of Part 8 of the Rules of the Board of Regents is amended, effective July 22, 2013, to read as follows:
REGENTS EXAMINATIONS AND OTHER STATE ASSESSMENTS
2. Section 8.3 of the Rules of the Board of Regents is amended, effective July 22, 2013, to read as follows:
8.3 Passing mark or State designated performance level
1. Except as [provided] prescribed in section [100.5(a)(5)(i)] 100.5 of this Title, the minimum passing [mark] score in Regents examinations shall be 65 [percent] or such other minimum passing score as approved by the Board of Regents.
2. The State designated performance level or cut score for determining proficiency on all State student assessments in the elementary and secondary grades, other than Regents examinations, shall be established by the Commissioner subject to approval by the Board of Regents.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-19-13-00005-EP, Issue of May 8, 2013. The emergency rule will expire September 19, 2013.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, 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
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law § 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 § 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 § 208 authorizes the Regents to establish examinations as to attainments in learning, and award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law § 209 authorizes the regents to establish examinations in studies furnishing a suitable standard of graduation therefrom and of admission to colleges, and to confer certificates or diplomas on students who satisfactorily pass such examinations.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the Regents authority under the above statutes, in particular, their authority to establish "examinations as to attainments in learning" (Education Law § 208) and "examinations in studies furnishing a suitable standard of graduation" (Education Law § 209).
3. NEEDS AND BENEFITS:
Currently, the Rules of the Board of Regents and the Regulations of the Commissioner of Education do not address the process for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education other than the Regents examinations. The Department’s past practice has been to submit the State-designated performance levels or cut scores to the Board of Regents for their review, but questions have been raised about the process that will be used for designation of the State-designated performance levels for the 2012-2013 grades 3-8 State assessments that are being administered in April 2013. The proposed amendment to the Rules of the Board of Regents would codify the Department’s past practice by clarifying that the State-designated performance level or cut score for determining proficiency on all State assessments administered to students in the elementary and secondary grades, other than Regents examinations, shall be established by the Commissioner subject to approval by the Board of Regents.
The Board of Regents adopted the Common Core State Standards (CCSS) for English Language Arts & Literacy and Mathematics at its July 2010 meeting and incorporated New York-specific additions, creating the Common Core Learning Standards (CCLS), at its January 2011 meeting. The first State assessments to measure student progress on the CCLS are being administered in April 2013 for Grades 3-8 ELA and math. Following the administration of the new tests, the Department will use a research-based methodology to set cut scores and performance standards for the tests, which must be approved by the Board of Regents. Beginning with ELA and Algebra I in June 2014, common-core aligned Regents Examinations will be phased in during a transition period. Similar performance-standard setting processes will occur after the initial administration of each new Regents Examination.
With respect to Regents examinations, the passing scores are specified in section 100.5 of the Regulations of the Commissioner. The proposed amendment makes needed technical changes to the existing language of Regents Rule 8.3, which currently references section 100.5(a)(5)(i) only, to broaden the cross-reference to capture provisions recently added to section 100.5 related to the special education safety net which specify passing scores for certain students. The amendments also clarify that while 65 remains the minimum passing score on Regents examinations, with the exceptions set forth in section 100.5, it is no longer a percentage. Finally, in order to reflect the upcoming transition to Regents Exams that measure student progress on the CCLS, which may not be scored on a 0-100 scale, the amendment clarifies that the Board of Regents may prescribe a different minimum passing score.
4. COSTS:
The proposed amendment will not impose any costs on the State, local governments, private regulated parties, or the State Education Department.
The proposed amendment merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any program, service, duty or responsibility upon school districts, charter schools or other local governments. The proposed amendment merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
6. PAPERWORK:
The proposed amendment does not impose any additional reporting, record keeping or other paperwork requirements upon school districts or charter schools. The proposed amendment merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
7. DUPLICATION:
The proposed amendment does not duplicate any existing State or Federal requirements.
8. ALTERNATIVES:
There are no significant alternatives and none were considered. The proposed amendment merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
9. FEDERAL STANDARDS:
There are no applicable Federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipated that compliance may be achieved by the effective date of the proposed amendment, which does not impose any additional costs or compliance requirements on local governments and private regulated parties, and merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments of student proficiency in elementary and secondary education other than Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents.
The proposed amendment 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, board of cooperative educational services (BOCES) and charter schools in the State. At present, there are 695 school districts (including New York City) and 37 BOCES. There are currently approximately 190 charter schools.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements on regulated parties but merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes needed technical changes to the existing language of Regents Rule 8.3, which currently references section 100.5(a)(5)(i) only, to broaden the cross-reference to capture provisions recently added to section 100.5 related to the special education safety net which specify passing scores for certain students. The amendments also clarify that while 65 remains the minimum passing score on Regents examinations, with the exceptions set forth in section 100.5, it is no longer a percentage. Finally, in order to reflect the upcoming transition to Regents Exams that measure student progress on the CCLS, which may not be scored on a 0-100 scale, the amendment clarifies that the Board of Regents may prescribe a different minimum passing score.
3. PROFESSIONAL SERVICES:
The proposed amendment will not impose any additional professional services requirements.
4. COMPLIANCE COSTS:
The proposed amendment does not impose any additional costs on regulated parties but merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any additional costs or technological requirements.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment does not impose any additional compliance requirements or costs on regulated parties but merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
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 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 merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment does not impose any additional compliance requirements or costs on regulated parties. 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 amendment applies to all school districts, boards of cooperative educational services (BOCES) and charter schools 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. There is currently one charter school located in a rural area.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional compliance requirements on regulated parties but merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes needed technical changes to the existing language of Regents Rule 8.3, which currently references section 100.5(a)(5)(i) only, to broaden the cross-reference to capture provisions recently added to section 100.5 related to the special education safety net which specify passing scores for certain students. The amendments also clarify that while 65 remains the minimum passing score on Regents examinations, with the exceptions set forth in section 100.5, it is no longer a percentage. Finally, in order to reflect the upcoming transition to Regents Exams that measure student progress on the CCLS, which may not be scored on a 0-100 scale, the amendment clarifies that the Board of Regents may prescribe a different minimum passing score.
The proposed amendment will not impose any additional professional services requirements.
3. COSTS:
The proposed amendment does not impose any additional costs on regulated parties but merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment does not impose any additional compliance requirements or costs on regulated parties but merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment also makes technical and clarifying changes.
The proposed amendment relates to State-designated performance levels or cut scores for purposes of determining student proficiency on State Assessments that are administered to students throughout the State, including those in rural areas. Such standards, of necessity, must be uniform throughout the State. Therefore, it was not possible to establish different requirements or exemptions for rural areas.
5. RURAL AREA PARTICIPATION:
Comments on the proposed amendment 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 merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments in elementary and secondary education, other than the Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents. The proposed amendment does not impose any additional compliance requirements or costs on regulated parties. 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 amendment merely codifies the State Education Department’s past practice for approval of State-designated performance levels or cut scores on State assessments of student proficiency in elementary and secondary education other than Regents examinations, by clarifying that the performance level or cut score shall be established by the Commissioner subject to approval by the Board of Regents.
The proposed amendment 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 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.
