Meeting of the Board of Regents | May 2008

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

 

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Contracts for Excellence Comments and Eighth Emergency Action
DATE:	May 9, 2008
STRATEGIC GOAL:	1, 2, 3 and 5
AUTHORIZATION(S):

 

SUMMARY

 

Issue for Decision

 

Should the Board of Regents adopt as an eighth emergency action the proposed revisions to section 100.13 and section 170.12 of the Regulations of the Commissioner made in response to the public comments received pursuant to the March 2008 meeting and as further revised incorporating statutory changes in the State budget (Chapter 57 of the Laws of 2008) relating to Contracts for Excellence?

 

Reason(s) for Consideration

             

              Required by State statute.

 

Proposed Handling

 

This proposed amendment will come before the EMSC Committee and the Board of Regents at the May Regents meeting for adoption as an eighth emergency action, effective May 19, 2008, to adopt changes in response to public comment and enactment of the State FY 2008 budget, and to otherwise ensure that the emergency rule which was adopted at the April 2007 Regents meeting, and revised and readopted at subsequent meetings, the most recent being the March 2008 Regents meeting, remains continuously in effect until the effective date of its adoption as a permanent rule.  These proposed changes will require deferral of the permanent adoption of the proposed amendment until after expiration of the 30-day public comment period specified in the State Administrative Procedure Act.  A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached.

 

 

 

Procedural History

 

       The proposed amendment was adopted at the April 23-24, 2007 Regents meeting as an emergency measure, effective April 27, 2007.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 16, 2007.

 

              At their June 25-26, 2007 meeting, the Board of Regents revised the proposed rule, and adopted the revised rule by emergency action, effective July 26, 2007.  A Notice of Emergency Adoption and Revised Rule Making was published in the August 8, 2007 State Register.

 

              At their July 25, 2007 meeting, the Board of Regents further revised the proposed rule in response to public comment and adopted the revised rule as an emergency action, effective July 31, 2007.  A second Notice of Emergency Adoption and Revised Rule Making was published in the August 15, 2007 State Register.

             

              At their September 10, 2007, October 23, 2007 and January 14-15, 2008 meetings, the Board of Regents readopted the July emergency rule to ensure that the emergency rule remains in effect until the effective date of its adoption as a permanent rule. 

              At their March 17-18, 2008 meeting, the Board of Regents revised the proposed rule based on the Department’s experience with the implementation of the Contracts for Excellence and comments from members of the Board of Regents, school districts and other interested parties.  A Notice of Revised Rule Making was published in the State Register on March 5, 2008.

 

              The March emergency rule will expire on May 19, 2008, and another emergency action is necessary at the May Regents meeting to adopt additional revisions in response to public comment on the revised rule published in the March 5, 2008 State Register, and to otherwise keep the emergency regulations in effect until they can be adopted on a permanent basis.

 

Background Information

 

              The Department worked extensively with the field in developing the implementation regulations for the Contracts for Excellence and the Web-based process for submission of the Contracts.  To facilitate the preparation and submission of the Contract proposals, the Regents adopted regulations by emergency action within weeks after final passage of the State budget.  Subsequent actions have been taken by the Regents to revise and adopt the regulations so that school districts could meet their statutory obligations under the State budget.  The most recent revisions were published in the State Register on March 5, 2008 and were adopted by emergency action at the March 17-18, 2008 Regents meeting.  Comments that have been received on the seventh emergency action and latest version of the regulations suggest additional improvements to the regulations.  In addition, the 2008-09 State Budget includes revisions to the statutory provisions related to the Contracts for Excellence that require changes to the regulations. Attachment 1 is a list of 2008-09 Contract districts. Attachment 2 includes a summary of the 2008-2009 State Budget statutory changes relating to Contracts for Excellence. 

 

Comments Received

 

Public comments received on the regulation addressed many categories, most notably:

• Public participation/public process
• Complaint procedures
• Class size reduction
• English language learners
• Contract approval and amendment
• Allocation, targeting and maintenance of effort 

 

The comments came from a broad range of constituents; parents, students, advocacy groups, and other organizations.  Comments suggested simplifying the complaint process and making it available to all interested persons.  Class size generated comments referring to enrollment declines being responsible for the decreases.  Those interested in public participation commented on changing the requirements for public hearings and requiring a record of all public comments.   The formal public comment period ran until Friday, April 4 and a large number of the comments received were received on April 3 and 4.  An Assessment of Public Comment is attached which outlines the comments received and the Department’s response, including where changes were made in the regulation to address the comments received.   

 

Recommendation

 

Staff recommend that the Regents take the following action:

 

              VOTED:  That section 100.13 and section 170.12 of the Regulations of the Commissioner be amended as submitted, effective May 20, 2008, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to adopt revisions to the rule in response to public comment and Chapter 57 of the Laws of 2008 and to otherwise ensure that the emergency rule that was adopted at the April 2007 Regents meeting, revised and readopted at the June and July 2007 Regents meetings, and readopted at the September and October 2007 and January and March 2008 Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule.

 

Timetable for Implementation

 

              Since the May emergency adoption will expire on July 17, 2008, before the July 28-29, 2008 Regents meeting, a ninth emergency action will be required in June to keep the emergency regulations continuously in effect until the effective date of their permanent adoption at the July Regents meeting.

 

 

 

 

 

 

 

PROPOSED ADDITION OF SECTION 100.13 AND AMENDMENT OF SECTION 170.12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 305 AND 211-d AND CHAPTER 57 OF THE LAWS OF 2007 AND CHAPTER 57 OF THE LAWS OF 2008, RELATING TO CONTRACTS FOR EXCELLENCE

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ADOPTION

              The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007 and amended by Chapter 57 of the Laws of 2008, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. 

              Education Law section 211-d requires certain school districts identified in the statute to prepare a contract for excellence, which shall describe how the total foundation aid and supplemental educational improvement plan grants shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement.  The statute requires the Commissioner to establish by regulation the allowable programs and activities for such purposes.  The statute also requires the Commissioner to prescribe a format by which each affected school district shall publicly report its expenditures of total foundation aid.

              Chapter 57 of the Laws of 2008 amended Education Law section 211-d to revise the criteria for determining which school districts are required to prepare a contract for excellence, and to add model programs for students with limited English proficiency as a sixth category of allowable programs and services.

              The proposed amendment was adopted at the April 23-24, 2007 Regents meeting as an emergency measure, effective April 27, 2007, in order to immediately establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for contracts for excellence under Education Law section 211-d, so that affected school districts may timely prepare such contracts for the 2007-2008 school year pursuant to statutory requirements.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 16, 2007. 

              At their June 25-26, 2007 meeting, the Regents substantially revised the proposed rule, and adopted the revised rule by emergency action, effective July 26, 2007.  A Notice of Emergency Adoption and Revised Rule Making was published in the August 8, 2007 State Register.

              At their July 25, 2007 meeting, the Board of Regents further revised the proposed rule in response to public comment and adopted the revised rule as an emergency action, effective July 31, 2007.  A Notice of Emergency Adoption and Revised Rule Making was published in the August 15, 2007 State Register.

              At their September 10, 2007, October 23, 2007 and January 14-15, 2008 meetings, the Board of Regents readopted the July emergency rule to ensure that the emergency rule remains in effect until the effective date of its adoption as a permanent rule. 

              At their March 17-18, 2008 meeting, the Board of Regents made substantial revisions to the proposed rule, in response to the Department's experience with the implementation of the Contracts for Excellence and discussions held with educational advocates and representatives from school boards and school administrators.  A Notice of Revised Rule Making, reflecting these revisions, was published in the State Register on March 5, 2008. 

              Further additional revisions to the rule are now proposed, as set forth in the Revised Regulatory Impact Statement submitted herewith, in response to public comment on the March 5, 2008 revised rule making and in response to Chapter 57 of the Laws of 2008.        Pursuant to State Administrative Procedure Act section 202(4-a), the revised rule cannot be adopted by regular (non-emergency) action until at least 30 days after publication of the revised rule in the State Register.  Since the Board of Regents meets at fixed intervals, the earliest the proposed amendment can be adopted by regular action, after expiration of the 30-day public comment period for a revised rule making, is the July 28-29, 2008 Regents meeting.  However, the March emergency adoption will expire on May 19, 2008, 60 days after its filing with the Department of State on March 21, 2008.  A lapse in the rule's effectiveness would disrupt implementation of the contract for excellence program under Education Law section 211-d, and adversely affect the preparation and approval of contracts for the 2008-2009 school year. 

