EDU-27-12-00011-ERP Elementary and Secondary Education Act (ESEA) Flexibility and School and School District Accountability

9/26/12 N.Y. St. Reg. EDU-27-12-00011-ERP

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 39

September 26, 2012

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-27-12-00011-ERP

Filing No. 934

Filing Date. Sept. 11, 2012

Effective Date. Sept. 11, 2012

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:

Action Taken:

Addition of section 100.18; and amendment of sections 100.2(m), 100.17, 120.3 and 120.4 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101(not subdivided), 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1), (2), 309(not subdivided) and 3713(1) and (2)

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The purpose of the proposed rule is to implement New York State's approved Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request. On February 28, 2012, the New York State Education Department submitted to the United States Education Department (USDE) an ESEA Flexibility Waiver Request. On May 29, 2012, the USDE Secretary, based upon his authority to issue waivers pursuant to section 9401 of the ESEA, approved the Waiver Request.

The proposed rule adds a new section 100.18 and amends Commissioner's Regulations sections 100.2(m), 100.17, 120.3 and 120.4 to align the Commissioner's Regulations with the approved Waiver, and addresses the Regents Reform Agenda and New York State's updated accountability system. Adoption of the proposed rule is necessary to ensure a seamless transition to the revised school and school district accountability plan under the ESEA Flexibility Waiver and will allow school districts the option to demonstrate improvements, using options that closely align with the federal school turnaround principles described in Race to the Top and School Improvement Grant requirements.

The proposed rule was adopted as an emergency action at the June 18-19, 2012 Regents meeting, effective July 1, 2012. Since publication of the Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 3, 2012, the proposed rule has been revised in response to public comment.

Because the Board of Regents meets at scheduled intervals, the November 5-6 2012 meeting is the earliest the revised proposed rule could be presented for permanent adoption, after publication of a Notice of Revised Rule Making in the State Register and expiration of the 30-day public comment period required under State Administrative Procedure Act § 202(4-a). However, the June emergency rule will expire on September 16, 2012. A lapse in the rule will disrupt implementation of New York State's approved ESEA Flexibility Waiver.

A second emergency action is therefore necessary for the preservation of the general welfare to immediately revise the proposed rule to respond to public comment, so that school districts may timely meet school/school district accountability requirements for the 2012-2013 school year and beyond, consistent with New York State's approved ESEA Flexibility Waiver Request and pursuant to statutory requirements, and to otherwise ensure that the emergency rule adopted at the June Regents meeting, as so revised, remains continuously in effect until it can be presented and made effective as a permanent rule.

It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at its November 5-6, 2012 meeting, which is the first scheduled meeting after expiration of the 30-day public comment period mandated by the State Administrative Procedure Act for revised rule makings.

Subject:

Elementary and Secondary Education Act (ESEA) Flexibility and school and school district accountability.

Purpose:

To implement New York State's approved ESEA Flexibility Waiver.

Substance of emergency/revised rule:

The Commissioner of Education proposes to add section 100.18 and amend sections 100.2(m), 100.17, 120.3 and 120.4 of the Commissioner’s Regulations, relating to Elementary and Secondary Education Act (ESEA) Flexibility and school and school district accountability. On May 29, 2012, the Secretary for the United State Department of Education, based upon his authority to issue waivers pursuant to section 9401 of the ESEA, approved New York State's ESEA Flexibility Waiver Request. The proposed rule implements the approved Waiver Request and was adopted as an emergency rule at the June 18-19, 2012 Regents meeting, and revised and readopted as an emergency rule at the September 10-11, 2012 Regents meeting, effective July 1, 2012.

The following is a summary of the provisions of the revised proposed rule:

• 100.18 ESEA Accountability System – this new section relates to the specific revisions necessary to conform Commissioner’s Regulations to New York’s updated accountability system, as a result of the approved ESEA Flexibility Request, and includes the following:

• Subdivision (a) Applicability states that the provisions of section 100.18 are applicable, in lieu of specified paragraphs of section 100.2(p) of the Commissioner's Regulations, during the period of the Elementary and Secondary Education Act (ESEA) waiver, and any revisions and extensions thereof, except as otherwise provided in section 100.18.

• Subdivision (b) Definitions defines various terms used in the section, including performance levels that incorporate measures of growth at the elementary/middle-level and college and career readiness standards at the high school level.

• Subdivision (c) Procedure for Registration of Public Schools provides the procedures for the registration of new schools and determination of their accountability status.

• Subdivision (d) provides that the registration of a public school remains in effect until revoked by the Board of Regents or until a school is closed by a school district.

