EDU-26-16-00015-E Annual Professional Performance Reviews (APPR) of Classroom Teachers and Building Principals

9/28/16 N.Y. St. Reg. EDU-26-16-00015-E

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 39

September 28, 2016

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY RULE MAKING

 

I.D No. EDU-26-16-00015-E

Filing No. 846

Filing Date. Sept. 12, 2016

Effective Date. Sept. 12, 2016

Annual Professional Performance Reviews (APPR) of Classroom Teachers and Building Principals

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of section 30-2.3 and Subpart 30-3 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1), (2), 3009(1), 3012-c and 3012-d; L. 2015, ch. 20, subpart C, section 3; L. 2015, ch. 56, part EE, subpart E, sections 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 amendment is to provide districts and BOCES with additional options for measures to use in the student performance category and greater flexibility in scoring observations in the observation category. It also seeks to clarify that the Department may require changes to a collective bargaining agreement in a corrective action plan subject to collective bargaining under Article 14 of the Civil Service Law and that teacher/principal improvement plans are required to negotiated, to the extent required under Article 14 of the Civil Service Law.

Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for regular (non-emergency) adoption, after expiration of the required 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(4-a), would be the September 12-13, 2016 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the September meeting, would be September 28, 2016, the date a Notice of Adoption would be published in the State Register.

Emergency action at the July 2016 Regents meeting is therefore necessary for the preservation of the general welfare in order to immediately adopt revisions to the proposed amendment to provide immediate notice to districts of the additional allowable measures in the student performance category, the increased flexibility in scoring observations in the observation category and to clarify the collective bargaining requirements surrounding teacher/principal improvement plans and to clarify that corrective action plans may require changes to collective bargaining agreements, subject to negotiation under Article 14 of the Civil Service Law, while they are negotiating their annual professional performance review plans under Education Law § 3012-d for the 2016-2017 school year. It is also necessary to ensure that the emergency rule adopted at the May 2016 Regents meeting remains continuously in effect until it can be adopted as a permanent rule at the September 2016 Regents meeting.

Subject:

Annual Professional Performance Reviews (APPR) of classroom teachers and building principals.

Purpose:

Technical Amendments.

Text of emergency rule:

1. Subdivision (c) of section 30-2.3 shall be amended, effective September 12, 2016, to read as follows:

(c)(1) Subject to the provisions of Education Law 3012-c(2)(k), the entire annual professional performance review shall be completed and provided to the teacher or the principal as soon as practicable but in no case later than September 1st of the school year next following the school year for which the teacher or principal’s performance is being measured. The teacher’s and principal’s score and rating on the locally selected measures subcomponent, if available, and on the other measures of teacher and principal effectiveness subcomponent for a teacher’s or principal’s annual professional performance review shall be computed and provided to the teacher or principal, in writing, by no later than the last day of the school year for which the teacher or principal is being measured, but in no case later than September 1st of the school year next following the school year for which the teacher or principal’s performance is measured. Nothing in this subdivision shall be construed to authorize a teacher or principal to commence the appeal process prior to receipt of their composite effectiveness score and rating. Each such annual professional performance review shall be based on the State assessments or other comparable measures subcomponent, the locally selected measures of student achievement subcomponent and the other measures of teacher and principal effectiveness subcomponent, determined in accordance the applicable provisions of Education Law section 3012-c and this Subpart, for the school year for which the teacher’s or principal’s performance is measured.

(2) Notwithstanding any provisions in this subdivision to the contrary, for the 2015-16 school year, teachers or principals whose annual professional performance reviews are based, in whole or in part, on the results of the grades 3-8 English language arts or mathematics State assessments and/or State-provided growth scores on Regents examinations shall be provided with their annual professional performance review transition scores and ratings computed pursuant to section 30-2.14 of this Subpart as soon as practicable but in no case later than September 1st of the school year next following the school year for which the teacher or principal’s performance is being measured. During the 2015-16 school year, such teachers and principals shall also be provided with their original composite rating computed pursuant to section 3012-c of the Education Law and this Subpart by September 1st of the school year next following the school year for which the teacher or principal’s performance is being measured, or as soon as practicable thereafter.

2. Subdivision (c) of section 30-3.3 of the Rules of the Board of Regents, effective September 12, 2016, is amended to read as follows:

(c)(1) [The] Except as otherwise provided in paragraph (2) of this subdivision, the entire annual professional performance review shall be completed and provided to the teacher or the principal as soon as practicable but in no case later than September 1st of the school year next following the school year for which the teacher or principal’s performance is measured. The teacher’s and principal’s score and rating on the observation/school visit category and in the student performance category, if available, shall be computed and provided to the teacher or principal, in writing, by no later than the last day of the school year for which the teacher or principal is being measured, but in no case later than September 1st of the school year next following the school year for which the teacher or principal’s performance is measured. Nothing in this subdivision shall be construed to authorize a teacher or principal to commence the appeal process prior to receipt of his or her overall rating. Districts shall ensure that there is a complete evaluation for all classroom teachers and building principals, which shall include scores and ratings on the subcomponent(s) of the student performance category and the observation/school visit category and the combined category scores and ratings, determined in accordance with the applicable provisions of Education Law section 3012-d and this Subpart, for the school year for which the teacher’s or principal’s performance is measured.