              An eighth emergency adoption is therefore necessary for the preservation of the general welfare to immediately adopt revisions to the rule in response to public comment and statutory changes enacted pursuant to Chapter 57 of the Laws of 2008, and to otherwise ensure that the emergency rule that was adopted at the April 2007 Regents meeting, revised and readopted at the June and July Regents meetings, and readopted at the September and October 2007, and January and March 2008 Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule.

              It is anticipated that the proposed rule will be presented for permanent adoption at the July 28-29, 2008 Regents meeting, which is the first scheduled meeting after expiration of the 30-day public comment period for revised rule makings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROPOSED ADDITION OF SECTION 100.13 AND AMENDMENT OF SECTION 170.12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 305 AND 211-d AND CHAPTER 57 OF THE LAWS OF 2007 AND CHAPTER 58 OF THE LAWS OF 2008, RELATING TO CONTRACTS FOR EXCELLENCE

ASSESSMENT OF PUBLIC COMMENT

              Since publication of a Notice of Revised Rule Making in the State Register on March 5, 2008, the State Education Department (SED) received the following comments.

I.  Public Participation/Public Process

1.  COMMENT:

              The regulations should be revised to allow all interested parties to participate in the public process for development of Contracts for Excellence, and to not restrict participation to parents and persons in parental relation to students, teachers, administrators and distinguished educators.  The regulation should be revised to provide that public hearings held pursuant to 100.13(e) must be held in compliance with Article 7 of the Public Officers Law, relating to the Open Meetings Law.

DEPARTMENT RESPONSE:

              The Department agrees that public hearings should be open to the public, and not restricted to parents and persons in parental relation to students, teachers, administrators and distinguished educators.  Accordingly, section 100.13(e)(2)(ii)(b) has been revised to require school districts to provide reasonable notice to the public of each public hearing held as part of the public process to develop contracts for excellence; to require school districts provide public notice of the hearings to the news media and conspicuously post public notice, consistent with the notice and time provisions of the Open Meetings Law; and to provide for the participation in public hearings of any interested party including, but not limited to, parents and persons in parental relation to students, teachers, administrators and distinguished educators.

              However, the provisions in 100.13(e)(2)(i) relate to the consultation process for development of the contracts for excellence, and the statute restricts participation in such instance to parents and persons in parental relation to students, teachers, administrators and distinguished educators.  Therefore, no changes have been made to such provisions.   

2.  COMMENT:

Transcripts of public hearing comments should be posted on the district's website.

DEPARTMENT RESPONSE:

              The Department deems it sufficient that the regulation requires school districts to prepare and make available upon request, a record of public comment received, including each written comment received and the transcript of oral comments presented at the public hearings; and that the regulation requires that the district prepare, and post on a district website, a public comment assessment to include the district's response to each substantive comment and a statement of any changes made to the contracts as a result of such comment, or an explanation of why the comment's suggestions were not incorporated into the contract.

3. COMMENT:

              Revise regulation to allow the county level public hearings to incorporate the community district education council public meeting.  Suggested that draft version of the contracts could be presented at the community district level, but the developed Contract would be presented within each borough.

DEPARTMENT RESPONSE:

This would require statutory revision.  Education Law §211-d(4)(b) and (c), require, respectively, that a public hearing to be held within each county of New York City (NYC), and that each community district contract be submitted by the community superintendent to the community district education council for review and comment at a public meeting.

4. COMMENT:

              Revise or delete requirement that school district record and respond to all substantive comments. This provision is unwieldy and prohibitive within NYC.

DEPARTMENT RESPONSE:

Disagree.  As part of the public process for development of contracts, the district should be required to respond to each substantive comment, including a statement of any changes made to the contracts as a result of the comments, or an explanation why the comment's suggestions were not incorporated into the contract.

5.  COMMENT:

              Involving principal in complaint process is not advisable given their day-to-day duties; preferable to file complaint with community superintendent, to be appealed at chancellor level.  

DEPARTMENT RESPONSE:

This would require statutory revision since Education Law §211-d(7) provides initiation of complaints with either the principal or the community superintendent.

6. COMMENT:

              The commissioner should consider each district’s public process and the requirements under section 100.13(e) to ensure it was complied with before approving their contract. 

DEPARTMENT RESPONSE:

Agreed.  Section 100.13(b)(2) has been revised to clarify that the commissioner's approval will be based upon the contract meeting the provisions of the entire section 100.13, which would include the public process provisions.  In addition, this will be incorporated into the superintendent’s certification statement on the on-line Contracts for Excellence system.

7. COMMENT:

              School districts should provide their public comment assessment and a transcript of their public hearings to the commissioner when they submit their contracts for approval

DEPARTMENT RESPONSE:

Disagree on the need for making this a requirement in all instances.  This information would be available from the district upon request. 

8. COMMENT:

              Contracts submitted to the commissioner for approval should be made publicly available.

DEPARTMENT RESPONSE:

Section 100.13(d)(2)(iv)(a) has been added to require each school district to post its contract on the district's website, within 48 hours of submission to the Commissioner.

9. COMMENT:

              Any amendment resulting in a reallocation of resources of greater than 5% should be subject to public comment requiring a 15 day notice and a 15 day comment period.

DEPARTMENT RESPONSE:

              Agree in part.  Section 100.13(b)(4)(iii) has been added to require the amended contract to be posted on a district website within 48 hours of submission.  In addition, the amended contract would be subject to the complaint process.

10. COMMENT:

              Require districts and schools to consult with Local professional educators, community-based organizations, education experts, ESL, bilingual and special education coordinators during the development of their contract.

DEPARTMENT RESPONSE:

Consistent with §211-d(4) the regulations provides for required consultation with parents/persons in parental relation; teachers; administrators and distinguished educators.  However, the revised rule provides for the participation of any interested parties in the public hearings.

11. COMMENT:

              All public hearings and meetings be accessible to those who have limited English proficiency through interpretation services and translated documents.

DEPARTMENT RESPONSE:

              Section 100.13(d)(2) requires that notices of public comment periods and public hearings be translated into languages most commonly spoken in the district.

12.  COMMENT:

              Require district to record the persons or organizations making comments and include this in the public comment assessment.

DEPARTMENT RESPONSE:

              SED deems it sufficient that the regulation requires school districts to prepare and make available upon request, a record of public comment received, including each written comment received and the transcript of oral comments presented at the public hearings.

13.  COMMENT:

              Revise regulation to provide that in NYC, a public hearing shall be held within each county of the city, a transcript of testimony be included when contract is submitted to Commissioner, and that each community district contract shall be submitted by the community superintendent to the community school district education council for review at a public meeting.

DEPARTMENT RESPONSE:

              These provisions are already in the regulations [see 100.13(d)(2), (d)(2)(ii)(a)(2), and (d)(2)(iv)(b).

14.  COMMENT:

              The regulation only allows for a public process once the contracts have been developed by the district, and there are no requirements allowing for the public to participate in the contract development.

DEPARTMENT RESPONSE:

              Disagree.  The regulation requires the district to prepare a proposed contract and submit it for comments by the groups designated in the statute, to hold at least one public hearing, and to prepare an assessment of the substantive comments received.  The regulation thus allows for changes to be made to the proposed contract in response to the comments and hearing, prior to the submission of the contract to the Commissioner for approval.   There is an extremely short timeframe for identified school districts to prepare contracts and incorporate the contract programs in their budgets for the school year applicable to such contracts. The regulation attempts to balance the need for meaningful public participation in accordance with statutory requirements, with this short timeframe.

15.  COMMENT:

              Supports the application of the public comment process for NYC to all districts statewide.

DEPARTMENT RESPONSE:

              The public comment process in the rule is consistent with Education Law §211-d, which requires different process for NYC than for school districts in the rest of the State.

II. Complaint procedures

16. COMMENT:

 Individual students and staff and organizations representing parents, students, and staff should also be allowed to bring complaints concerning the district’s implementation or lack thereof.

DEPARTMENT RESPONSE:

              This change would require a change to the law.  Education Law section 211-d(7) limits the complaint process to "parents or persons in parental relation."

17. COMMENT:

              A simple complaint form should be available to parents

DEPARTMENT RESPONSE:

The regulation as written requires that each school district develop and post on its website a complaint form to be written in plain language and organized in a manner which best promotes public comprehension of the contents.  In addition, the regulation provides for a very flexible interpretation of the complaint form, specifically providing that use of the district's complaint form is recommended but not deemed mandatory for purposes of bringing a complaint, and that a school district shall accept a comp;aint that substantially complies with the district's complaint procedures and proposed section 100.13(e).