• Subdivision (e) System of Accountability for student success requires the Commissioner to annually review the performance of each school district, public school, and charter school in the State and make Adequate Yearly Progress determinations regarding the performance of their accountability groups in elementary/middle and high school ELA and mathematics, elementary/middle level science and graduation rate.

• Subdivision (f) Adequate Yearly Progress provides the rules for making Adequate Yearly Progress determinations.

• Subdivision (g) Differentiated accountability for school districts provides the process by which schools are identified as Priority Schools, Focus Schools, or Schools Requiring a Local Assistance Plan and districts are identified as Focus Districts. The subdivison also specifies the requirement for parental and public notification of such designations.

• Subdivision (h) Interventions specifies the interventions that occur in identified schools and districts; including the appointment of an Integrated Intervention Team and district and/or school participation in a diagnostic review; and development and implementation of a District Comprehensive Improvement Plan or a Local Assistance Plan or a School Comprehensive Education Plan. The subdivison further specifies the requirements for such plans, including the requirement that each Priority School implement a whole school reform model no later than the beginning of the 2014-2015 school year.

• Subdivision (i) Removal from accountability designation provides the procedures by which a public school or a charter school may be removed from Priority or Focus status and a school district may be removed from Focus District status.

• Subdivision (j) Public school, school district and charter school performance criteria establishes the Performance Criteria (Elementary-Middle Level and High School English language arts and mathematics, Elementary-Middle Level science and graduation rate) used to make school and school district accountability determinations; the Annual Measurable Objectives for English language arts, mathematics, and science; and the goals and progress targets for the four year and five year graduation rate cohorts. The subdivison also defines the annual high school cohort, the annual high school alternative cohort, and the graduation rate cohorts.

• Subdivision (k) Identification of schools for public school registration review specifies the processes by which schools will be identified for registration review, including special provisions for transfer high schools and schools in Special Act School Districts.

• Subdivision (l) Public school registration review specifies the actions that occur when schools are identified for registration review, including:

• notification by the Commissioner to the district and district notification to parents and the public;

• appointment by the Commissioner of an Integrated Intervention Team to make recommendations to the Commissioner as to whether the school shall continue to implement its current improvement plan, as modified by recommendations of the integrated intervention team; implement a new Comprehensive Improvement Plan, which may contain a new whole school reform model; or be phased out or closed.

• requirement that after the Commissioner approves or modifies and approves the recommendations of the Integrated Intervention Team, the district develops and implement a plan based on the recommendations.

This subdivision also establishes the process by which the Board of Regents may revoke the registration of a school and specifies that the Commissioner shall develop a plan to ensure that the educational welfare of the pupils of the school is protected and require that the school district implement it.

• Subdivision (m) Removal of schools from registration review, school phase-out or closure explains the process by which schools may be removed from registration review, including schools that are being redesigned as part of an approved District Comprehensive Improvement Plan.

• 100.2(m) Public reporting requirements for the Local Assistance Plan – revisions to this section relate to replacing the reference to the overview of school performance and instead reference the New York State Report Card. In addition, 100.2(m)(6) and (7) relating to the requirements for a Local Assistance Plan have been revised and incorporated into section 100.18.

• 100.17 Distinguished Educator Program – revisions to this section relate to replacing the reference to schools designated for improvement, corrective action or restructuring and instead referencing schools designated as Priority or Focus.

• 120.3 Public School Choice – revisions to this section relate to replacing the requirement for schools designated for improvement, corrective action or restructuring to offer public school choice and instead require it be offered to schools designated as Priority or Focus.

• 120.4 Supplemental Education Services (SES) – revisions to this section relate to New York no longer requiring districts to offer SES or set aside a portion of their Title I allocation to pay for SES. The revisions clarify that districts can choose to offer SES, and pay for the services using other funding resources.

This notice is intended

to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on July 3, 2012, I.D. No. EDU-27-12-00011-EP. The emergency rule will expire November 9, 2012.

Revised rule making(s) were previously published in the State Register on

September 26, 2012.

Emergency rule compared with proposed rule:

Substantial revisions were made in sections 100.18(g)(2), (5), (h)(2) and 100.2(m)(6).

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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Ken Slentz, Deputy Commissioner P-12 Education, State Education Department, State Education Building 2M West, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 3, 2012, the proposed rule has been revised as follows:

Section 100.18(g)(2)(i)(a)(2) and (3) have been revised for purposes of clarification to refer to the "Performance Index of the" accountability group.

Section 100.18(g)(5)(ii) has been revised to permit a school district, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, to petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools.

