Meeting of the Board of Regents | July 2003

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	James A. Kadamus
COMMITTEE:	Full Board
TITLE OF ITEM:	Proposed Amendment to the Regulations of the Commissioner Relating to the Education of Students with Limited English Proficiency
DATE OF SUBMISSION:	June 19, 2003
PROPOSED HANDLING:	Action (Consent Agenda)
RATIONALE FOR ITEM:	Comply with Federal Legislation
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY:

Attached is a proposed amendment to Part 154 of the Regulations of the Commissioner of Education relating to the education of students with limited English proficiency. The proposed amendment was adopted by the Board of Regents as an emergency measure at the April 2003 meeting and is now being presented for adoption as a permanent rule. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

The proposed amendment of Part 154 is necessary to conform the Regulations of the Commissioner to the federal No Child Left Behind Act of 2001, which requires that the English proficiency of all students with limited English proficiency be measured annually as part of the school accountability provisions of the Act. The purposes of the proposed amendment are to: (1) establish criteria for the identification and assessment of students with limited English proficiency through use of, respectively, the Language Assessment Battery-Revised (LAB-R) test and the New York State English as a Second Language Test (NYSESLAT); (2) establish curriculum and reporting requirements for such students; and (3) update provisions in the regulations concerning such students. With the adoption of the LAB-R and the NYSESLAT, local educational agencies will be required to assess a student�s English language proficiency level for purposes of initial identification and continued eligibility for services. The results of these tests will be reported in terms of designated levels of proficiency, not percentile scores. The first administration of the NYSESLAT was in May 2003 and the results of this test will be the only data the schools will have available to make decisions as to which students are limited English proficient and entitled to services during the upcoming school year.

A Notice of Proposed Rule Making was published in the State Register on May 14, 2003. In addition to adopting the amendment as a permanent rule, a second emergency adoption is necessary to ensure that the rule remains continuously in effect until the effective date of the permanent rule. A Statement of the Facts and Circumstances Which Necessitate Emergency Action is attached.

VOTED: That Part 154 of the Regulations of the Commissioner of Education be amended as submitted, effective July 22, 2003, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule, and thus provide for the State's continuing compliance with the federal No Child Left Behind Act of 2001; and

VOTED: That Part 154 of the Regulations of the Commissioner of Education be amended as submitted, effective August 7, 2003.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207, 215, 2117, 3204, 3602 and 3713

Part 154 of the Regulations of the Commissioner of Education is amended, effective August 7, 2003, as follows:

PART 154

APPORTIONMENT AND SERVICES FOR PUPILS WITH LIMITED ENGLISH

PROFICIENCY

154.1 Scope of Part.

The purpose of this Part is to establish standards for school districts having pupils with limited English proficiency to assure that such pupils are provided opportunities to achieve the same educational goals and standards as the general student population. In accordance with the provisions of this Part, each school district shall provide pupils with limited English proficiency equal access to all school programs and services offered by the district commensurate with their ages and grade level, including access to programs required for graduation.

154.2 Definitions.

(a) Pupils with limited English proficiency shall mean pupils who by reason of foreign birth or ancestry, speak a language other than English, and

(1) either understand and speak little or no English; or

(2) [score at or below the 40th percentile, or its equivalent as determined by the commissioner,] score below a state designated level of proficiency, on [an English language assessment instrument approved by the commissioner] the Language Assessment Battery-Revised (LAB-R) or the New York State English as a Second Language Achievement Test (NYSESLAT); provided, however, that no pupil shall be served in a bilingual or English as a second language education program pursuant to this Part for a period in excess of three years from the date of enrollment in school unless such period is extended by the commissioner with respect to an individual pupil in accordance with the provisions of subdivision 2 of section 3204 of the Education Law.