18. COMMENT:

              There should be an expedited appeal procedure that goes directly to the Commissioner.

DEPARTMENT RESPONSE:

This would require a statutory change.  Education Law section 211-d(7) provides for the filing of complaints and appeals first with specified district personnel, before an appeal may be brought to the Commissioner.

19. COMMENT:

              The complaint process in the regulations is too complicated and burdensome for parents.

DEPARTMENT RESPONSE:

Disagree.  The regulation requires that each school district develop and post on its website a complaint form to be written in plain language and organized in a manner which best promotes public comprehension of the contents, and provide reasonable notice of the procedures for bringing a complaint.  In addition, the regulation provides for a very flexible interpretation of the complaint form, specifically providing that use of the district's complaint form is recommended but not deemed mandatory for purposes of bringing a complaint, and that a school district shall accept a complaint that substantially complies with the district's complaint procedures and Commissioner's regulation section 100.13(e).

20. COMMENT:

              Require consultation with parent and community organizations when developing the standardized complaint form and provide comment period.

DEPARTMENT RESPONSE:

Disagree, as unnecessary.  The regulation provides for a very flexible interpretation of the complaint form, specifically providing that use of the district's complaint form is recommended but not deemed mandatory for purposes of bringing a complaint, and that a school district shall accept a complaint that substantially complies with the district's complaint procedures and Commissioner's regulation section 100.13(e).

21. COMMENT:

              Require school districts to make complaint forms available in other forms than just on the school district website

DEPARTMENT RESPONSE:

Section 100.13(e)(2)(ii)(c) has been revised to require school districts to make copies of the complaint notice and complaint form available in schools and school district offices.

22. COMMENT:

              Complaints about a school district’s failure to comply with its contract for excellence should be allowed to be brought at any time during the school year of the contract that is the subject of the complaint. 

DEPARTMENT RESPONSE:

              In order to ensure that contracts are efficiently administered pursuant to statutory requirements, there must be reasonable closure to the complaint process.  The regulation provides that a complaint shall be commenced within the time period established by the school district, which time period shall provide for commencement within a reasonable, specified number of days, as determined by the school district, from the making of the decision or the performance of the act complained of, and shall include a provision authorizing the district to excuse a failure to commence an appeal within the time specified, for good cause shown.  SED believes these provisions to be a sufficient balance of the right of parents to bring complaints with the need for closure of the complaint process.

23. COMMENT:

              When a school district fails to investigate and respond to a complaint within the required 30-day period, the school district should be required to provide a written response to the allegations in the complaint on appeal.

DEPARTMENT RESPONSE:

              Disagree, as unnecessary.  The regulation requires the district to make reasonable efforts to investigate a complaint and notify the complainant in writing of the complaint determination, and further provides that if the complainant does not receive the written notification of determination within 35 days from the date the district received the complaint, the complainant may deem the failure to provide such notification as an unsatisfactory determination and may commence an appeal to the appropriate individual specified in the regulation.

24. COMMENT:

              No reprisal of any kind may be taken by a school district or any employee of a school district against any person bringing a complaint under this procedure. 

DEPARTMENT RESPONSE:

              While SED agrees that no reprisals may be taken, remedies exist elsewhere in the law and it is not necessary to include this provision in the regulations.

25. COMMENT:

              Require school district to publicly report the nature and resolution of all complaints.

DEPARTMENT RESPONSE:

              The regulation requires that the district notify each complainant of its determination and the basis therefore.  It would be unduly burdensome to additionally require school districts to publicly report the nature and resolution of all complaints.

26. COMMENT:

              Make clear that the use or availability of the procedure provided in this section shall not be construed as limiting exercise of any of the rights or remedies available to any person under state or federal law.

DEPARTMENT RESPONSE:

This provision would need to be enacted pursuant to a statute in order to be enforceable, and cannot be accomplished by regulation.

27.  COMMENT:

              The regulation should either detail the criteria for when notice of the public comment period qualifies as "reasonable", or specifically state a time period for notice.

DEPARTMENT RESPONSE:

              The regulation specifies "reasonable notice" in recognition of the varying circumstances which school districts State-wide may be subject to at the time they are required to prepare their contracts, and to provide school districts with flexibility in meeting this requirement.  If necessary, this concern can be addressed in guidance issued by the SED.

28.  COMMENT:

              Require that the notice of public comment period include information about the planning and approval process for contracts for excellence.

DEPARTMENT RESPONSE:

              This is unnecessary.  The regulation already requires notice be provided of the public comment period and public hearing, including a general description of the contract, a detailed description of proposed allocations on a school level, by program area, by student achievement performance targets, by affected student population groupings, information on where to obtain a copy of the contract, a description of the process for submitting written comments, including the address to send comments to and the date by which comments must be received by the districts.

III. Class Size Reduction

29.  COMMENT:

              Parents should be allowed to comment on NYC's class size reduction plan for next year.

DEPARTMENT RESPONSE:

              Parents have an opportunity to comment on class reduction as part of the public process provisions in section 100.13(d).

30. COMMENT:

              Class size reduction has occurred in NYC because of enrollment declines.  The city should be held to class size standards implemented at the beginning of the school year not because students dropped out over the course of the year.

DEPARTMENT RESPONSE:

The proposed rule requires NYC to comply with class size standards at the beginning of the school year.

31. COMMENT:

              NYC should report on staffing of classroom teachers in core instructional courses.

DEPARTMENT RESPONSE:

This recommendation can be considered in the deliberations of the Commissioner’s class size panel. 

32. COMMENT:

              NYC should be required to maintain its effort in the face of budget cuts to avoid increased class sizes.

DEPARTMENT RESPONSE:

              Pursuant to Education Law section 211-d, as amended by Chapter 57 of the Laws of 2008, all contract districts are required under the 2008-2009 application system to maintain the base year contract amount of expenditures, allowing for reallocation to other approvable program areas.

33. COMMENT:

              The public needs better information on what contract funds accomplish including the number of additional teachers hired and the number of additional classes formed to lower class size, and to what levels class sizes have been reduced as a result.

DEPARTMENT RESPONSE:

Agreed.  SED will study this with the Commissioner’s class size panel.

34. COMMENT:

              NYC's capital plan should be aligned with its class size reduction plan.

DEPARTMENT RESPONSE:

              Disagree.  The regulation provides that the class size reduction plan be aligned with the capital plan.  The class size reduction plan is smaller and of shorter duration than the capital plan, so it is appropriate that it be subordinate. 

35. COMMENT:

              The city’s current capital plan provides no room for smaller classes in any grade higher than third.  The city must be required to provide the space to make its class size goals a reality.

DEPARTMENT RESPONSE:

This is beyond the scope of the regulation.  It is not appropriate for the regulation to dictate funds for school construction beyond contract for excellence funds.

36. COMMENT:

              Data on the number of classes, average class size and the number of classroom     teachers should be provided for the baseline year and each year thereafter.

DEPARTMENT RESPONSE:

Consistent with Education Law §211-d(2)(b)(ii), section 100.13(c)(2)(i)(a)(1)(ii) has been revised to provide for such data for the 2007-2008 school year and continuing for each school year thereafter up to and including the 2011-2012 school year.

IV. English Language Learners (ELL)

37. COMMENT:

              There should be a separate “predominately benefit” benchmark for ELL’s and  any definition of “predominately” should not shortchange small schools with large percentages of ELL’s, i.e. (international schools.).

DEPARTMENT RESPONSE:

Disagree.  Having a separate benchmark for ELL’s may result in fragmentation of funding and programs and goes against school wide approaches and comprehensive planning

38.  COMMENT:

Require district and school level expenditure projections and reports to outline the amount of funds serving ELL’s, as well as data on ELL students served, ELL teachers/staff hired, ELL programs established or expanded, ELL class size reductions and ELL focused professional development hours. 

DEPARTMENT RESPONSE:

These comments will be taken into account as we develop options for the allowable program for ELLs and conduct compliance monitoring.

39. COMMENT:

              C4E must expand the list of allowable activities under the existing five contract program areas,  to include ELL-focused strategies from list of:  more ESL teachers; more bilingual teachers; ESL and bilingual teacher recruitment/retention; professional development for all teachers of ELL; ELL extended school day, Saturday academy and Summer School; books and learning resources in various languages; students with interrupted formal education (SIFE) intervention and instruction; develop appropriate tests and monitor instruction and assessment implementations; guidance, mentoring and social support services for immigrant/ELL youth; high school readiness and dropout prevention; immigration/LEP parent engagement and leadership training.