Section 100.18(g)(5)(iv) has been revised to clarify that If a school has fewer than a total of 15 non-proficient student results in the accountability group(s) for which it could be potentially identified, then the school will not be identified for non-proficient student results; and that if the school has fewer than 15 non-graduation results in the accountability group(s) for which it could be potentially identified, then the school will not be identified for non-graduation results.

Section 100.18(g)(5)(v) has been revised to clarify that if a school has more than 60 percent of its students meeting or exceeding the proficiency standard in ELA and math or a graduation rate of 60 percent or more for all accountability group(s) for which the school could be identified, then the school's non-proficient and non-graduate results will not be included in computing the number of the school district's non-proficient and non-graduation results.

Section 100.18(g)(5)(viii) has been revised to correct a miscitation by replacing the phrase "meet the conditions specified in subparagraphs (v), (vi) or (vii) of this paragraph" with "meet the conditions specified in subparagraphs (iv), (v) or (vi) of this paragraph."

Section 100.18(g)(5)(ix)(d) has been revised to provide that in the case of the city school district of the City of New York, if the chancellor identifies more than the minimum number of schools in a community school district, the Chancellor may request that such additional schools be credited towards meeting the minimum number of school requirement in other community school districts within the same county.

Section 100.18(h)(2)(i) has been revised to provide that for the 2012-13 school year, school districts shall use School Quality Reviews, External School Curriculum Audits, and Joint Intervention Team Reviews to develop district-wide strategic plans and school-based plans for intervention. Commencing in the 2013-14 school year, the school district will annually use the results of a diagnostic tool of quality indicators, in the form and content prescribed by the commissioner, which may include a visit by an integrated intervention team as appointed by the commissioner, to inform the creation of a District Comprehensive Improvement Plan.

Section 100.18(h)(2)(ii)(a)(1) and (h)(2)(iii)(c) have been revised to provide that the Commissioner may extend timelines for submission of required documents for good cause.(m)(6) has been revised to clarify that the provision regarding redesign of a school applies to Priority Schools.

Section 100.2(m)(6) and (6)(i) have been revised to replace references to "persistently lowest achieving school" and "persistently lowest achieving", respectively, with "Priority School" and "Priority", respectively.

The above changes require that the "Paperwork" section of the previously published Regulatory Impact Statement be revised to read as follows:

6. PAPERWORK:

A school district seeking to register a school shall submit a petition for registration pursuant to 100.18(c)(1).

If a district merges two or more schools, transfers organizational responsibility for one or more grades from one school to another, or closes a registered school, the district shall inform the Commissioner pursuant to 100.18(c)(4) and 100.18(d).

For each school year, public schools, school districts, and charter schools, in which no students or pursuant to 100.18(f)(2) fewer than 30 students participate in State assessments for English language arts or mathematics or in which the majority of students are not continuously enrolled, shall conduct a self-assessment of their academic program and school learning environment, pursuant to 100.18(f)(6).

For each preliminarily identified Priority School, Focus District or Focus Charter School, the district or charter school may present additional data and information concerning extenuating or extraordinary circumstances to establish cause to not be identified as a Focus District, a Priority School, or a Priority or Focus Charter School pursuant to 100.18(g)(3)(i).

Charter schools and districts may appeal a preliminarily identification of a school or district, pursuant to 100.18(g)(3)(ii).

Upon identification as a Focus District, the district must identify a specified minimum number of schools upon which it will focus its support and intervention efforts, pursuant to 100.18(g)(5).

A Focus District, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, may petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools, pursuant to 100.18(g)(5)(ii).

A Focus District may petition for good cause to substitute one or more lower ranked schools on the list selected by the district for higher ranked schools, pursuant to 100.18(g)(5)(ix)(d).

Upon receipt of a Priority or Focus accountability designation, a district or charter school shall notify public of issuance of such designation, pursuant to 100.18(g)(7).

Commencing in the 2012-2013 school year, each Focus District shall participate annually in a diagnostic review using a diagnostic tool of quality indicators, pursuant to 100.18(h).

Commencing with the plan for the 2012-2013 school year, each Focus District shall develop and implement a District Comprehensive Improvement Plan, pursuant to 100.18(h)(2)(ii).

Commencing with the plan for the 2012-13 school year, each Priority and Focus School located in a Focus District shall develop and implement a Comprehensive Education Plan pursuant to 100.18(h)(2)(iii). No later than September 30, 2012, each Focus District with one or more Priority Schools shall submit the schedule by which each of the district's Priority Schools shall implement, as part of the school's Comprehensive Improvement Plan, a whole school reform model.

A district that has not been identified as Focus but in which one or more schools require a Local Assistance Plan shall develop such plan pursuant to 100.18(h)(2)(iv).