(2) Notwithstanding any provisions in this subdivision to the contrary, during the 2015-16 through 2018-19 school years, teachers or principals whose annual professional performance reviews are based, in whole or in part, on the results of the grades 3-8 English language arts or mathematics State assessments and/or State-provided growth scores on Regents examinations shall be provided with their annual professional performance review transition scores and ratings computed pursuant to section 30-3.17 of this Subpart as soon as practicable but in no case later than September 1st of the school year next following the school year for which the teacher or principal’s performance is being measured. During the 2015-16 through 2018-19 school years, such teachers and principals shall also be provided with their original composite rating computed pursuant to section 3012-d of the Education Law and this Subpart by September 1st of the school year next following the school year for which the teacher or principal’s performance is being measured, or as soon as practicable thereafter.

3. Subparagraph (ii) of paragraph (1) of subdivision (b) of section 30-3.4 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(ii) for a teacher whose course does not end in a State-created or administered test or where less than 50 percent of the teacher’s students are covered by a State-provided growth measure, such teacher shall have a student learning objective (SLO) developed and approved by his/her superintendent or his or her designee, using a form prescribed by the commissioner, consistent with the SLO process determined or developed by the commissioner, that results in a student growth score; provided that, for any teacher whose course ends in a State-created or administered assessment for which there is no State-provided growth model, such assessment must be used as the underlying assessment for such SLO. Provided, however, that during the 2015-16 school year, while the Department transitions to a new computer based examination, the district shall determine whether to use the New York State Alternate Assessment (NYSAA) as the underlying assessment for such SLO. In instances where a district determines not to use the NYSAA, the district must determine whether to use SLOs based on a list of approved student assessments, or a district- or-BOCES-wide or school- or program-wide group, team, or linked results based on State/Regents assessments, or other assessments approved by the Department, as defined by the commissioner in guidance. The SLO process determined by the commissioner shall include a minimum growth target of one year of expected growth, as determined by the superintendent or his or her designee. Such targets, as determined by the superintendent or his or her designee, may take the following characteristics into account: poverty, students with disabilities, English language learners status and prior academic history. SLOs shall include the following SLO elements, as defined by the commissioner in guidance:

(a) . . .

(b) . . .

(c) . . .

(d) . . .

(e) . . .

(f) . . .

(g) . . .

(h) . . .

4. Subparagraph (iii) of paragraph (1) of subdivision (b) of section 30-3.4 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(iii) for a teacher whose course does not end in a State-created or administered test or where a State-provided growth measure is not determined, districts may determine whether to use SLOs based on a list of approved student assessments, or a [school-or-BOCES-wide] district or BOCES-wide or school or program-wide group, team, or linked results based on State/Regents assessments or other student assessments approved by the Department, as defined by the commissioner in guidance.

5. Paragraph (2) of subdivision (b) of Section 30-3.4 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(2) Optional second subcomponent. A district may locally select a second measure that shall be applied in a consistent manner, to the extent practicable, across the district based on the State/Regents assessments or State-designed assessments and be either:

(i) a second State-provided growth score on a state-created or administered test; provided that the State-provided growth measure is different than that used in the required subcomponent of the student performance category, which may include one or more of the following measures:

(a) a teacher-specific growth score computed by the State based on percentage of students who achieve a State-determined level of growth (e.g., percentage of students whose growth is above the median for similar students);

(b) school-wide growth results based on a State-provided school-wide growth score for all students attributable to the school who took the State English language arts or math assessment in grades 4-8;

(c) district- or BOCES-wide or school-wide, group, team, or linked growth results using available State-provided growth scores that are locally-computed; or

(ii) a growth score based on a State-designed supplemental assessment, calculated using a State-provided or approved growth model. Such growth score may include [school] district- or BOCES-wide or school- or program-wide group, team, or linked results where the State-approved growth model is capable of generating such a score.

6. Subparagraph (xii) of paragraph (2) of subdivision (d) of section 30-3.4 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(xii) Each subcomponent of the observation category shall be evaluated on a 1-4 scale based on a State-approved rubric aligned to the New York State teaching standards and an overall score for [each] the observation category shall be generated between 1-4. Such subcomponent scores shall incorporate all evidence collected and observed over the course of the school year. [Multiple] Scores for each [observations] subcomponent of the observation category shall be combined using a weighted average pursuant to subparagraph (xiv) of this paragraph, producing an overall observation category score between 1-4. In the event that a teacher earns a score of 1 on all rated components of the practice rubric across all observations, a score of 0 will be assigned.