DEPARTMENT RESPONSE:

              In response to Education Law section 211-d, as amended by Chapter 53 of the Laws of 2008, the regulation has been revised to add a sixth category of allowable programs and services to provide for model programs for students with limited English proficiency, Including programs serving limited English proficient students, native language support, new immigrant programs, recruitment and retention of bilingual general education and special education teachers, English as a Second Language teachers, bilingual teachers of students with speech and language disabilities, and bilingual pupil personnel staff, and parent involvement.

40.  COMMENT:

              Add ELL students who have not achieved sufficient scores on the LEP proficiency test to the definition of "students with low academic achievement."

DEPARTMENT RESPONSE:

              A change to the regulation is not necessary. This is already included in the achievement weighting for targeting students with low academic achievement.

V. Contract Approval and Amendment

41. COMMENT:

              The requirement to spend contract funds in the five allowable programs limits districts' ability to continue systemic reform efforts.

DEPARTMENT RESPONSE:

              In response to a recent statutory change to Education Law section 211-d, as amended by Chapter 53 of the Laws of 2008, the regulation has been revised to provide for a sixth allowable program in the area of students with limited English proficiency.  Any additional programs would require further statutory change. 

42. COMMENT:

              Recommend amendment process be more flexible and clarify amendments that fall within scope of allowable provisions.  Amendment should be allowed when enrollment or class size changes, or when new information becomes available.

DEPARTMENT RESPONSE:

              SED believes that the existing provision is sufficient. Amendments would be permitted upon a showing of good cause by the district, including, but not limited to, a showing that the contract is based upon an error or errors of material fact or that there has been a change in circumstances, including, but not limited to, a change in the district's fiscal, staffing or other resources, that materially affects the district's ability to carry out the terms of the contract.

43.  COMMENT:

              There should be a 30-day public comment period commencing once contracts are submitted to the Commissioner for approval.

DEPARTMENT RESPONSE:

              Disagree, as unnecessary.  There is already a 30-day comment period at the local level and a requirement that the school district respond to each substantive comment.  An additional comment period would be unnecessarily duplicative and would risk impairing the timely review and approval of contracts.

44.  COMMENT:

              SED should have to approve any district's reallocation of last year's contract funds to an allowable program.

DEPARTMENT RESPONSE:

              Agreed.  This is being incorporated into the 2008-2009 application system.

45. COMMENT:

              Specify a date by which SED will provide annual notification of contract approval.

DEPARTMENT RESPONSE:

SED is working to routinize the process but since the process is still being developed we do not have a specific date yet.

VI. Allocation, Targeting and Maintenance of Effort

46.  COMMENT:

Recommend change from requirement that 75% of funds serve students in 50% schools defined as having greatest need.  Recommended  additional language, in support of district-wide initiatives, would include, “…for districts serving in excess of 125,000 at least 75% of the year to year increase shall be distributed to the top 50% of schools ranked from greatest to least relative incidence, as measured against poverty, disability, ELL, and low school performance. This rule shall apply after all schools within district that are in improvement status have been allocated at least their pro rata share of C4E funds based on their share of total district need.

DEPARTMENT RESPONSE:

The regulation refers to 75% of the contract amount.  The contract amount is determined by statue.  The proposed rule will be revised to refer to the annual contract amount.

47. COMMENT:

              Performance or achievement goals are not enough.   There needs to be measures of inputs as well.

DEPARTMENT RESPONSE:

Agreed.  This has been incorporated in the web-based reporting system consistent with statutory requirements.

48. COMMENT:

              The section of the regulation that requires that 75% of funds subject to C4E requirements be spent on the neediest half of schools in the Big 5 districts is overly restrictive.  The Big 4 should be allowed to use funds for district-wide initiatives targeted to predominantly benefit students with the greatest educational needs.

DEPARTMENT RESPONSE:

              The regulation allows for districts to spend funds on district wide initiatives provided they meet the 75% standard.  Districts can also spend on low-performing schools in relation to their need.  Districts may seek other district-wide initiatives by applying for a waiver.

49. COMMENT:

              Education Law § 211-d(3)(a) allows districts in 2007-08 to use  up to 25%, or $30 million, whichever is less, to maintain investments in  existing programs.  The $30 million cap only affects NYC, therefore, recommend cap be changed to 25% for all districts, including NYC.

DEPARTMENT RESPONSE:

This requires statutory change.

50.  COMMENT:

              Revise applicability provisions to also include schools that are below the school district (or State) average on the ELA and Math assessment or the 4-year graduation rate.

DEPARTMENT RESPONSE:

              The regulation has been revised in response to Education Law §211-d, as amended by Chapter 57 of the Laws of 2008, to delete specific applicability provisions in the regulation, and instead reference the statute for purposes of determining applicability. 

51.  COMMENT:

              Revise regulation to provide that schools within the district that are in improvement status shall receive at least their pro rata share of contract funds based on their share of actual high need low performing students, instead of based on share of total district need.

DEPARTMENT RESPONSE:

              Disagree.  The targeting algorithm developed by SED takes into account student poverty, achievement and relative proportion of students from the legislatively targeted population groups.

52.  COMMENT:

              Allow schools to target funds to predominately benefit students having the greatest educational needs who are enrolled in schools identified under section 100.2(p) and not only to students enrolled in SURR schools.

DEPARTMENT RESPONSE:

              Agree.  The reference to SURR schools was just an example of different, acceptable strategies subject to the Commissioner's approval, and does not preclude others. 

VII. Comprehensive education plan

53. COMMENT:

              Include the terms of the contract for excellence in each school's comprehensive education plan.

DEPARTMENT RESPONSE:

              The regulations state that the contracts for excellence must be coordinated with the comprehensive education plan.

VIII.  General.

54.  COMMENT:

              The lack of specificity in the regulations resulted in a non-uniform response from school districts and in many cases lacked transparency. 

DEPARTMENT RESPONSE:

              We disagree.  A common format and streamlined on-line application process was developed to facilitate the process.  All of their suggested report elements are already part of the system.  A standard set of reports were developed to provide uniform contract documents and strategies, along with performance standards.  Additional improvements are in process for the 2008-2009 school year.

 

 

 

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to Education Law sections 101, 207, 215, 305, 309 and 211-d, as added by Chapter 57 of the Laws of 2007, and amended by Chapter 57 of the Laws of 2008.

              1.  Section 100.13 of the Regulations of the Commissioner of Education is added, effective May 20, 2008, as follows:

100.13  Contract
for Excellence.

              (a)  Definitions.  As used in this section:

              (1)  "Total foundation aid" means such aid as defined in Education Law section 3602(4).

              (2)  "Supplemental educational improvement plan grant" means such grants as defined in Education Law section 3641(8).

              (3)  "Annual contract amount" means the sum of the amounts apportioned to the school district in the current year as total foundation aid and as supplemental educational improvement plan grants for the 2007-2008 school year and thereafter, in excess of the percentage of the school district's foundation aid base, as prescribed and adjusted in Education Law section 211-d(2)(a).

              (4)  "Base year" shall be as defined in Education Law section 3602(1)(b).

              (5)  "Experimental programs" are programs, not included in the allowable programs and activities under subparagraphs (i) through (v) of paragraph (2) of subdivision (c) of this section, that are designed to demonstrate the efficacy of other strategies to improve student achievement, and for which the commissioner may authorize a school district to spend up to 15 percent of the annual contract amount.

              (6)  "Highly qualified teacher" means a teacher who meets the requirements set forth in section 120.6 of this Title.

              (7)  "Response to intervention program" means a program as defined in section 100.2(ii) of this Title.

              (8)  "Students with low academic achievement" means studentswho:

              (i) are not performing at least at a Level 3 score on the following accountability measures:

              (a)  elementary/middle level English language arts; and

              (b)  elementary/middle level math;

and/or

              (ii)  did not graduate within four years of first entry into the ninth grade, as determined for the latest available school year.