A district or charter school may petition for a school to be removed from Priority status, pursuant to 100.18(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 pursuant to 100.18(i)(2).

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, pursuant to 100.19(i)(2)(iv).

Pursuant to 100.18(k)(6), the district may present additional data and relevant information concerning extenuating or extraordinary circumstances faced by a school to establish cause to not identify the school for registration review. Pursuant to 100.18(k)(5), for each school identified as a poor learning environment and placed under preliminary registration review, the district may present evidence that the conditions in the school do not threaten the health or safety or educational welfare of students and do not adversely affect student performance.

A district shall take appropriate action to notify the public that a school has been placed under registration review, pursuant to 100.18(l)(1).

Upon approval of the integrated intervention team's recommendations, the Commissioner shall direct the district to submit a revised improvement plan, a new comprehensive improvement plan, or a plan for phase out or closure pursuant to 100.18(l)(3), and may require a district to submit such reports and data as necessary to monitor the implementation of the plans, pursuant to 100.18(l)(4).

Within 15 days of receiving notice of the Commissioner's recommendation to revoke registration, the district may submit a written response to the recommendation, pursuant to 100.18(l)(7).

If a school has demonstrated progress necessary to be removed from registration review, the superintendent may petition to remove the school from registration review pursuant to 100.18(m).

If a district seeks to phase out or close a school under registration review or is required to close or phase-out a school, the district shall submit a plan identifying the intervention that will be implemented and will result in phase out or closure, pursuant to 100.18(m)(5).

If a district seeks to redesign a school under registration review or a persistently lowest achieving school, the district shall submit a petition and redesign plan, pursuant to 100.18(m)(6).

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 3, 2012, the proposed rule has been revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The revisions require that the Compliance Requirements section of the previously published Regulatory Flexibility Analysis be revised to read as follows:

2. COMPLIANCE REQUIREMENTS:

The rule is necessary to assist school districts to be able to meet the provisions of the Waiver and will result in districts making significant changes to the educational programs of schools designated as Priority and/or Focus. The Waiver allows the State to:

• Revise Annual Measurable Objective (AMO) timeframe by which schools and districts are expected to ensure that all students are proficient in English language arts (ELA) and mathematics and make the goals more realistic and attainable.

• Use standards on Regents ELA and mathematics examinations that are better aligned to college- and career- readiness to hold schools and districts accountable.

• Discontinue identification of schools for improvement, corrective action and restructuring and instead identify Priority and Focus Schools.

• Identify Focus Districts as a means to ensure districts take dramatic actions in support of schools where performance of disaggregated groups of students is among the lowest in the State and not showing progress.

• Replace current ESEA system of supports and interventions in identified schools and districts with one that better builds the capacity of districts to assists schools to implement transformation and turnaround.

• Use both proficiency and growth measures to make accountability determinations at the elementary and middle school levels.

• Create a single diagnostic tool ("The Diagnostic Tool for School and District Effectiveness") for use throughout the school and district improvement continuum to drive supports and interventions.

• Reframe existing ESEA set-asides to support enhanced implementation of Regents' Reform Agenda in Priority and Focus Schools, expanded learning time opportunities for students, and increased parental involvement and engagement.

• Give districts more flexibility in use of Federal funding as required as a condition of Waiver approval.

A school district seeking to register a school shall submit a petition for registration pursuant to 100.18(c)(1).

If a district merges two or more schools, transfers organizational responsibility for one or more grades from one school to another, or closes a registered school, the district shall inform the Commissioner pursuant to 100.18(c)(4) and 100.18(d).

For each school year, public schools, school districts, and charter schools, in which no students or pursuant to 100.18(f)(2) fewer than 30 students participate in State assessments for English language arts or mathematics or in which the majority of students are not continuously enrolled, shall conduct a self-assessment of their academic program and school learning environment, pursuant to 100.18(f)(6).

For each preliminarily identified Priority School, Focus District or Focus Charter School, the district or charter school may present additional data and information concerning extenuating or extraordinary circumstances to establish cause to not be identified as a Focus District, a Priority School, or a Priority or Focus Charter School pursuant to 100.18(g)(3)(i).

Charter schools and districts may appeal a preliminarily identification of a school or district, pursuant to 100.18(g)(3)(ii).

Upon identification as a Focus District, the district must identify a specified minimum number of schools upon which it will focus its support and intervention efforts, pursuant to 100.18(g)(5).

A Focus District, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, may petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools, pursuant to 100.18(g)(5)(ii).