(b) Initial identification is the process followed to determine if the pupil is limited English proficient, at the time of a pupil's enrollment in the New York State public school system for the first time or at the time of a pupil's reentry into the New York State public school system with no available record of prior screening, [using appropriate and unbiased English language assessment instruments approved by the commissioner] based upon such pupil scoring below a state designated level of proficiency on the LAB-R.

(c) Annual English language assessment is the process followed to determine if a pupil with limited English proficiency continues to be limited English proficient, [using appropriate and unbiased English language assessment instruments approved by the commissioner] based upon such pupil scoring below a state designated level of proficiency on the NYSESLAT.

[(d) For grades 7 through 12 in school years prior to the 1999-2000 school year, and for grades K-6 in school years prior to the 2000-2001 school year, free-standing English as a second language program shall mean a program of instruction composed of an English as a second language component, and content area instruction in English supported by English as a second language methodologies. Such instruction shall take into account the first language and culture of such pupils.

(1) The English as a second language component shall be designed to develop skills in understanding, speaking, reading, writing and communicating in English and shall be provided for a minimum of one unit of study or its equivalent.

(2) Content area instruction in English supported by English as a second language methodologies, employed in a systematic and structured way, shall be designed to develop cognitive skills of limited English proficient pupils.

(e) For grades 7 through 12 in school years prior to the 1999-2000 school year, and for grades K-6 in school years prior to the 2000-2001 school year, bilingual education program shall mean a transitional program of instruction which includes an English as a second language component, content area instruction in the native language and English and a native language arts component. Such instruction shall take into account the first language and culture of such pupils.

(1) The English as a second language component shall be designed to develop skills in understanding, speaking, reading, writing and communicating in English.

(2) Content area instruction shall provide instruction in the native language and English designed to teach subjects to limited English proficient pupils.

(3) The native language arts component shall provide instruction in a language other than English, designed to develop communication skills, including those of listening, speaking, reading and writing, in a student's home language as well as an appreciation of the history and culture of the United States and the country of origin, through the study of literature. Such component shall be provided for a minimum of one unit of study or its equivalent.]

[f] (d) For grades [7] kindergarten through [12] twelve [in the 1999-2000 school year and thereafter, and for grades K-6 in the 2000-2001 school year and thereafter], free-standing English as a second language program shall mean a program of instruction composed of two components: a language arts instructional component and a content area instructional component. Such instruction shall take into account the first language and culture of such pupils.

(1) the language arts instructional component shall include English language arts instruction and English as a second language instruction. The learning standards for English language arts (ELA) and English as a second language (ESL), and key ideas and performance indicators for such standards, [which are set forth in the publication, Learning Standards for English Language Arts,] shall serve as the basis for [the English as a second language curriculum] the ELA and ESL curriculums, respectively. [(Learning Standards for English Language Arts, revised edition, March 1996, Education Department, Albany, New York 12234, available at the Education Department, Office of Bilingual Education, Education Building Annex, Room 367, Albany, NY 12234).]

(i) English language arts instruction shall be provided to students at the advanced [and transitional levels] level of English language proficiency for a minimum of one unit of study or its equivalent, divided into substantially equal daily allotments of instructional time.

(ii) English as a second language instruction shall be designed to develop skills in understanding, speaking, reading, writing and communicating in English through the integration of academic content appropriate for the pupil's age, grade level and English language skills, and shall be provided in substantially equal daily allotments of instructional time to:

(a) pupils in grades [K through 8] kindergarten through eight at beginning and intermediate levels of English language proficiency for a minimum of two units of study or its equivalent;

(b) pupils in grades [K through 8] kindergarten though eight at advanced [and transitional] levels of English language proficiency for a minimum of one unit of study or its equivalent;

(c) pupils in grades [9 through 12] nine through twelve at the beginning level of English language proficiency for a minimum of three units of study or its equivalent;

(d) pupils in grades [9 through 12] nine through twelve at intermediate levels of English language proficiency for a minimum of two units of study or its equivalent;

(e) pupils in grades [9 through 12] nine through twelve at advanced [and transitional levels] level of English language proficiency for a minimum of one unit of study or its equivalent.

(2) The content area instructional component shall provide grade and age level appropriate instruction in the required content area subjects in English supported by English as a second language methodologies, employed in a systematic and structured way, and shall be designed to develop cognitive skills of limited English proficient pupils.

[(g)] (e) For grades [7] kindergarten through [12] twelve [in the 1999-2000 school year and thereafter, and for grades K-6 in the 2000-2001 school year and thereafter], bilingual education program shall mean a program of instruction composed of two components: a language arts instructional component, and a content area instructional component. Such instruction shall take into account the first language and culture of such pupils.

(1) The language arts instructional component shall include English language arts (ELA) instruction, native language arts (NLA) instruction and English as a second language (ESL) instruction. The learning standards for [English language arts] ELAand ESL, and key ideas and performance indicators for such standards, [which are set forth in the publication, Learning Standards for English Language Arts,] shall serve as the basis for the NLA and ESL curricula [(Learning Standards for English Language Arts, revised edition, March 1996, Education Department, Albany, New York 12234, available at the Education Department, Office of Bilingual Education, Education Building Annex, Room 367, Albany, NY 12234)].

(i) English language arts instruction shall be provided to students at the advanced [and transitional levels] level of English language proficiency for a minimum of one unit of study or its equivalent, divided into substantially equal daily allotments of instructional time.

(ii) English as a second language (ESL) instruction shall be designed to develop skills in understanding, speaking, reading, writing and communicating in English through the integration of academic content appropriate for the pupil's age, grade level and English language skills. The time requirements for ESL instruction within a bilingual education program shall be the same as those established for the ESL instruction within a free-standing ESL program, as prescribed in subdivision [(f)] (d) of this section.

(iii) Native language arts instruction shall be provided to students in a bilingual education program for at least one unit of study or its equivalent and shall be provided in substantially equal daily allotments of instructional time.

(2) The content area instructional component shall provide grade and age level appropriate instruction in the required content area subjects in the native language and English, in a systematic and structured way, and shall be designed to develop the cognitive skills of limited English proficient pupils.

[(h)] (f) Exception. A school district, which is subject to a court order or is a party to a preexisting agreement with an appropriate Federal agency requiring programs substantially equivalent to or in excess of those required under these regulations, will not be required to comply with these regulations and will be in compliance with this Part as long as the district implements the court order or agreement and fulfills all other requirements of this Part which are not addressed by such court order or agreement.

154.3 Board of education responsibility.

[Effective July 1, 1990 each] Each board of education, including the board of each community school district of the city of New York, shall:

(a) adopt and implement a written policy concerning the education of pupils with limited English proficiency which shall include:

(1) its philosophy for the education of such pupils;

(2) administrative practices and procedures to:

(i) diagnostically screen pupils for limited English proficiency pursuant to Part 117 of this Title;

(ii) identify such pupils with limited English proficiency;

(iii) annually evaluate each such pupil including each such pupil's performance in content areas to measure the pupil's academic progress.

(3) an assurance of access to appropriate instructional and support services for such pupils, including guidance programs pursuant to section 100.2(j) of this Title;

(4) [assure] an assurance that each such pupil has equal opportunities to participate in all school programs and extracurricular activities as non-limited English proficient pupils; and

(5) a description of the nature and scope of the instructional programs and services currently available to limited English proficient pupils to help them acquire English proficiency; and

(b) submit to the commissioner the following documents in the form and by the dates prescribed by the commissioner:

(1) a copy of such written policy;

(2) a report by building of the number of pupils initially identified [and annually evaluated] as being limited English proficient and the number of limited English proficient pupils served in the preceding school year;

(3) a report by building of the number of pupils annually evaluated as being limited English proficient in the preceding school year;

[(3)] (4) a report by building of the number and qualifications of teachers and support personnel providing services to pupils with limited English proficiency; and

[(4)] (5) a description by building of the curricular and extracurricular services provided to pupils with limited English proficiency;

(c) distribute to the parents, or other persons in parental relation to pupils with limited English proficiency, school related information in English or when necessary the language they understand;

(d) submit to the commissioner the results of the annual evaluation of limited English proficient pupils, including test data and any additional data required by the commissioner, in the format specified by the commissioner; and

(e) refer limited English proficient pupils, who are suspected of having a [handicapping condition] disability, to the committee on special education in accordance with Part 200 of this Title and assure that a bilingual multidisciplinary assessment is conducted in accordance with section 200.4(b) of this Title before the committee identifies pupils with limited English proficiency as having a [handicapping condition] disability.

154.4 District comprehensive plan and program requirements for districts claiming State aid for the operation of programs for pupils with limited English proficiency.

The provisions of this section shall apply to programs operated in the 1990-91 school year and thereafter and shall be the basis for aid payable in the 1991-92 school year and thereafter. In such districts, all limited English proficient students shall be entitled to receive services in accordance with subdivisions 2 and 2-a of section 3204 of the Education Law in a bilingual education or free-standing English as a second language program.

[(a) In order to qualify for State aid for instruction provided to pupils with limited English proficiency in grades kindergarten through [12] twelve, a school district shall develop a plan that describes how it will implement the additional requirements for its free-standing English as a second language program and bilingual education program, as prescribed in section 154.2(f) and (g) of this Part. Such plan shall be submitted to the department by September 1, 1999, along with the district's comprehensive plan for the education of pupils with limited English proficiency required under this section.]

[(b)](a) In order to qualify for State aid for instruction provided to pupils with limited English proficiency, a school district, in addition to meeting the requirements of section 154.3 of this Part shall:

(1) submit to the department a district comprehensive plan to meet the educational needs of pupils with limited English proficiency. Such plan shall be submitted no later than September first of each year, and, in addition to the reporting requirements of section 154.3[(b)](a) of this Part, shall include a report of the number of limited English proficient pupils served, and a proposed budget for the operation of a State aided program. The plan shall:

(i) set forth the information and assurances specified in section 154.3 of this Part;

(ii) specify the criteria used by the district to place limited English proficient pupils in appropriate bilingual or free-standing English as a second language programs;

(iii) provide a description of the nature and scope of the bilingual and/or English as a second language services currently available to limited English proficient pupils;

(iv) include an evaluation plan outlining the time schedule for data collection, approved assessment devices or techniques, and time schedule for the submission of data to the department in the format specified by the department;

(v) provide a description of the district and school level procedures for the management of the program, including: staffing, site selection, parental notification, coordination of funds, training and program planning; and

(vi) provide an assurance that the district shall comply with the requirements of this Part and of the provisions of the Education Law governing programs for pupils with limited English proficiency and State aid for such programs; and

(2) ensure that the provisions of section 3204 of the Education Law with respect to the instruction of limited English proficient pupils are adhered to.

(c) Types of programs. (1) Bilingual Education Program. Each school district which has an enrollment of 20 or more pupils with limited English proficiency of the same grade level assigned to a building, all of whom have the same native language which is other than English, shall provide such pupils with bilingual education programs.

(2) Free-standing English as a Second Language Program. Each school district which has pupils with limited English proficiency of the same grade level assigned to a building, but which does not have 20 of such pupils with the same native language which is other than English, shall provide either a free-standing English as a second language program, or a bilingual education program to such pupils.

(d) Support services. Each school district with limited English proficient pupils participating in bilingual or free-standing English as a second language programs shall provide appropriate support services needed by such pupils to achieve and maintain a satisfactory level of academic performance. Such services may include, but need not be limited to, individual counseling, group counseling, home visits, and parental counseling. Where appropriate, such services shall be provided in the first language of the pupil and the pupil's parents or other persons in parental relation to the pupil.

(e) Transitional services. Each school district shall ensure a transition for former limited English proficient pupils transferring from a bilingual or free-standing English as a second language program into an English mainstream program. Transitional services shall be provided for the first year after the pupil is placed in the English mainstream instructional program. Such pupils shall not be counted for purposes of limited English proficiency aid.

(f) In-service training. Each school district with limited English proficient pupils shall provide in-service training to all personnel providing instruction or other services to such pupils in order to enhance their appreciation for the pupils' native languages and cultures and their ability to provide appropriate instructional and support services.

(g) Parental notification. (1) The parents or other persons in a parental relation to a pupil designated as limited English proficient shall be notified, in English and the language they understand, of their child's placement in an instructional bilingual or free-standing English as a second language program and their options as set forth in paragraphs (2) and (3) of this subdivision. School districts offering programs to limited English proficient pupils shall make an effort to meet with the parents or other persons in parental relation to such pupils, at least twice a year, to help them understand the goals of the program and how they might help their children.

(2) The parents or other persons in parental relation to a pupil designated as limited English proficient shall have the option to withdraw their child from participation in an instructional bilingual education program, provided that:

(i) the parents or other persons in parental relation to a pupil designated as limited English proficient meet with the school principal along with the school or district supervisor of bilingual education to discuss and explain further the nature, purposes, educational values of the program and the skills required of personnel;

(ii) as a minimum such pupil shall participate in a free-standing English as a second language program.

(3) In a school building where the number of eligible pupils does not require the offering of a bilingual education program, parents or other persons in parental relation to a pupil identified as limited English proficient shall have the option of transferring their child to a school within the district provided such program is available at such other school. A parent who chooses not to exercise the transfer option shall be informed that his or her child shall participate in a free-standing English as a second language program.

(4) Parents or other persons in parental relation to a pupil designated as limited English proficient who is a new entrant, as defined in section 117.2 (d) of this Title, shall be provided an orientation session on the state standards, assessments, school expectations and general program requirements for the bilingual education program and the free-standing English as a second language program. Such orientation shall take place within the first semester of their child's enrollment in the school and, when needed, shall be provided in the first language of the pupil's parents or other persons in parental relation to the pupil.

(h) No later than September 1st of each year, each school district eligible for State aid for services provided to pupils with limited English proficiency in the preceding school year shall submit, in addition to the data required pursuant to [section] sections 154.3 and 154.4 of this Part, a fiscal report containing such information as the commissioner may prescribe, including but not limited to:

(1) the number of pupils with limited English proficiency served;

(2) an accounting of the expenditure of limited English proficiency aid to supplement the basic program for such pupils; and

(3) an evaluation of the results obtained from the limited English proficiency aid provided to the district.

(i) The commissioner shall provide an annual report to the Board of Regents.

(j) A pupil whose score on [an English language assessment instrument] the LAB-R or the NYSESLAT,as specified in section 154.2(a),(b) and (c) of this Part, is a result of a [handicapping condition] disability shall be provided special education programs and services in accordance with the individualized education program (IEP) developed for such pupil pursuant to Part 200 of this Title, and shall also be eligible for services pursuant to this Part when such services are recommended in the IEP. A pupil with a [handicapping condition] disability receiving services in accordance with the provisions of this section shall be counted as a pupil served for the purposes of computing limited English proficiency aid as well as being counted for public excess cost aid for children with handicapping conditions.

[(k) Variances. The commissioner may grant a variance to a school district from any of the requirements of subdivision (b) of this section upon a finding that:

(1) the granting of a variance is consistent with Education Law, section 3204; and

(2) the granting of a variance will enable the school or school district to implement a program designed to provide excellence in education that is substantially equivalent to a program which meets all requirements of such subdivision.