              (b)  Contract requirements.  Each school district that is required to prepare a contract for excellence pursuant to Education Law section 211-d shall prepare its contract pursuant to the provisions of subdivision (d) of this section and in accordance with the following: 

              (1)  each contract for excellence shall be in a format, and submitted pursuant to a timeline, as prescribed by the commissioner and shall:

              (i) describe how the annual contract amount shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement, from the allowable programs and activities and/or authorized experimental programs pursuant to subdivision (c) of this section; 

              (ii) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to subdivision (c) of this section, for which each sub-allocation of the annual contract amount shall be used and affirm that such programs shall predominately benefit students with the greatest educational needs including, but not limited to:

              (a)  limited English proficient students and students who are English language learners;

              (b)  students in poverty; 

              (c) students with disabilities; and

              (d)  students with low academic achievement.

              (iii)  specify how the school district's annual contract amount will be distributed in accordance with the provisions of paragraph (3) of this subdivision. 

              (iv)  state, for all funding sources, whether federal, state or local, the instructional expenditures per pupil, the special education expenditures per pupil, and the total expenditures per pupil, projected for the current year and estimated for the base year; provided that no later than February 1 of the current school year, the school district shall submit a revised contract stating such expenditures actually incurred in the base year;     

              (v)  include any programmatic data projected for the current year and estimated for the base year, as the commissioner may require; and

              (vi)  in the city school district of the city of New York, include a plan that meets the requirements of clause (a) of subparagraph (i) of paragraph (2) of subdivision (d) of this section, to reduce average class sizes within five years for the following grade ranges:

              (a) prekindergarten through grade three;

              (b) grades four through eight; and 

              (c) grades nine through twelve.

Such plan shall be aligned with the capital plan of the city school district of the city of New York and include continuous class size reduction for low performing and overcrowded schools beginning in the 2007-2008 school year and thereafter and also include the methods to be used to achieve proposed class sizes, such as the creation or construction of more classrooms and school buildings, the placement of more than one teacher in a classroom or methods to otherwise reduce the student to teacher ratio.  Beginning in the 2008-2009 school year and thereafter, such plan shall provide for reductions in class size that, by the end of the 2011-2012 school year, will not exceed the prekindergarten through grade 12 class size targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research.  Notwithstanding, any rule or regulation of this Title to the contrary, the sole and exclusive remedy for a violation of the requirements of Education Law section 211-d(2)(b)(ii) shall be pursuant to a petition to the commissioner under Education Law section 310(7), and the decision of the commissioner on such petition shall be final and unreviewable. 

              (2)  Approval and certification.  The commissioner shall approve each contract meeting the provisions of this section and shall certify, for each contract, that the expenditure of additional aid or grant amounts is in accordance with Education Law section 211-d(2).  Approval shall be given to contracts demonstrating to the satisfaction of the commissioner that the allowable programs and activities selected by the district pursuant to the requirements of subdivision (c) of this section:

              (i)  predominately benefit  those students with the greatest educational needs, including but not limited to:

              (a)  students with limited English proficiency and students who are English language learners;

              (b)  students in poverty;

              (c)  students with disabilities; and

              (d)  students with low academic achievement;

              (ii)  predominately benefit those students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools; and

              (iii)  are based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards.

              (3)  Use of  Annual Contract Amount. 

              (i)  Definitions.  For purposes of this paragraph:

              (a)  "Low school performance" means, for a given school within the school district, the percentage, as measured with respect to the school's total student enrollment, of students with low academic achievement enrolled in such school. 

              (b)  "Total district need" means a school district's total sum of enrollment-weighted shares of:

              (1)  students with limited English proficiency or English language learners

              (2)  students in poverty;

              (3)  students with disabilities; and

              (4)  students with low academic achievement.

              (ii)  Except as provided in subparagraph (iii) of this paragraph, each school district required to prepare a contract for excellence pursuant to Education Law section 211-d shall distribute the annual contract amount it receives in accordance with the following:

              (a)  For school districts in cities with a population of one hundred twenty-five thousand or more, at least 75 percent of the annual contract amount shall be distributed to benefit students having the greatest educational needs who are enrolled in the top 50 percent of schools within the district ranked in order of greatest to least relative incidence, as measured against total school enrollment, of poverty, disability, limited English proficiency and low school performance; provided that all schools within the district that are in improvement status shall receive at least their pro rata share of contract funds based on their share of total district need.

             
(b)  For all other school districts, at least 75 percent of the annual contract amount shall be distributed to benefit students having the greatest educational needs enrolled in schools requiring academic progress, or in need of improvement, or in corrective action, or in restructuring; provided that all schools in improvement status shall receive at least their pro rata share of contract funds based on their share of total district need.

             
(iii)  The commissioner may approve a school district's distribution of its annual contract amount in a different manner than that specified in subparagraph (ii) of this paragraph upon a showing of good cause including, but not limited to, distribution of the annual contract amount to predominately benefit students having the greatest educational needs who are enrolled in schools under registration review.

              (4)  Amendment of contract. 

              (i)  A contract for excellence that is approved by the commissioner pursuant to paragraph (2) of this subdivision may not be subsequently amended unless the amended contract is approved by the commissioner upon a showing of good cause by the district, including, but not limited to, a showing that the contract is based upon an error or errors of material fact or that there has been a change in circumstances, including, but not limited to, a change in the district's fiscal, staffing or other resources, that materially affects the district's ability to carry out the terms of the contract.

              (ii)  Applications for approval to amend a contract shall be in a format, and submitted pursuant to a timeline, as prescribed by the commissioner.

              (iii)  Each school district submitting an amended contract pursuant to this paragraph shall, within 48 hours of such submission, post a copy of such amended contract on its website. 

              (c)  Allowable programs and activities. 

              (1)  General requirements. 

              (i)  Allowable programs and activities shall:

              (a)  predominately benefit students with the greatest educational needs including, but not limited to:

              (1)  students with limited English proficiency and students who are English language learners;

              (2)  students in poverty; 

              (3)  students with disabilities; and

              (4) students with low academic achievement.

              (b) predominately benefit those students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools;

              (c)  be based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards;

              (d) be consistent with federal and State statutes and regulations governing the education of such students;

              (e) where applicable, be accompanied by high quality, sustained professional development focused on content pedagogy, curriculum development, and/or instructional design in order to ensure successful implementation of each program and activity;

              (f)  ensure that expenditures of the annual contract amount shall be used to supplement and not supplant funds expended by the district in the base year for such purposes; 

              (g)  ensure that all additional instruction is provided by appropriately certified teachers or highly qualified teachers where required by section 120.6 of this Title, emphasizing skills and knowledge needed to facilitate student attainment of State learning standards; and

              (h)  be coordinated with all other allowable programs and activities included in the district's contract for excellence as part of the district's comprehensive educational plan.

              (ii)  Nothing in this section shall be deemed to preclude a school district from selecting an allowable program and activity involving the use of instructional technology, provided that such program meets the applicable requirements of this subdivision and is approved by the commissioner pursuant to paragraph (2) of subdivision (c) of this section.  

              (2)  Specific program requirements.  Allowable programs and activities shall be limited to:

              (i)  Class size reduction, pursuant to the following:

              (a)  Allowable programs and activities related to class size reduction in the city school district of the city of New York shall include:

              (1)  creation or construction of more classrooms and/or school buildings to facilitate student attainment of State learning standards pursuant to the following requirements:

              (i)  priority shall be given to prekindergarten through grade 12 students in overcrowded schools particularly those requiring academic progress, schools in need of improvement, schools in corrective action, and schools in restructuring status;

              (ii) for the 2007-2008 school year and continuing for each school year thereafter up to and including the 2011-2012 school year, the city school district of the city of New York shall provide baseline data for the respective immediately preceding school year stating for each grade level targeted:

              (A)  the number of classes;

              (B)  the average class size; and

              (C) the number of classroom teachers;

              (iii)  for the 2007-2008 school year, the city school district of the city of New York shall establish class size reduction goals for each grade level targeted and upon conclusion of such school year, shall report, in a format and pursuant to a timeline prescribed by the commissioner, measurable progress toward meeting such goals;

              (iv)  beginning in the 2008-2009 school year and continuing through the 2011-2012 school year, the city school district of the city of New York shall: (A) establish annual class size reduction goals for each grade level targeted that will reduce class size toward the prekindergarten through grade 12  targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; (B) make measurable progress in each such school years toward achieving such targets; and (C) not exceed such targets by the end of the 2011-2012 school year; and

              (v)  the classrooms created shall provide adequate and appropriate physical space to students and staff; or

              (2)  assignment of more than one teacher to a classroom to facilitate student attainment of State learning standards pursuant to the following requirements:

              (i)  priority shall be given to prekindergarten through grade 12 students in overcrowded schools particularly those requiring academic progress, schools in need of improvement, schools in corrective action, and schools in restructuring status;

              (ii)  for the 2007-2008 school year, the city school district of the city of New York shall report, in a format and pursuant to a timeline prescribed by the commissioner,  the extent to which the assignment of additional teacher(s) to a classroom reduced the classroom teacher-student ratio for each grade level targeted and, where class size reduction goals are established under section 100.13(d)(2)(i)(a)(1)(iii) of this Part, shall also report measurable progress toward meeting such goals; and

              (iii) beginning in the 2008-2009 school year and thereafter, in each classroom to which an additional teacher is assigned, the classroom teacher-student ratio shall not exceed the prekindergarten through grade 12 targets prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; or

              (3) other methods, as approved by the commissioner, to otherwise reduce the student to teacher ratio.