A Focus District may petition for good cause to substitute one or more lower ranked schools on the list selected by the district for higher ranked schools, pursuant to 100.18(g)(5)(ix)(d).

Upon receipt of a Priority or Focus accountability designation, a district or charter school shall notify public of issuance of such designation, pursuant to 100.18(g)(7).

Commencing in the 2012-2013 school year, each Focus District shall participate annually in a diagnostic review using a diagnostic tool of quality indicators, pursuant to 100.18(h).

Commencing with the plan for the 2012-2013 school year, each Focus District shall develop and implement a District Comprehensive Improvement Plan, pursuant to 100.18(h)(2)(ii).

Commencing with the plan for the 2012-13 school year, each Priority and Focus School located in a Focus District shall develop and implement a Comprehensive Education Plan pursuant to 100.18(h)(2)(iii). No later than September 30, 2012, each Focus District with one or more Priority Schools shall submit the schedule by which each of the district's Priority Schools shall implement, as part of the school's Comprehensive Improvement Plan, a whole school reform model.

A district that has not been identified as Focus but in which one or more schools require a Local Assistance Plan shall develop such plan pursuant to 100.18(h)(2)(iv).

A district or charter school may petition for a school to be removed from Priority status, pursuant to 100.18(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 pursuant to 100.18(i)(2).

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, pursuant to 100.19(i)(2)(iv).

Pursuant to 100.18(k)(6), the district may present additional data and relevant information concerning extenuating or extraordinary circumstances faced by a school to establish cause to not identify the school for registration review. Pursuant to 100.18(k)(5), for each school identified as a poor learning environment and placed under preliminary registration review, the district may present evidence that the conditions in the school do not threaten the health or safety or educational welfare of students and do not adversely affect student performance.

A district shall take appropriate action to notify the public that a school has been placed under registration review, pursuant to 100.18(l)(1).

Upon approval of the integrated intervention team's recommendations, the Commissioner shall direct the district to submit a revised improvement plan, a new comprehensive improvement plan, or a plan for phase out or closure pursuant to 100.18(l)(3), and may require a district to submit such reports and data as necessary to monitor the implementation of the plans, pursuant to 100.18(l)(4).

Within 15 days of receiving notice of the Commissioner's recommendation to revoke registration, the district may submit a written response to the recommendation, pursuant to 100.18(l)(7).

If a school has demonstrated progress necessary to be removed from registration review, the superintendent may petition to remove the school from registration review pursuant to 100.18(m).

If a district seeks to phase out or close a school under registration review or is required to close or phase-out a school, the district shall submit a plan identifying the intervention that will be implemented and will result in phase out or closure, pursuant to 100.18(m)(5).

If a district seeks to redesign a school under registration review or a persistently lowest achieving school, the district shall submit a petition and redesign plan, pursuant to 100.18(m)(6).

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 3, 2012, the proposed rule has been revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The revisions require that the "Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services" section of the previously published Rural Area Flexibility Analysis be revised to read as follows:

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The rule is necessary to assist school districts to be able to meet the provisions of the Waiver and will result in districts making significant changes to the educational programs of schools designated as Priority and/or Focus. The Waiver allows the State to:

• Revise Annual Measurable Objective (AMO) timeframe by which schools and districts are expected to ensure that all students are proficient in English language arts (ELA) and mathematics and make the goals more realistic and attainable.

• Use standards on Regents ELA and mathematics examinations that are better aligned to college- and career- readiness to hold schools and districts accountable.

• Discontinue identification of schools for improvement, corrective action and restructuring and instead identify Priority and Focus Schools.

• Identify Focus Districts as a means to ensure districts take dramatic actions in support of schools where performance of disaggregated groups of students is among the lowest in the State and not showing progress.

• Replace current ESEA system of supports and interventions in identified schools and districts with one that better builds the capacity of districts to assists schools to implement transformation and turnaround.

• Use both proficiency and growth measures to make accountability determinations at the elementary and middle school levels.

• Create a single diagnostic tool ("The Diagnostic Tool for School and District Effectiveness") for use throughout the school and district improvement continuum to drive supports and interventions.

• Reframe existing ESEA set-asides to support enhanced implementation of Regents' Reform Agenda in Priority and Focus Schools, expanded learning time opportunities for students, and increased parental involvement and engagement.

• Give districts more flexibility in use of Federal funding as required as a condition of Waiver approval.

A school district seeking to register a school shall submit a petition for registration pursuant to 100.18(c)(1).

If a district merges two or more schools, transfers organizational responsibility for one or more grades from one school to another, or closes a registered school, the district shall inform the Commissioner pursuant to 100.18(c)(4) and 100.18(d).