7. Subparagraph (ii) of paragraph (1) of subdivision (b) of section 30-3.5 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(ii) for a principal where less than 30 percent of his/her students are covered under the State-provided growth measure, such principal shall have a student learning objective (SLO), on a form prescribed by the commissioner, consistent with the SLO process determined or developed by the commissioner, that results in a student growth score; provided that, for any principal whose building or program includes courses that end in a State-created or administered assessment for which there is no State-provided growth model, such assessment must be used as the underlying assessment for such SLO. Provided, however, that during the 2015-16 school year, while the Department transitions to a new computer based examination, the district shall determine whether to use the New York State Alternate Assessment (NYSAA) as the underlying assessment for such SLO. In instances where a district determines not to use the NYSAA, the district must determine whether to use SLOs based on a list of approved student assessments, or a district- or-BOCES-wide or school- or program-wide group, team, or linked results based on State/Regents assessments, or other assessments approved by the Department, as defined by the commissioner in guidance. The SLO process determined by the commissioner shall include a minimum growth target of one year of expected growth, as determined by the superintendent or his or her designee. Such targets, as determined by the superintendent or his or her designee, may take the following characteristics into account: poverty, students with disabilities, English language learners status and prior academic history. SLOs shall include the following SLO elements, as defined by the commissioner in guidance:

(a) . . .

(b) . . .

(c) . . .

(d) . . .

(e) . . .

(f) . . .

(g) . . .

(h) . . .

(8) Subparagraph (iii) of paragraph (1) of subdivision (b) of section 30-3.5 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(iii) For a principal of a building or program whose courses do not end in a State-created or administered test or where a principal growth score is not determined, districts shall use SLOs based on a list of State-approved student assessments. SLOs set for courses in the principal’s building which do not end in a State-created or administered test may incorporate district or BOCES-wide or school or program-wide results from State-created or administered tests, or other student assessments approved by the Department.

(9) A new subparagraph (iv) of paragraph (1) of subdivision (b) of section 30-3.5 of the Rules of the Board of Regents is added, effective September 12, 2016, to read as follows:

(iv) districts shall develop back-up SLOs for all principals whose buildings or programs contain courses that end in a State-created or administered test for which there is a State-provided growth model, to use in the event that no State-provided growth score can be generated for such principals.

(10) Paragraph (2) of subdivision (b) of section 30-3.5 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(2) Optional second subcomponent. A district may select one or more other measures for the student performance category that shall be applied in a consistent manner, to the extent practicable, across the district based on either:

(i) a second State-provided growth score on a State-created or administered test; provided that a different measure is used than that for the required subcomponent in the student performance category, which may include one or more of the following measures:

(a) principal-specific growth computed by the State based on the percentage of students who achieve a State-determined level of growth (e.g., percentage of students whose growth is above the median for similar students);

(b) district- or BOCES-wide or school- or program -wide growth results using available State-provided growth scores that are locally-computed; or

(ii) a growth score based on a State-designed supplemental assessment, calculated using a State-approved growth model. Such growth score may include [school] district- or BOCES-wide or school- or program-wide group, team, or linked measures where the State-approved growth model is capable of generating such a score.

(11) Paragraph (13) of subdivision (d) of section 30-3.5 of the Rules of the Board of Regents is amended, effective September 12, 2016, to read as follows:

(13) Each subcomponent of the school visit category shall be evaluated on a 1-4 scale based on a state-approved rubric aligned to the ISLLC standards and an overall score for [each] the school visit category shall be generated between 1-4. Such subcomponent scores must incorporate all evidence collected and observed over the course of the school year in that subcomponent. [Multiple] Scores for each [observations] subcomponent of the school visit category shall be combined using a weighted average, producing an overall [observation] school visit category score between 1-4. In the event that a principal earns a score of 1 on all rated components of the practice rubric across all school visits, a score of 0 will be assigned. Weighting of Subcomponents with Principal School Visit Category. The weighting of the subcomponents within the principal school visit category shall be established locally within the following constraints:

(i)…

(ii)…

(iii)…

(12) Subdivision (b) of section 30-3.11 shall be amended, effective September 12, 2016, to read as follows:

(b) Such improvement plan shall be developed by the superintendent or his or her designee in the exercise of their pedagogical judgment, and subject to collective bargaining to the extent required under article 14 of the Civil Service Law, and shall include, but need not be limited to, identification of needed areas of improvement, a timeline for achieving improvement, the manner in which the improvement will be assessed, and, where appropriate, differentiated activities to support a teacher's or principal's improvement in those areas.

(13) Subdivision (c) of section 30-3.13 of the Rules of the Board of Regents, effective September 12, 2016, is amended to read as follows:

(c) Corrective action plans may require changes to a collective bargaining agreement, subject to collective bargaining under article 14 of the Civil Service Law.