              (b)  Allowable programs and activities related to class size reduction in all other school districts shall include:

              (1)  creation or construction of additional classrooms and/or buildings to facilitate student attainment of State learning standards pursuant to the following requirements:

              (i)  for the 2007-2008 school year, the school district shall provide baseline data for the 2006-2007 school year stating for each grade level targeted:

              (A)  the number of classes;

              (B)  the average class size; and

              (C) the number of classroom teachers;

              (ii)  for the 2007-2008 school year, the school district shall establish class size reduction goals for each grade level targeted and, upon conclusion of such school year, shall report, in a format and pursuant to a timeline prescribed by the commissioner, measurable progress toward meeting such goals;

              (iii)  beginning in the 2008-2009 school year and thereafter, the school district shall:  (A) establish class size reduction goals for each grade targeted that will reduce class size toward the kindergarten through grade 12 class size targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; and (B) make measurable progress in each school year toward achieving such targets; and

              (iv)  the classrooms created shall provide adequate and appropriate physical space to students and staff; or

              (2)  assignment of additional teacher(s) to a classroom to facilitate student attainment of State learning standards pursuant to the following requirements:

              (i) for the 2007-2008 school year, the school district shall provide baseline data for the 2006-2007 school year stating for each grade level targeted:

              (A)  the number of classes;

              (B)  the average class size; and

              (C) the number of classroom teachers;

              (ii)  for the 2007-2008 school year, the school district shall report, in a format and pursuant to a timeline prescribed by the commissioner,  the extent to which the assignment of additional teacher(s) to a classroom reduced the classroom teacher-student ratio for each grade level targeted and, where class size reduction goals are established under section 100.13(d)(2)(i)(b)(1)(iii) of this Part, shall also report measurable progress toward meeting such goals; and

              (iii) beginning in the 2008-2009 school year and thereafter, in each classroom to which an additional teacher is assigned, the classroom teacher-student ratio shall not exceed the kindergarten through grade 12 targets prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; and

              (iv)  placement of additional teacher(s) shall occur only in instances when there is no physical space available for creating additional classrooms.

              (ii)  Student time on task. 

              (a)  For kindergarten through grade 12, increased student time on task shall be designed to provide students with additional instruction time in content areas needed to facilitate student attainment of State learning standards that deepens their content knowledge and conceptual understandings through rigorous academic engagement.  Increased student time on task may be accomplished by one or more of the following:

              (1)  Lengthened school day, pursuant to the following:

              (i) when additional instruction is provided at the middle and high school level, such instruction shall emphasize content areas and instruction in subjects required for graduation; and

              (ii)  student support services shall be provided, which may include, but are not limited to, guidance, counseling, attendance, parent outreach, behavioral support, or instruction in study skills which are needed to support improved academic performance.

              (2)  Lengthened school year, pursuant to the following:

              (i)  the additional time shall be used to provide additional instruction; and

              (ii)  student support services shall be provided,  which may include, but are not limited to, guidance, counseling, attendance, parent outreach, behavioral support, or instruction in study skills which are needed to support improved academic performance.

              (3) Dedicated instructional time, pursuant to the following:  

              (i)  dedicated block(s) of time must be created for instruction in content areas that facilitate student attainment of State learning standards;

              (ii)  a research-based core instructional program must be used during such daily dedicated block(s) of instructional time;

              (iii)  a response-to-intervention program; and/or

              (iv)  individualized intensive intervention.

              (4)  Individualized tutoring, pursuant to the following:

              (i)  shall be primarily targeted at students who are at risk of not meeting State learning standards;

              (ii) shall supplement the instruction provided in the general curriculum;

              (iii) may be provided by a certified teacher, a paraprofessional, a person with a major or minor in the subject matter to be tutored, or anyone otherwise deemed qualified by the superintendent based upon the person's knowledge and experience in education and/or the subject matter to be tutored;

              (iv) shall emphasize content areas to facilitate student attainment of State learning standards, and when individualized tutoring is provided at the middle and high school levels, such tutoring shall emphasize content areas and instruction in subjects required for graduation; and

              (v)  excludes costs for supplemental educational services.

              (b)  Nothing in this section shall be deemed to preclude a school district from selecting one or more of the following programs, as an allowable program or activity to increase student time on task, provided that each such program meets the requirements of this subparagraph and the general requirements of paragraph (1) of this subdivision, and is approved by the commissioner pursuant to paragraph (2) of subdivision (c) of this section:  

              (1) a new or expanded program in the visual arts, music, dance and/or theatre;

              (2)  a new or expanded program in career and technical education;

              (3)  after-school programs offering supplemental instruction, tutoring and/or other academic support and enrichment; and/or

             
(4)  summer camp programs offering supplemental instruction, tutoring and/or other academic support and enrichment.

              (iii)  Teacher and principal quality initiatives.  Teacher and principal quality initiatives shall ensure that teachers and principals are appropriately certified and that all teachers of core academic subjects are highly qualified as required in section 120.6 of this Title and that an appropriately certified teacher, or a highly qualified teacher where required by section 120.6 of this Title, is assigned to every classroom and an appropriately certified principal is assigned to every school in accordance with section 100.2(a).  Such initiatives may include one or more of the following:

              (a)  programs and activities to recruit and retain appropriately certified and highly qualified teachers and appropriately certified principals through the development and implementation of recruitment strategies and retention incentives;

              (b)  professional mentoring programs for teachers and principals pursuant to the following:

              (1)  professional mentoring programs included in district professional development plans pursuant to section 100.2(dd)(2)(iv) of this Title that provide mentoring for new teachers and principals in satisfaction of the mentored experience required for professional certification under sections 80-3.4(b)(2) and 80-3.10(a)(2)(ii) of this Title, or for other district identified needs; and/or

              (2) mentoringto improve the performance of other teachers and principals, consistent with collective bargaining and other applicable requirements;

              (c)  incentive programs, developed in collaboration with teachers in the collective bargaining process, to encourage highly qualified and experienced teachers to work in low performing schools, provided that such programs shall not use funds for school-wide or district-wide salary enhancements or raises;

              (d)  instructional coaches for teachers, pursuant to the following:

              (1)  instructional coaches shall be appropriately certified or highly qualified teachers where required by section 120.6 of this Title; and

              (2)  instructional coaches shall provide teachers with support in content areas and may provide professional development to teachers in pedagogy and/or classroom management, to improve student attainment of State learning standards; and/or

              (e)  school leadership coaches for principals, pursuant to the following requirements:

              (1) school leadership coaches shall provide individualized professional development to assist principals to become more effective instructional leaders and facilitate learning across all the curriculum areas; and

              (2)  ensure that school leadership coaches are appropriately certified as a school district administrator, school administrator and supervisor and/or school business administrator pursuant to Subpart 80-2 of this Title or as a school district leader, school building leader and/or school district business leader pursuant to Subpart 80-3 of this Title and have demonstrated success as such.

              (iv) Middle schooland high school restructuring, pursuant to the following:   

              (a)  allowable middle school and high school restructuring programs and activities are those that either:

              (1)  implement instructional program changes to improve student attainment of State learning standards including, but not limited to, providing challenging academic content and learning opportunities, and/or implement intensive research and evidence based, cognitively appropriate academic intervention programs for students who are at risk of not meeting State learning standards. 

              (2)  make structural changes to middle and/or high school organization including, but not limited to, changes to grade offerings in a building, creating grade nine academies, schools within schools, and/or different teams of teachers to deal with different needs of students.