For each school year, public schools, school districts, and charter schools, in which no students or pursuant to 100.18(f)(2) fewer than 30 students participate in State assessments for English language arts or mathematics or in which the majority of students are not continuously enrolled, shall conduct a self-assessment of their academic program and school learning environment, pursuant to 100.18(f)(6).

For each preliminarily identified Priority School, Focus District or Focus Charter School, the district or charter school may present additional data and information concerning extenuating or extraordinary circumstances to establish cause to not be identified as a Focus District, a Priority School, or a Priority or Focus Charter School pursuant to 100.18(g)(3)(i).

Charter schools and districts may appeal a preliminarily identification of a school or district, pursuant to 100.18(g)(3)(ii).

Upon identification as a Focus District, the district must identify a specified minimum number of schools upon which it will focus its support and intervention efforts, pursuant to 100.18(g)(5).

A Focus District, that has been identified as a Focus District solely because it has one or more Priority Schools in the school district, may petition the Commissioner to substitute for good cause one or more schools selected by the Commissioner to be Focus Schools, pursuant to 100.18(g)(5)(ii).

A Focus District may petition for good cause to substitute one or more lower ranked schools on the list selected by the district for higher ranked schools, pursuant to 100.18(g)(5)(ix)(d).

Upon receipt of a Priority or Focus accountability designation, a district or charter school shall notify public of issuance of such designation, pursuant to 100.18(g)(7).

Commencing in the 2012-2013 school year, each Focus District shall participate annually in a diagnostic review using a diagnostic tool of quality indicators, pursuant to 100.18(h).

Commencing with the plan for the 2012-2013 school year, each Focus District shall develop and implement a District Comprehensive Improvement Plan, pursuant to 100.18(h)(2)(ii).

Commencing with the plan for the 2012-13 school year, each Priority and Focus School located in a Focus District shall develop and implement a Comprehensive Education Plan pursuant to 100.18(h)(2)(iii). No later than September 30, 2012, each Focus District with one or more Priority Schools shall submit the schedule by which each of the district's Priority Schools shall implement, as part of the school's Comprehensive Improvement Plan, a whole school reform model.

A district that has not been identified as Focus but in which one or more schools require a Local Assistance Plan shall develop such plan pursuant to 100.18(h)(2)(iv).

A district or charter school may petition for a school to be removed from Priority status, pursuant to 100.18(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 pursuant to 100.18(i)(2).

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, pursuant to 100.19(i)(2)(iv).

Pursuant to 100.18(k)(6), the district may present additional data and relevant information concerning extenuating or extraordinary circumstances faced by a school to establish cause to not identify the school for registration review. Pursuant to 100.18(k)(5), for each school identified as a poor learning environment and placed under preliminary registration review, the district may present evidence that the conditions in the school do not threaten the health or safety or educational welfare of students and do not adversely affect student performance.

A district shall take appropriate action to notify the public that a school has been placed under registration review, pursuant to 100.18(l)(1).

Upon approval of the integrated intervention team's recommendations, the Commissioner shall direct the district to submit a revised improvement plan, a new comprehensive improvement plan, or a plan for phase out or closure pursuant to 100.18(l)(3), and may require a district to submit such reports and data as necessary to monitor the implementation of the plans, pursuant to 100.18(l)(4).

Within 15 days of receiving notice of the Commissioner's recommendation to revoke registration, the district may submit a written response to the recommendation, pursuant to 100.18(l)(7).

If a school has demonstrated progress necessary to be removed from registration review, the superintendent may petition to remove the school from registration review pursuant to 100.18(m).

If a district seeks to phase out or close a school under registration review or is required to close or phase-out a school, the district shall submit a plan identifying the intervention that will be implemented and will result in phase out or closure, pursuant to 100.18(m)(5).

If a district seeks to redesign a school under registration review or a persistently lowest achieving school, the district shall submit a petition and redesign plan, pursuant to 100.18(m)(6).

The proposed rule making imposes no additional professional service requirements on school districts.

Revised Job Impact Statement

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 3, 2012, the proposed rule has been revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The proposed rule, as revised, relates to public school and school district accountability and is necessary to conform the Commissioner's Regulations to New York State's Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request; which was approved by the Secretary to the United States Education Department on May 29, 2012 pursuant to ESEA section 9401. The purpose of the revised proposed rule is to ensure a seamless transition to the revised accountability plan as authorized under the ESEA Flexibility Waiver. 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 revised proposed rule 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 revised proposed rule 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.

Assessment of Public Comment

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on July 3, 2012 the Department received the following comments on the proposed rule.