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-26-16-00015-EP, Issue of June 29, 2016. The emergency rule will expire November 10, 2016.

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

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law 101 charges the Department with the general management and supervision of the educational work of the State and establishes the Regents as head of the Department.

Education Law 207 grants general rule-making authority to the Regents to carry into effect State educational laws and policies.

Education Law 215 authorizes the Commissioner to require reports from schools under State educational supervision.

Education Law 305(1) authorizes the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies. Section 305(2) provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools.

Education Law 3009(1) provides that no part of the school moneys apportioned to a district shall be applied to the payment of the salary of an unqualified teacher, nor shall his salary or part thereof, be collected by a district tax except as provided in the Education Law.

Education Law 3012-c establishes requirements for the conduct of annual professional performance reviews (APPR) of classroom teachers and building principals employed by school districts and boards of cooperative educational services (BOCES).

Education Law 3012-d, as added by Section 2 of Subpart E of Part EE of Chapter 56 of the Laws of 2015 establishes a new evaluation system for classroom teachers and building principals employed by school districts and BOCES for the 2015-16 school year and thereafter.

2. LEGISLATIVE OBJECTIVES:

The proposed rule is consistent with the above authority vested in the Regents and Commissioner to carry into effect State educational laws and policies and Ch.56, L.2015, as amended by Ch.20, L.2015, and is necessary to support the commitment made by the Legislature, the Governor, the Regents and Commissioner to ensure effective evaluation of classroom teachers and building principals. The proposed rule is necessary to provide immediate notice to districts of the additional allowable measures in the student performance category, the increased flexibility in scoring observations in the observation category and to clarify the collective bargaining requirements surrounding teacher/principal improvement plans and to clarify that corrective action plans may require changes to collective bargaining agreements, subject to negotiation under Article 14 of the Civil Service Law, while they are negotiating their annual professional performance review plans under Education Law § 3012-d for the 2016-2017 school year.

3. NEEDS AND BENEFITS:

In September 2015, Governor Andrew Cuomo formed the Common Core Task Force to undertake a comprehensive review of the current status and use of the Common Core State Standards and assessments in New York and to recommend potential reforms to the system. Following multiple meetings, the Task Force reviewed and discussed information presented at public sessions and submitted through the website, and has made a number of recommendations regarding the implementation of the Common Core Standards.

On December 10, 2015, the Task Force released their report, affirming that New York must have rigorous, high quality education standards to improve the education of all of our students and hold our schools and districts accountable for students’ success but recommended that the Common Core standards be thoroughly reviewed and revised consistent as reflected in the report and that the State assessments be amended to reflect such revisions. In addition, the Task Force recommended that until the new system is fully phased in, the results from the grades 3-8 English language arts and mathematics State assessments and the use of any State-provided growth model based on these tests or other State assessments shall not have consequence for teachers or students. Specifically, Recommendation 21 from the Task Force’s Final Report (“Report”) provides as follows:

“…State-administered standardized ELA and Mathematics assessments for grades three through eight aligned to the Common Core or updated standards shall not have consequences for individual students or teachers. Further, any growth model based on these Common Core tests or other state assessments shall not have consequences and shall only be used on an advisory basis for teachers. The transition phase shall last until the start of the 2019-2020 school year”.

The Department has continued to solicit feedback and input from the various stakeholder groups regarding the implementation of the requirements of the transition period, and of the implementation of the requirements of Subpart 30-3 of the Rules of the Board of Regents generally. The proposed amendment reflects areas where there has been consistent feedback from stakeholders requesting a revision to the regulations.

Proposed amendment

In an effort to provide districts and BOCES with greater flexibility in implementing the provisions of Education Law § 3012-d and Subpart 30-3 of the Rules of the Board of Regents, the proposed amendment makes the following changes:

• Sections 30-2.3(c) and 30-3.3(c) are amended to clarify that transition scores and ratings, calculated pursuant to Sections 30-2.14 and 30-3.17, must be provided to teachers and principals, no later than September 1st of the school year immediately following the school year for which the teacher or principal’s performance is evaluated during the transition period (2015-16 through 2018-19 school years). Original final ratings for such teachers and principals must be provided by September 1st, or as soon as practicable thereafter, during the transition period. Educators whose APPRS are not based on 3-8 ELA/math State assessments or State-provided growth scores and do not receive transition scores and ratings shall continue to receive their final APPR ratings no later than September 1st. Sections 30-3.4 and 30-3.5 are amended to clarify the measures that may be used in the student performance category of a teacher’s or principal’s evaluation, and the methodology by which subcomponent and overall scores must be calculated in the teacher observation and principal school visit categories. Section 30-3.4 applies to teacher’s evaluations under Education Law § 3012-d, and section 30-3.5 of the Regents Rules applies to principal’s evaluations under Education Law § 3012-d.

• The amendments to sections 30-3.4 and 30-3.5 provide that in the first mandatory subcomponent of the student performance category of a teacher’s or principal’s evaluation, for a teacher or principal whose courses do not end in a State-created or administered test or where a State-provided growth score is not determined, the SLOs set for such courses may incorporate district or BOCES-wide or school or program-wide results from State-created or administered tests, or other student assessments approved by the Department. Where a course does end in a State-created or administered assessment for which there is no State-provided growth model, such assessment must be used as the underlying assessment for such SLO. Provided, however, that during the 2015-16 school year, while the Department transitions to a new computer based examination, the district shall determine whether to use the New York State Alternate Assessment (NYSAA) as the underlying assessment for such SLO. In instances where a district determines not to use the NYSAA, the district must determine whether to use SLOs based on a list of approved student assessments, or district- or-BOCES-wide results based on State/Regents assessments, or other assessments approved by the Department, as defined by the commissioner in guidance.

• Section 30-3.5 is amended to require districts to develop back-up SLOs for all principals whose buildings or programs contain courses that end in a State-created or administered test for which there is a State-provided growth model, to use in the event that no State-provided growth score can be generated for such principals.

• The amendments to sections 30-3.4 and 30-3.5 also provide that in the optional second subcomponent of the student performance category, if a measure based on a second State-provided growth score on a state-created or administered test is selected, this measure may incorporate district- or BOCES-wide or school- or program-wide, group, team, or linked growth results using available State-provided growth scores that are locally-computed. If a growth score based on a State-designed supplemental assessment, calculated using a State-provided or approved growth model is selected, such growth score may include district- or BOCES-wide or school- or program-wide group, team, or linked results where the State-approved growth model is capable of generating such a score.

• Sections 30-3.4 and 30-3.5 are further amended to clarify that each observation or school visit must be evaluated based on a State-approved rubric aligned to the New York State teaching standards or ISLLC standards (as applicable) and an overall score for each teacher observation category or principal school visit category subcomponent (i.e., principal/supervisor or other trained administrator, impartial independent trained evaluator(s), and trained peer observer) shall be generated between 1-4. Such teacher observation category or principal school visit category subcomponent scores must incorporate all evidence collected and observed over the course of the school year and shall also generate scores between 1-4. Scores for each subcomponent of the observation or school visit category shall be combined using a weighted average computed within the constraints of Subpart 30-3 of the Rules of the Board of Regents, producing an overall observation or school visit category score between 1-4.

• Based on comments from the field, section 30-3.11 is amended to clarify that teacher and principal improvement plans shall be subject to collective bargaining to the extent required under Article 14 of the Civil Service Law.

• Section 30-3.13 is amended to clarify that corrective action plans may require changes to a collective bargaining agreement subject to collective bargaining under Article 14 of the Civil Service Law.

4. COSTS:

a. Costs to State government: The amendment provides districts and BOCES with greater flexibility in their implementation of Education Law section 3012-d and does not impose any costs on State government, including the State Education Department, beyond those costs imposed by the statute.

b. Costs to local government: Education Law section 3012-d, as added by Chapter 56 of the Laws of 2015, establishes requirements for the conduct of annual professional performance reviews (APPR) of classroom teachers and building principals employed by school districts and boards of cooperative educational services (BOCES) for the 2015-2016 school year and thereafter. The amendment provides districts and BOCES with greater flexibility in their implementation of Education Law section 3012-d and does not impose any costs on local government, beyond those costs imposed by the statute.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.

6. PAPERWORK:

The proposed amendment will not increase reporting or recordkeeping requirements beyond existing requirements.

7. DUPLICATION:

The rule does not duplicate existing State or Federal requirements.

8. ALTERNATIVES:

The proposed amendment is necessary to provide districts and BOCES greater flexibility in their implementation of Education Law § 3012-d and, therefore, no alternatives were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards concerning the APPR for classroom teachers and building principals as established in Education Law §§ 3012-c and 3012-d.

10. COMPLIANCE SCHEDULE:

The proposed amendment will become effective on its stated effective date. No further time is needed to comply.

Regulatory Flexibility Analysis

(a) Small businesses:

The proposed amendment provides school districts and boards of cooperative educational services (BOCES) with greater flexibility in implementing the provisions of Education Law §§ 3012-c and 3012-d, and Subparts 30-2 and 30-3 of the Rules of the Board of Regents consistent with feedback from stakeholders requesting revisions to the regulations. The proposed amendment provides flexibility by authorizing districts and BOCES to use additional measures in the student performance category, increased flexibility in scoring observations in the observation category, clarifying the collective bargaining requirements surrounding teacher/principal improvement plans, and clarifying that corrective action plans may require changes to collective bargaining agreements, subject to negotiation under Article 14 of the Civil Service Law. The rule does not impose any reporting, recordkeeping or other compliance requirements, and will not have an adverse economic impact, on small business. Because it is evident from the nature of the rule that it does not affect small businesses, no further steps were needed to ascertain that fact and one were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

(b) Local governments:

1. EFFECT OF RULE:

The rule applies to each of the approximately 695 school districts and 37 boards of cooperative educational services (BOCES) in the State.

2. COMPLIANCE REQUIREMENTS:

In September 2015, Governor Andrew Cuomo formed the Common Core Task Force to undertake a comprehensive review of the current status and use of the Common Core State Standards and assessments in New York and to recommend potential reforms to the system. Following multiple meetings, the Task Force reviewed and discussed information presented at public sessions and submitted through the website, and has made a number of recommendations regarding the implementation of the Common Core Standards.

On December 10, 2015, the Task Force released their report, affirming that New York must have rigorous, high quality education standards to improve the education of all of our students and hold our schools and districts accountable for students’ success but recommended that the Common Core standards be thoroughly reviewed and revised consistent as reflected in the report and that the State assessments be amended to reflect such revisions. In addition, the Task Force recommended that until the new system is fully phased in, the results from the grades 3-8 English language arts and mathematics State assessments and the use of any State-provided growth model based on these tests or other State assessments shall not have consequence for teachers or students. Specifically, Recommendation 21 from the Task Force’s Final Report (“Report”) provides as follows:

“…State-administered standardized ELA and Mathematics assessments for grades three through eight aligned to the Common Core or updated standards shall not have consequences for individual students or teachers. Further, any growth model based on these Common Core tests or other state assessments shall not have consequences and shall only be used on an advisory basis for teachers. The transition phase shall last until the start of the 2019-2020 school year”.

The Department has continued to solicit feedback and input from the various stakeholder groups regarding the implementation of the requirements of the transition period, and of the implementation of the requirements of Subpart 30-3 of the Rules of the Board of Regents generally. The proposed amendment reflects areas where there has been consistent feedback from stakeholders requesting a revision to the regulations.

Proposed amendment

In an effort to provide districts and BOCES with greater flexibility in implementing the provisions of Education Law §§ 3012-c and 3012-d, and Subparts 30-2 and 30-3 of the Rules of the Board of Regents, the proposed amendment makes the following changes:

• Sections 30-2.3(c) and 30-3.3(c) are amended to clarify that transition scores and ratings, calculated pursuant to Sections 30-2.14 and 30-3.17, must be provided to teachers and principals, no later than September 1st of the school year immediately following the school year for which the teacher or principal’s performance is evaluated during the transition period (2015-16 through 2018-19 school years). Original final ratings for such teachers and principals must be provided by September 1st or as soon as practicable thereafter, during the transition period. Educators whose APPRs are not based on 3-8 ELA/math State assessments or State-provided growth scores and do not receive transition scores and ratings shall continue to receive their final APPR ratings no later than September 1st. Sections 30-3.4 and 30-3.5 are amended to clarify the measures that may be used in the student performance category of a teacher’s or principal’s evaluation, and the methodology by which subcomponent and overall scores must be calculated in the teacher observation and principal school visit categories. Section 30-3.4 applies to teacher’s evaluations under Education Law § 3012-d, and section 30-3.5 of the Regents Rules applies to principal’s evaluations under Education Law § 3012-d.

• The amendments to sections 30-3.4 and 30-3.5 provide that in the first mandatory subcomponent of the student performance category of a teacher’s or principal’s evaluation, for a teacher or principal whose courses do not end in a State-created or administered test or where a State-provided growth score is not determined, the SLOs set for such courses may incorporate district or BOCES-wide or school or program-wide results from State-created or administered tests, or other student assessments approved by the Department. Where a course does end in a State-created or administered assessment for which there is no State-provided growth model, such assessment must be used as the underlying assessment for such SLO. Provided, however, that during the 2015-16 school year, while the Department transitions to a new computer based examination, the district shall determine whether to use the New York State Alternate Assessment (NYSAA) as the underlying assessment for such SLO. In instances where a district determines not to use the NYSAA, the district must determine whether to use SLOs based on a list of approved student assessments, or district- or-BOCES-wide results based on State/Regents assessments, or other assessments approved by the Department, as defined by the commissioner in guidance.

• Section 30-3.5 is amended to require districts to develop back-up SLOs for all principals whose buildings or programs contain courses that end in a State-created or administered test for which there is a State-provided growth model, to use in the event that no State-provided growth score can be generated for such principals.

• The amendments to sections 30-3.4 and 30-3.5 also provide that in the optional second subcomponent of the student performance category, if a measure based on a second State-provided growth score on a state-created or administered test is selected, this measure may incorporate district- or BOCES-wide or school- or program-wide, group, team, or linked growth results using available State-provided growth scores that are locally-computed. If a growth score based on a State-designed supplemental assessment, calculated using a State-provided or approved growth model is selected, such growth score may include district- or BOCES-wide or school- or program-wide group, team, or linked results where the State-approved growth model is capable of generating such a score.