             
(b)  Districts choosing to make structural changes to middle and/or high school organization shall also implement instructional program changes pursuant to subclause (1) of clause (a) of this subparagraph;

              (c)  Nothing in this section shall be deemed to preclude a school district from selecting one or more of the following programs, as allowable middle school and high school restructuring programs and activities, provided that each such program meets the requirements of this subparagraph and the general requirements of paragraph (1) of this subdivision, and is approved by the commissioner pursuant to paragraph (2) of subdivision (c) of this section:  

              (1) a new or expanded program in the visual arts, music, dance and/or theatre; and/or

              (2)  a new or expanded program in career and technical education;

              (v) expansion or replication of effective model programs for students with limited English proficiency, in accordance with the following:

       (a) Model programs for students with limited English proficiency are  innovative programs, services and support, encompassing a range of effective practices, that are designed to strengthen academic achievement and improve student performance across content areas, as needed to facilitate the attainment of State learning standards by students with limited English proficiency in kindergarten through grade 12.  All limited English proficient students will benefit from such model programs and services, especially those who are living in poverty or have disabilities.  High quality professional development will accompany the implementation of each program option selected, and teachers will employ pedagogies which reflect innovative instructional methodologies        (b)  Allowable model programs for students with limited English proficiency are limited to one or more of the following:

              (1) Programs serving limited English proficient students that:

              (i) address learning needs of  students with interrupted formal education by providing education in their native language while focusing on literacy and numeracy development skills and simultaneously teaching content to students who may be several years behind their age peers; 

              (ii) provide targeted programs, which include explicit vocabulary instruction and academic supports for students who have resided in the United States for seven years or longer and who may have a mastery of the English language for conversational purposes but are below grade level in reading, writing and other content areas; and

              (iii) provide support services, including tutoring, as needed, to ensure continuity with grade level coursework for students who are transitioning from limited English proficient or bilingual programs into mainstream educational settings.

              (2) Native language support that:

                (i) provides high-quality universal prekindergarten programs that incorporate both English and a student’s native language, and necessary professional development to teachers and staff to effectively conduct a multilingual program;

                (ii) provides dual language programs, wherein literacy and content are taught in two languages, to enhance cultural and linguistic diversity and promote bilingualism;          (iii) provides co-teaching or consultant teaching services that support integration of students with disabilities into bilingual education programs; 

                (iv) makes available written materials in native language in school and community settings, including library resources, for students and parents; and

                (iv) provides additional bilingual support in content areas concentrating on student with disabilities in schools without Part 154 bilingual programs.

              (3) New immigrant programs that provide structured transitional activities to address the social, emotional and language issues of newly arrived limited English proficient students.

              (4) Recruitment and retention of bilingual general education and special education teachers, English as a Second Language teachers, bilingual teachers of students with speech and language disabilities, and bilingual pupil personnel staff, pursuant to the following:

              (i) development of a career ladder and identification of state and federal grant funds, in collaboration with higher education institutions, for bilingual teacher aides;

              (ii) accurate and timely district support regarding the teacher credentialing process, as well as information on temporary certificates, such as bilingual internships and interim certificates;

              (iii) focused, yet comprehensive, professional development for teachers, assistants and aides; and

(iv) training and support for appropriately certified mentors and supervisors.

(5) Parent involvement, pursuant to the following:

              (i) materials shared for communication purposes shall be in both English and languages spoken within the community;

              (ii) adult English classes and family literacy will be promoted;

              (iii) unstated rules and behavioral expectations will be made explicit, i.e., parents are expected to attend conferences; and

              (iv) power-sharingrelationships between parents and school officials will be encouraged, e.g., establishment of parent advocacy groups and shared decision making opportunities.

              (c)  Nothing in this section shall be construed to limit the participation of English language learners in other allowable Contract for Excellence programs intended to predominately benefit English language learners, students with disabilities, students from poverty backgrounds and students with low achievement.

              (vi) Full-daykindergarten or prekindergarten programs, pursuant to the following:

              (a)  a full-day prekindergarten program is an instructional program for four year old children, including students with disabilities as appropriate, operated in accordance with sections 175.5 and 100.3 of this Title.

              (1)   Allowable programs and activities for full-day prekindergarten are limited to the following:

              (i)  a minimum full school day program; or

              (ii)  a minimum full school day program  that includes additional hours to meet the needs of children and families; or

              (iii) a minimum full school day program that includes additional hours to meet the needs of children and families in collaboration with eligible community based agencies; and/or

              (iv)  programs designed to increase the integration of students with disabilities into full-day prekindergarten programs.

              (2)  The program shall provide an instructional program according to the State student performance indicators for prekindergarten; 

              (b)  A full-day kindergarten program is an instructional program for five year old children operated in accordance with sections 175.5 and 100.3 of this Title.

              (1)  Allowable programs and activities for full-day kindergarten are limited to the following:

              (i)  a minimum full school day program; or

              (ii) a minimum full school day program that includes additional hours to meet the needs of children and families;

              (2)  The program shall provide an instructional program according to the State student performance indicators for kindergarten.

              (3)  Exceptions. 

              (i) Experimental programs. 

              (a)  Notwithstanding the provisions of this subdivision, a school district may use up to fifteen percent of the annual contract amount it receives for experimental programs designed to demonstrate the efficacy of other strategies to improve student achievement.             

              (b)  Any district seeking to implement an experimental program shall first submit a plan to the commissioner for his or her approval, in a format and pursuant to a timeline prescribed by the commissioner, setting forth the need for such experimental program and how such program will improve student performance.

              (c)  An experimental program must be based on an established theoretical base supported by research or other comparable evidence.

              (d) The implementation plan for an experimental program must be accompanied by a program evaluation plan based on empirical evidence to assess the impact on student achievement.

              (e)  The experimental program may be in partnership with an institution of higher education or other organization with extensive research experience and capacity.

              (f)  Nothing in this section shall be deemed to preclude a school district from selecting an experimental program involving the use of instructional technology, provided that such program is approved by the commissioner pursuant to the requirements of this subparagraph:  

              (ii)  Notwithstanding the provisions of this subdivision, a school district may use, in the 2007-2008 school year, up to $30 million dollars or twenty-five percent of the  annual contract amount, whichever is less, to maintain investments in programs and activities listed in Education Law section 211-d(3)(a).

              (d)  Public process. 

              (1)  For the 2007-2008 school year, school districts shall solicit public comment on their contracts for excellence.

              (2)  Commencing with the 2008-2009 school year and thereafter, a school district's contract for excellence shall be developed pursuant to the provisions of this paragraph through a public process, in consultation with parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c, which shall include at least one public hearing.  In the city school district of the city of New York,the contract shall be developed, to the extent appropriate, consistent with section 100.11 of this Title;  andeach community district contract for excellence shall be consistent with the citywide contract for excellence and shall be submitted by the community superintendent to the community district education council for review and comment at a public meeting. 

             
(i)  Public comment period. 

              (a)  There shall be a 30-day period for receipt of written public comment on each school district's proposed contract for excellence. 

              (b)  Each school district shall provide reasonable notice of such public comment period to parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. 

              (1)  The notice of public comment period shall include, at a minimum:

              (i)  a general description of the contract for excellence;
              (ii)  a detailed description of proposed allocations:

              (a) on a school level;

              (b)  by program area, including details concerning proposed program additions and/or enhancements;

              (c)  by student achievement performance targets; and

             
(d)  by affected student population groupings, including, but not limited to:

              (1)  students with limited English proficiency and students who are English language learners;

              (2)  students in poverty; 

              (3)  students with disabilities; and

              (4)  students with low academic achievement;

              (iii)  information on where to obtain a copy of the proposed contract for excellence; and

              (iv)  a description of the process for submitting written comments, including, but not limited to, the school district address to which comments may be sent and the date by which comments must be received by the school district. 

              (2)  Methods of providing notice may include, but are not limited to, posting the notice on a school district website, posting the notice in schools and school district offices in conspicuous locations, publishing the notice in local newspapers or other local publications, and/or school district mailings and distributions.  A school district shall also provide translations of the notice into the languages other than English that are most commonly spoken in the school district.

              (ii)  Public hearings.

              (a)  Number of hearings.

              (1)  Each school district, other than the city school district of the city of New York, shall hold at least one public hearing.

             
(2) In the city school district of the city of New York, a public hearing shall be held within each county of such city. 