1. COMMENT:

The Department should use the designation of Priority and Focus Schools as a floor and not a ceiling in terms of targeting interventions and setting aside funds to improve student achievement and teacher effectiveness. While the comment supports the amendment to section 120.4, the State should set criteria and provide guidance on the use of Title I funds and district choice of supplemental educational services (SES) providers or services. For example, districts should only work with high-quality partners and providers with a record of success raising student achievement across a grade level or school.

DEPARTMENT RESPONSE:

The Department has provided guidance to the field regarding the approved SES providers that districts may choose to have as the providers and from which parents may select. In addition, the proposed rules specify that Focus Districts must adhere to the Department’s policy on the use of set-asides, which include Title I, II, and III funding. No change to the regulation is necessary.

2. COMMENT:

Amendments to Section 120.4(f) should require that local education agencies (LEAs) that choose to continue providing SES services provide a plan that describes how the LEA will select and hold accountable the approved providers from which parents may choose. In addition, paragraphs (9) and (12) of Section 120.4(f) should be amended to create stronger accountability for LEAs and providers regarding the quality and effectiveness of the services offered.

In the event that districts opt not to continue providing SES services, additional guidance should be provided to the LEAs as to how to expend the former SES set-aside funds. Requiring that the funds that would have been set-aside for SES services be used for the provision of high-quality expanded learning opportunity (ELO) programs at Focus and Priority Title I Schools would provide LEAs with flexibility around SES while preserving and expanding crucial opportunities for students attending struggling schools to receive assistance outside the traditional school day.

To ensure quality outcomes, the Department should consider requiring partnerships with community-based organizations that can demonstrate a history of improving student outcomes for the establishment of ELO programs with the former SES set-aside dollars, similar to the structure of the 21st Century Community Learning Centers program in New York.

DEPARTMENT REPONSE:

The recommendations made are addressed by the requirements of the Consolidated Application that all LEAs must complete in order to receive Title I funds. The Consolidated Application requires that an LEA submit its plans for provision of SES and use of set aside funds to support programs and services in Priority and Focus Schools. In addition, Priority Schools are required to offer Extended Learning Time (ELT) programs when they begin implementing their mandated whole school reform model. Therefore, no change to the regulation is required.

3. COMMENT:

The regulations should be used to give districts and schools direction about how to use Title I funds for expanded learning. Two alternatives to providing these directions are:

1. Provide districts that opt not to offer SES, guidance that will allow them to offer high-quality ELOs to their students attending Focus and Priority Title I Schools.

2. Use the new set-aside of 5-15 percent of Title I, II, and II funds to transform student outcomes through ELOs. In the current form, the diverse array of allowable activities may diminish the impact of the set-aside. In addition, clarification about the requirements for this set-aside should be provided to districts and other stakeholders. Clarification should also be provided to districts that opt to continue SES, i.e. whether they would need to set aside as much as 35 percent of Title I funds.

DEPARTMENT RESPONSE:

The Department has provided guidance to the field regarding the approved SES providers that districts may choose for parent selection as well as the acceptable use of set aside funds. No further response is necessary, as the comment is supportive of the revised regulations.

4. COMMENT:

There should be “adequate procedural guidelines for districts/schools with former SINI [schools in need of improvement] designations/newly conferred "focus" or "priority" designations.” The lack of specificity can allow districts to exploit the new ESEA Waiver flexibility framework and use it to their advantage in thwarting the purpose of NCLB.

Although there is the July 7, 2012 Field Guidance Memo stating that Public School Choice (PSC) was required and must be offered, some districts may choose to not honor the guidance “absent an order or other affirmative language in the revised NYSED regulations mandating compliance with PSC rules.” The proposed amendment should be revised to forestall districts’ ability to select schools for focus designation, and acknowledge that former SlNl designated schools must continue to offer PSC for a specified period of time going forward.

DEPARTMENT RESPONSE:

The Department disagrees and believes that the proposed amendment provides the necessary flexibility for school districts to select the schools upon which the school districts will focus their support and intervention efforts. The proposed amendment delineates that districts continue to be required to offer PSC for students attending either Title I Priority or Focus Schools. When a school is designated as a Priority or Focus School, the requirement to offer PSC will remain in effect.

In addition, districts will be required to prepare Local Assistance Plans (LAP) to support schools within the district that show a persistent pattern of failing to make Adequate Yearly Progress (AYP) with a particular student population or have large gaps in student achievement between one or more student subgroups. The suggested revision is unnecessary.