• Sections 30-3.4 and 30-3.5 are further amended to clarify that each observation or school visit must be evaluated based on a State-approved rubric aligned to the New York State teaching standards or ISLLC standards (as applicable) and an overall score for each teacher observation category or principal school visit category subcomponent (i.e., principal/supervisor or other trained administrator, impartial independent trained evaluator(s), and trained peer observer) shall be generated between 1-4. Such teacher observation category or principal school visit category subcomponent scores must incorporate all evidence collected and observed over the course of the school year and shall also generate scores between 1-4. Scores for each subcomponent of the observation or school visit category shall be combined using a weighted average computed within the constraints of Subpart 30-3 of the Rules of the Board of Regents, producing an overall observation or school visit category score between 1-4.

• Based on comments from the field, section 30-3.11 is amended to clarify that teacher and principal improvement plans shall be subject to collective bargaining to the extent required under Article 14 of the Civil Service Law.

• Section 30-3.13 is amended to clarify that corrective action plans may require changes to a collective bargaining agreement subject to collective bargaining under Article 14 of the Civil Service Law.

3. PROFESSIONAL SERVICES:

The proposed rule does not impose any additional professional services requirements on local governments beyond those imposed by, or inherent in, the statute.

4. COMPLIANCE COSTS:

There are no additional costs impose by the proposed amendment, beyond those imposed by statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The rule does not impose any additional technological requirements on school districts or BOCES. Economic feasibility is addressed in the Costs section of the Summary of the Regulatory Impact Statement submitted herewith.

6. MINIMIZING ADVERSE IMPACT:

The rule is necessary to provide districts and BOCES with greater flexibility in implementing the provisions of Education Law §§ 3012-c and 3012-d. Because Education Law §§ 3012-c and 3012-d apply to all school districts and BOCES in the State, the Department did not establish differing compliance or reporting requirements or timetables or exempt schools in rural areas from coverage by the proposed amendment.

7. LOCAL GOVERNMENT PARTICIPATION:

The proposed amendment is submitted in direct response to feedback and comments provided by various stakeholder groups, including representatives of school districts and BOCES State-wide. Such stakeholder groups have consistently requested greater flexibility in implementing the provisions of Education Law §§ 3012-c and 3012-d in the areas addressed by the proposed amendment.

Comments on the proposed rule 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 rule applies to all school districts and boards of cooperative educational services (BOCES) in the State, including those located in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.

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

In September 2015, Governor Andrew Cuomo formed the Common Core Task Force to undertake a comprehensive review of the current status and use of the Common Core State Standards and assessments in New York and to recommend potential reforms to the system. Following multiple meetings, the Task Force reviewed and discussed information presented at public sessions and submitted through the website, and has made a number of recommendations regarding the implementation of the Common Core Standards.

On December 10, 2015, the Task Force released their report, affirming that New York must have rigorous, high quality education standards to improve the education of all of our students and hold our schools and districts accountable for students’ success but recommended that the Common Core standards be thoroughly reviewed and revised consistent as reflected in the report and that the State assessments be amended to reflect such revisions. In addition, the Task Force recommended that until the new system is fully phased in, the results from the grades 3-8 English language arts and mathematics State assessments and the use of any State-provided growth model based on these tests or other State assessments shall not have consequence for teachers or students. Specifically, Recommendation 21 from the Task Force’s Final Report (“Report”) provides as follows:

“…State-administered standardized ELA and Mathematics assessments for grades three through eight aligned to the Common Core or updated standards shall not have consequences for individual students or teachers. Further, any growth model based on these Common Core tests or other state assessments shall not have consequences and shall only be used on an advisory basis for teachers. The transition phase shall last until the start of the 2019-2020 school year”.

The Department has continued to solicit feedback and input from the various stakeholder groups regarding the implementation of the requirements of the transition period, and of the implementation of the requirements of Subpart 30-3 of the Rules of the Board of Regents generally. The proposed amendment reflects areas where there has been consistent feedback from stakeholders requesting a revision to the regulations.

Proposed amendment

In an effort to provide districts and BOCES with greater flexibility in implementing the provisions of Education Law §§ 3012-d and Subparts 30-2 and 30-3 of the Rules of the Board of Regents, the proposed amendment makes the following changes:

• Sections 30-2.3(c) and 30-3.3(c) are amended to clarify that transition scores and ratings, calculated pursuant to Sections 30-2.14 and 30-3.17, must be provided to teachers and principals, no later than September 1st of the school year immediately following the school year for which the teacher or principal’s performance is evaluated during the transition period (2015-16 through 2018-19 school years). Original final ratings for such teachers and principals must be provided by September 1st, or as soon as practicable thereafter, during the transition period. Educators whose APPRS are not based on 3-8 ELA/math State assessments or State-provided growth scores and do not receive transition scores and ratings shall continue to receive their final APPR ratings no later than September 1st. Sections 30-3.4 and 30-3.5 are amended to clarify the measures that may be used in the student performance category of a teacher’s or principal’s evaluation, and the methodology by which subcomponent and overall scores must be calculated in the teacher observation and principal school visit categories. Section 30-3.4 applies to teacher’s evaluations under Education Law § 3012-d, and section 30-3.5 of the Regents Rules applies to principal’s evaluations under Education Law § 3012-d.