154.5 Extension.

(a) School districts operating programs under this Part for pupils with limited English proficiency in grades seven through [12] twelve may apply for a one-year extension of time, for the 1999-2000 school year, to comply with the requirements established in section 154.2(f) and (g) of this Part. A request for an extension shall be in writing and shall be filed with the commissioner no later than September 1, 1999.

(b) An extension shall be granted pursuant to this section upon a finding by the commissioner that:

(1) the school district will meet the requirements set forth in section 154.2(d) and (e) of this Part for the 1999-2000 school year;

(2) the learning standards for English language arts, and key ideas and performance indicators for such standards, as set forth in sections 154.2(f)(1) and (g)(1) of this Part, serve as the basis for its free-standing English as a second language program and its bilingual education program for the 1999-2000 school year;

(3) the school district has developed an adequate plan for the 2000-2001 school year to implement the additional requirements for its free-standing English as a second language and bilingual education programs, as prescribed in section 154.2(f) and (g) of this Part;

(4) the school district has provided an adequate plan to provide in-service training during the 1999-2000 school year to all personnel providing instruction or other services to pupils with limited English proficiency, as required by section 154.2(e) of this Part; and

(5) good cause exists for such extension, which may include, but is not limited to, a finding that the school district has been unable to hire a sufficient number of qualified teachers to adequately implement the provisions of section 154.2(f) and (g) of this Part for the 1999-2000 school year or a finding that the school district lacks sufficient fiscal resources to adequately implement such provisions for such school year.]

PROPOSED AMENDMENT OF PART 154 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 207, 215, 2117, 3204, 3602 AND 3713, RELATING TO THE EDUCATION OF STUDENTS WITH LIMITED ENGLISH PROFICIENCY

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed rule is necessary to conform the Commissioner's Regulations, relating to students with limited English proficiency (LEP), to the federal No Child Left Behind Act of 2001, which requires that the English proficiency of all LEP students be measured annually as part of the school accountability provisions of the Act. The U.S. Department of Education has approved the use of the new New York State English as a Second Language Achievement Test (NYSESLAT) as the required measure for LEP students. In addition to amending the Commissioner's regulations to reflect use of the NYSESLAT, the proposed rule is also necessary to amend the Commissioner's regulations to reflect use of the Language Assessment Battery-Revised (LAB-R) for purposes of initial identification of LEP students.

With the adoption of the LAB-R and the NYSESLAT, local educational agencies will be required to assess the LEP student�s English language proficiency level for purposes of initial identification and continued eligibility, using the LAB-R and the NYSESLAT, respectively. The results of these tests will be reported in terms of designated levels of proficiency, not percentile scores. Since the current standard (40th percentile) established in Part 154 of the Commissioner's Regulations is not consistent with these designated proficiency levels, it is necessary to amend the regulations to conform to the use of the LAB-R and NYSESLAT and thereby ensure the proper identification and assessment of students with limited English proficiency, and the reporting of data concerning such students and those students who are entitled to receive bilingual or English as a second language instruction.

The proposed rule was adopted as an emergency measure, effective May 2, 2003, at the April 28-29, 2003 meeting of the Board of Regents, and will expire on July 30, 2003, 90 days after its filing with the Department of State. The proposed rule is to be adopted as a permanent rule at the July 17-18, 2003 Regents meeting, which is the first meeting scheduled after expiration of the 45-day public comment period provided for in State Administrative Procedure Act section 202(1)(a). However, pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on August 6, 2003. A lapse in the rule's effective date could disrupt administration of the State's LEP program and otherwise result in the State's noncompliance with federal requirements under the No Child Left Behind Act of 2001. A second emergency adoption is therefore necessary to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule.

Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare to ensure that the amendments to Part 154 of the Commissioner's Regulations, relating to students with limited English proficiency (LEP), that were adopted at the April 2003 Regents meeting remain continuously in effect until the effective date of their adoption as a permanent rule, and thus provide for the State's continuing compliance with the federal No Child Left Behind Act of 2001.