5. COMMENT:

The regulations should describe explicitly the allowable activities, supports and interventions, and the development of the District Comprehensive Improvement Plan (DCIP) in collaboration with parents as required by Commissioner’s Regulations 100.11 on shared decision-making. In some areas, the regulations should be more prescriptive in the expectations of the allowable activities for students, teachers, and parents. In addition, each Focus District developing a DCIP should be required to hold a public hearing about the findings of the Diagnostic Tool and the proposed interventions. The meeting should be held after business hours and allow a length of time for sufficient discussion and community recommendations to be incorporated in the DCIP to ensure sustainable success.

Finally, the proposed amended rules should require the creation of the District Leadership Team, which would oversee the development, and implementation of the DCIP. The team should include “the Superintendent/Community Superintendent, District Staff, School Leaders Representative, Teacher Representative, Union Representative, Parent Organization Representative, Parents/Guardians, Students, and a Community representative. All team members must sign off on the plan.” The Commissioner should not sign off on any plan that does not offer an adequate explanation of the process, choice of intervention strategies, and meaningful participation and collaboration.

DEPARTMENT RESPONSE:

The Department believes that the existing requirement for parents and persons in parental relation to be consulted in the development of the DCIP, in collaboration with the school and district, is sufficient and consistent with New York's approved ESEA waiver.

6. COMMENT:

Districts should be given flexibility to utilize the Commissioner approved district-based “diagnostic tool” in connection with developing the DCIP and Comprehensive Education Plan (CEP) for the identified Priority and Focus Schools that SED does not visit annually during the school year. Districts should be allowed to use this process whenever a school is designated to undergo a Quality Review. When a school is not designated for a Quality Review, a school should be able to self-review using its district-based rubric.

While urgency is needed to affect whole school reforms at Priority Schools, the September 30, 2012 deadline for submitting the schedule for implementing such reforms, is not feasible. Therefore, the deadline for submission should be December 30, 2012 for this year, and any amendments for subsequent school years re-submitted annually by September 30th.

The amendments require that the DCIP be approved within three months following the designation of the school district as a Focus District. This means that no later than late November (assuming the SED releases the list of Focus Districts in late August). However, as discussed above, this timeline is not feasible. Therefore, the deadline for submission of DCIPs and CEPs should be December 31, 2012, and December 31st in subsequent years.

Certain districts must comply with extensive notice and public hearing procedures associated with certain proposed changes in school utilization. These procedures, which are often triggered in connection with the opening of new schools, do not typically conclude until late April. Therefore, the timeline for submission of petitions for registration of new schools to the Board of Regents should be no later than April 30.

As a preliminary matter, it is unclear what diagnostic tool the Commissioner directs school districts to utilize. Moreover, even if the Commissioner had specified the intended diagnostic tool, there is insufficient time to implement this new tool and obtain information necessary to inform the DCIP to be issued in the 2012-13 school year. Therefore, the amendments should clarify that school districts may use the Differentiated Accountability intervention results from the prior year as a transition for the 2012-13 year, in addition to any local evaluations conducted by the school district.

The Commissioner should revise the identification of Focus Schools such that the city of New York school district may identify a minimum number of schools upon which to focus its intervention efforts on a citywide basis or at a minimum on a borough-by-borough basis, rather than on a community school district basis. Requiring New York City to identify a specific number of Focus Schools in each of its 32 districts does not allow the district to identify its lowest performing schools based on subgroup performance, and instead can have the perverse consequence of capturing higher-performing schools for identification while lower-performing schools remain unidentified.

The regulation refers to “a persistently lowest achieving school,” however this designation is no longer applicable. SED should utilize the intended operative school designation, which refers to Priority schools.

DEPARTMENT RESPONSE:

The revision to the regulation regarding the diagnostic tool is unnecessary. The intent of the diagnostic tool is for a consistent review process across the state. As such, it addresses the expectations for district and school reforms in the approved waiver.

With respect to the submission timeline for the Priority School implementation schedule, DCIP, CEP, and the petitions for school registration, the regulation has been revised to provide that the Commissioner may waive these timelines for good cause.

With respect to the diagnostic tool to use in the 2012-13 school year, the regulation has been revised to clarify that school districts must use the 2011-12 School Quality Reviews, External School Curriculum Audits, and Joint Intervention Team reviews to inform the DCIP and CEP to be used in the 2012-13 school year.

The regulations have also been revised so that in the city school district of the City of New York, if the Chancellor of the city school district identifies more than the minimum number of schools in a community school district, the Chancellor may request that such additional schools be credited towards meeting the minimum number of school requirement in other community school districts within the same county.

The regulations have been clarified to refer to Priority Schools rather than persistently lowest achieving schools, when Priority Schools is the appropriate applicable term.