• The amendments to sections 30-3.4 and 30-3.5 provide that in the first mandatory subcomponent of the student performance category of a teacher’s or principal’s evaluation, for a teacher or principal whose courses do not end in a State-created or administered test or where a State-provided growth score is not determined, the SLOs set for such courses may incorporate district or BOCES-wide or school or program-wide results from State-created or administered tests, or other student assessments approved by the Department. Where a course does end in a State-created or administered assessment for which there is no State-provided growth model, such assessment must be used as the underlying assessment for such SLO. Provided, however, that during the 2015-16 school year, while the Department transitions to a new computer based examination, the district shall determine whether to use the New York State Alternate Assessment (NYSAA) as the underlying assessment for such SLO. In instances where a district determines not to use the NYSAA, the district must determine whether to use SLOs based on a list of approved student assessments, or district- or-BOCES-wide results based on State/Regents assessments, or other assessments approved by the Department, as defined by the commissioner in guidance.

• Section 30-3.5 is amended to require districts to develop back-up SLOs for all principals whose buildings or programs contain courses that end in a State-created or administered test for which there is a State-provided growth model, to use in the event that no State-provided growth score can be generated for such principals.

• The amendments to sections 30-3.4 and 30-3.5 also provide that in the optional second subcomponent of the student performance category, if a measure based on a second State-provided growth score on a state-created or administered test is selected, this measure may incorporate district- or BOCES-wide or school- or program-wide, group, team, or linked growth results using available State-provided growth scores that are locally-computed. If a growth score based on a State-designed supplemental assessment, calculated using a State-provided or approved growth model is selected, such growth score may include district- or BOCES-wide or school- or program-wide group, team, or linked results where the State-approved growth model is capable of generating such a score.

• Sections 30-3.4 and 30-3.5 are further amended to clarify that each observation or school visit must be evaluated based on a State-approved rubric aligned to the New York State teaching standards or ISLLC standards (as applicable) and an overall score for each teacher observation category or principal school visit category subcomponent (i.e., principal/supervisor or other trained administrator, impartial independent trained evaluator(s), and trained peer observer) shall be generated between 1-4. Such teacher observation category or principal school visit category subcomponent scores must incorporate all evidence collected and observed over the course of the school year and shall also generate scores between 1-4. Scores for each subcomponent of the observation or school visit category shall be combined using a weighted average computed within the constraints of Subpart 30-3 of the Rules of the Board of Regents, producing an overall observation or school visit category score between 1-4.

• Based on comments from the field, section 30-3.11 is amended to clarify that teacher and principal improvement plans shall be subject to collective bargaining to the extent required under Article 14 of the Civil Service Law.

• Section 30-3.13 is amended to clarify that corrective action plans may require changes to a collective bargaining agreement subject to collective bargaining under Article 14 of the Civil Service Law.

3. COSTS:

The proposed amendment will not impose any additional costs beyond those imposed by, or inherent in, the statute.

4. MINIMIZING ADVERSE IMPACT:

The rule is necessary to provides districts and BOCES with greater flexibility in their implementation of Education Law §§ 3012-c and 3012-d. Because Education Law §§ 3012-c and 3012-d apply to all school districts and BOCES in the State, the Department did not prescribe differing compliance or reporting requirements for rural areas of the State.

5. RURAL AREA PARTICIPATION:

The proposed amendment provides districts and BOCES with greater flexibility in their implementation of Education Law §§ 3012-c and 3012-d and Subparts 30-2 and 30-3 of the Rules of the Board of Regents. The proposed amendments are submitted in response, in part, to comments received from rural school districts and BOCES.

The Department has solicited comments on the proposed amendment from the Rural Area Advisory Council, whose members live or work in rural areas of this State.

Job Impact Statement

The purpose of proposed rule is necessary to provide districts and BOCES’ State-wide with a broader range of options with respect to their APPR plans through additional available measures in the student performance category, increased flexibility in scoring observations in the observation category and to clarify the collective bargaining requirements surrounding teacher/principal improvement plans and to clarify that corrective action plans may require changes to collective bargaining agreements, subject to negotiation under Article 14 of the Civil Service Law, while they are negotiating their annual professional performance review plans under Education Law § 3012-d for the 2016-2017 school year. Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York State, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Assessment of Public Comment

The agency received no public comment since publication of the last assessment of public comment.