             
(b)  Notice of Public Hearing.  Each school district shall provide reasonable notice to the public of each public hearing, in accordance with the following:

              (1)  The notice of public hearing shall include, at a minimum:

              (i)  a general description of the contract for excellence;
              (ii)   a detailed description of proposed allocations:

              (a)  on a school level;

              (b)   by program area, including details concerning proposed program additions and/or enhancements;

              (c)   by student achievement performance targets; and

              (d)   by affected student population groupings, including, but not limited to:

              (1)   students with limited English proficiency and students who are English language learners;

             
(2)  students in poverty; 

              (3)    students with disabilities; and

              (4)    students with low academic achievement;

              (iii)    information on where to obtain a copy of the proposed contract for excellence; and

              (iv)  a description of the public hearing process, including the procedures for participation and submission of comments.

              (2)  Methods of providing notice of public hearing(s) may include, but are not limited to, posting the notice on a school district website, posting the notice in schools and school district offices in conspicuous locations, publishing the notice in local newspapers or other local publications, and/or including the notice in school district mailings and distributions.  A school district shall also provide translations of the notice into the languages other than English that are most commonly spoken in the school district.

              (3)  In addition to providing notice of public hearing(s) pursuant to subclauses (1) and (2) of this clause, each school district shall ensure that:

              (i)  public notice of the time and place of a public hearing scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such hearing; and;

              (ii)  public notice of the time and place of every other public hearing shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto. 

             
(c)  Conduct of public hearing.  Public hearings shall provide an opportunity for oral and written comments to be submitted by any interested party including, but not limited to, parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. 

              (iii)  Public comment record and assessment.

              (a)  Each school district shall prepare, and make available upon request, a record of public comment received, including each written comment received and the transcript of oral comments presented at any public hearing held pursuant to this subdivision.  

              (b)  Not later than 12 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each school district shall prepare a public comment assessment, based upon any written comments submitted to the school district and any oral comments presented at any public hearing held pursuant to this subdivision.               

              (1)  The public comment assessment shall contain:

              (i)  a summary of the substance of the comments received, grouped by subject matter; and

              (ii)  the school district's response to each substantive comment, including a statement of any changes made to the contract for excellence as a result of such comment, or an explanation of why the comment's suggestions were not incorporated into the contract for excellence.

             
(2)  The public comment assessment shall be posted on a school district website and otherwise made available upon request.

       (iv) Submissionof district's contract to Commissioner for approval.

              (a)  A school district shall not submit its contract for excellence to the Commissioner for approval pursuant to subdivision (b) of this section until after: (1) the 30-day public comment period has ended; (2) all public hearings have been conducted; (3) the public comment record has been prepared; and (4) the public comment assessment has been prepared and posted on a school district website.

              (b)  Each school district submitting a contract for excellence to the Commissioner for approval pursuant to subdivision (b) of this section shall, within 48 hours of such submission, post a copy of such contract for excellence on its website. 

              (c)  In the city school district of the city of New York, a transcript of the testimony presented at public hearings held pursuant to subparagraph (ii) of this paragraph shall be included when the contract for excellence is submitted to the commissioner for approval pursuant to subdivision (b) of this section.

              (e)  Complaint procedures. 

              (1)  General requirements.  The trustees or board of education of each school district required to prepare a contract for excellence, or the chancellor in the case of the city school district of the city of New York, shall assure that procedures are in place by which parents of students or persons in parental relation to students may bring complaints concerning implementation of the district's contract for excellence.

              (i)  In the city school district of the city of New York, such procedures shall provide that complaints may be filed with the building principal with an appeal to the community superintendent, or filed directly with the community superintendent, and that appeal of the determination of a community superintendent shall be made to the chancellor.

              (ii)  In all other districts, such procedures shall either provide for the filing of complaints with the building principals with an appeal to the superintendent of schools or for filing of the complaint directly with the superintendent of schools, and shall provide for an appeal to the trustees or board of education from the determination of the superintendent of schools.

              (iii)  The determination of the trustees or board of education or the chancellor may be appealed to the commissioner pursuant to Education Law section 310.

              (2)  Specific requirements.  In addition to the complaint procedures established by the school district pursuant to paragraph (1) of this subdivision, each such school district shall also comply with the following:

              (i)  Complaint form. 

              (a)  Each school district shall develop a complaint form, which shall also include instructions for its use, which shall be written to the extent practicable  in plain language and organized in a manner which best promotes public comprehension of the contents.  The complaint form shall specify the location(s) where a complaint may be filed and the deadline for filing a complaint.  A school district shall also provide translations of the complaint form into the languages other than English that are most commonly spoken in the school district.

             
(b)  Use of the complaint form is recommended, but shall not be deemed mandatory, for purposes of bringing a complaint pursuant to this subdivision.  A school district shall accept a complaint that substantially complies with the school district's complaint procedures and the provisions of this subdivision.    

              (ii)  Notice of complaint procedures. 

             
(a)  Each school district shall provide reasonable notice to parents of students or persons in parental relation to students, of the following:

              (1) the procedures for bringing a complaint concerning implementation of the district's contract for excellence;

              (2)  the location(s) where a complaint form may be obtained;

              (3)  the location(s) where a complaint may be filed; and

              (4)  the deadline for filing a complaint.

              (b)  A school district shall provide translations of the notice of complaint procedures into the languages other than English that are most commonly spoken in the school district.

             
(c)  Each school district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a school district website and shall make copies of the complaint notice and complaint form available in schools and school district offices.  A school district may also use additional methods to provide notice, including, but not limited to, including copies of the complaint notice and complaint form in school district mailings and distributions.

             
(iii)  Complaint commencement, investigation and resolution.

              (a)  A complaint shall be commenced within the time period established by the school district.  Such time period shall provide for the commencement of a complaint within a reasonable, specified number of days, as determined by the school district, from the making of the decision or the performance of the act complained of, and shall include a provision authorizing the school district to excuse a failure to commence an appeal within the time specified for good cause shown.  

              (b)  The building principal, community superintendent or superintendent, as applicable, shall make reasonable efforts to investigate a complaint, and shall notify the complainant in writing of his or her complaint determination and the basis for such determination within 30 days from the date of receipt of the complaint.   The written notification shall also provide an explanation of the procedures for appealing the complaint determination. 

             
(c)  If the complainant appeals the complaint determination of a building principal to the superintendent or community superintendent, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of his or her appeal determination and the basis for such determination within 30 days from the date of receipt of the appeal.  The written notification shall also provide an explanation of the procedures for appealing the determination to the trustees/board of education or the chancellor, as applicable.

             
(d)  If the complainant appeals the complaint determination, or an appeal determination, of a superintendent or community superintendent, to the trustees/board of education or chancellor, the trustees/board of education or chancellor, as applicable, shall notify the complainant in writing of its appeal determination and the basis for such determination within 30 days from the date of receipt of the appeal.  The written notification shall also state that such appeal determination may be appealed to the commissioner pursuant to Education Law section 310 and Parts 275 and 276 of the Regulations of the Commissioner of Education.

             
(e)  Appeals of determinations pursuant to clauses (b) and (c) of this subparagraph shall be commenced within the time periods for such appeals as established by the school district.  In the event the complainant does not receive the written notification of determination specified in clause (b) of this subparagraph within 35 days from the date the school district received the complaint, the complainant may deem the failure to provide such notification as an unsatisfactory determination and may commence an appeal to the superintendent or community superintendent, or to the trustees/board of education or chancellor, as applicable, within the time period for such appeals as established by the school district. 

              (f) Reporting.  Each school district shall publicly report, in a format and timeline prescribed by the commissioner, its school-based expenditure of total foundation aid in accordance with the following:  a school district shall report in total and for each of the allowable programs and activities included in its contract for excellence and which the district proposes to fund with its annual contract amount, for each school and each district-wide program:

              (1)  expenditures in the base year;

              (2)  budgeted expenditures for the current year; and

              (3) actual expenditures for the current year.

              2.  Paragraph (1) of subdivision (e) of section 170.12 of the Regulations of the Commissioner is amended, effective May 20, 2008, as follows:

              (1)  Each school district, except those employing fewer than eight teachers, and each BOCES shall obtain, in a form prescribed by the Commissioner, an annual audit of its records by an independent certified public accountant or an independent public accountant in accordance with the provisions of Education Law section 2116-a(3) and the provisions of this subdivision.  The board of education of the City School District of the City of New York and community districts of such city school district shall obtain an annual audit by the comptroller of the City of New York, or by an independent certified public accountant in accordance with the provisions of Education Law section 2116-a(3) and the provisions of this subdivision.  For school districts required to prepare a contract for excellence pursuant to Education Law section 211-d, the annual audit for the school year during which such contract was in effect shall also include a certification by the accountant or, where applicable, the comptroller of the City of New York, in a form prescribed by the Commissioner, that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes.