Meeting of the Board of Regents | January 2008

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

 

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Sixth Emergency Adoption of the Proposed Amendments to the Regulations of the Commissioner Relating to Contracts for Excellence
DATE:	January 4, 2008
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

 

 

SUMMARY

 

 

Issue for Decision

 

Should the Board of Regents adopt as a sixth emergency action the proposed addition of section 100.13 and amendment of section 170.12 of the Regulations of the Commissioner relating to Contracts for Excellence?

 

Reason(s) for Consideration

 

Required by State statute.

Proposed Handling

 

This proposed amendment will come before the Board of Regents at its January meeting for adoption as a sixth emergency action, effective January 22, 2008, to ensure that the emergency rule which 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 Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule. Further revisions, based on the Department’s experience with the implementation of the Contracts for Excellence and comments from the field will be discussed with the Regents in February.  It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the March 2008 Regents meeting.

 

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 and October 23, 2007 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.  The October emergency rule will expire on January 21, 2008.

 

Background Information

 

Chapter 57 of the Laws of 2007 authorizes the Commissioner of Education to establish allowable programs and activities, criteria for public reporting by school districts of their total Foundation Aid expenditures and other requirements for the preparation of Contracts for Excellence by certain specified school districts.  Education Law section 211-d requires each school district that:

 

(1)         has at least one school currently identified as (i) requiring academic progress or (ii) in need of improvement or (iii) in corrective action or (iv) in restructuring; and

(2)         receives an increase in either (i) total Foundation Aid compared to the base year in an amount that equals or exceeds either $15 million or 10 percent of the amount received in the base year, whichever is less, or (ii) a supplemental educational improvement plan grant,

 

to prepare a Contract for Excellence, which describes how the total Foundation Aid and supplemental educational improvement plan grants will 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.

 

Specifically, for greater clarity and as discussed in previous months,  the proposed regulatory amendment will establish:

 

(1)         requirements for the preparation and submission of the contracts for excellence, including a requirement that the New York City School District include a plan to reduce average prekindergarten through grade 12 class sizes within five years;

(2)         the allowable programs and activities under the contracts, which are limited to: (i) class size reduction, (ii) student time on task , (iii) teacher and principal quality initiatives, (iv) middle school and high school restructuring, and (v) full-day kindergarten or prekindergarten programs;

(3)         criteria for experimental programs, not included in the allowable programs and activities, that are designed to demonstrate the efficacy of other strategies to improve student achievement, and for which the Commissioner may authorize a district to spend up to 15 percent of the contract amount;

(4)         requirements for school districts to develop their contracts for excellence through a public process, commencing with the 2008-09 school year, which shall include at least one public hearing and be made in consultation with parents or persons in parental relation, teachers, administrators, and distinguished educators appointed pursuant to Education Law section 211-c;

(5)         requirements for procedures by which parents may bring complaints concerning implementation of contracts for excellence; and

(6)         requirements for school districts to publicly report their expenditure of total Foundation Aid.

 

Revisions to the proposed amendment based on suggestions from members of the Board of Regents, the Department’s experience with the implementation of the Contracts for Excellence and additional comments from the field (including advocacy groups) are being developed.  On December 19, 2007, the Department held a meeting with Contract for Excellence school district representatives in Albany. In addition to eighty-two superintendents and other Contract for Excellence district representatives , Regent Bowman and staff from the Governor’s office, the Legislature and professional associations, participated in person and via Web-cast to discuss improvements to the web-based system and possible regulatory and legislative changes.   Because there was insufficient time between the December 19th meeting and the mailing date for January Regents items to evaluate the issues raised at the meeting and complete the proposed revisions for consideration by the Regents at their January meeting, the proposed revisions will be prepared for discussion by the Regents at their February meeting.  These revisions may include:

 

• additional clarification of the standards for approving Contracts,
• timelines for NYSED and district action, and
• procedures relating to public participation in developing Contracts.

 

These proposed changes will require publication of a Notice of Revised Rule Making in the State Register and 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.  The proposed amendment is being presented for a sixth emergency action to ensure that the emergency rule remains continuously in effect until it can be adopted and made effective as a permanent rule.  A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached.  

 

The Department is also recommending some possible statutory changes to address suggestions from members of the Board of Regents, suggestions from the field  and our own analysis of related to issues including which districts should be designated as Contract for Excellence districts, elimination of the charter school deduction, clarifying that C4E funds can be used to pay for the increased costs of programs implemented in prior years, and  defining the full term for being a C4E district to be three years rather than one.   A three-year time frame will also allow proper evaluation of C4E programs after students have had sufficient time to benefit from them.  Changes in the statute made in the final 2008-09 State Budget will likely result in the need for additional changes in the regulations by the Regents. 

 

In addition to receiving specific suggestions for possible revisions to the regulations and statute, the December 19th meeting provided an opportunity for Contract districts to share experiences and ideas and benchmark each other for the future.  The Department received many positive comments about the meeting.  The following are just a few examples of those comments:

“Thank you for the opportunity to share our collective ideas and concerns”.

“You have a nice team that is really trying hard and doing the right thing.  Great attitudes from you folks.  Thanks”.

“Thank you.  This was a very proactive session and filled with a proactive tone.  The combination of small group and large group discussion broke up the lengthy day.  Again, very forward thinking.” 

“I appreciated the positive nature of this session.  We see that you are taking ideas and feedback into account.  Thank you.”

“Thank you for stepping up as a State Ed. Dept. and Showing Leadership, too often in the past SED has been seen as regulators.”

“Thank you for creating this new opportunity for SED/field problem solving and discussion:  what a wonderful new approach to collaboration and collective feedback.  Worthwhile and helpful!”

“Thank you for the opportunity to participate in this session.  Staff have been very helpful throughout the process.  We look forward to continue our partnership to address C4E and the needs of our students and community.”

 

 

              We plan to have additional meetings and conversations with Contract for Excellence school districts as implementation and monitoring continues.

 

Recommendation

 

Staff recommend that the Regents take the following action:

 

              VOTED:  That section 100.13 of the Regulations of the Commissioner be added and that paragraph (1) of subdivision (e) of section 170.12 be amended as submitted, effective January 22, 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 ensure that the emergency rule that was adopted at the April Regents meeting, revised and readopted at the June and July Regents meetings, and readopted at the September and October Regents meeting, remains continuously in effect until the effective date of its adoption as a permanent rule.

 

Timetable for Implementation

 

The proposed amendment was adopted as an emergency measure at the April Regents meeting, effective April 27, 2007, revised and readopted as an emergency rule at the June and July Regents meetings, and readopted as an emergency action at the September and October Regents meetings.  The October emergency rule will expire on January 21, 2008.  The January sixth emergency adoption will become effective on January 22, 2008. Further revisions to the proposed amendment based on the Department’s experience with the implementation of the Contracts for Excellence and comments from the field will be shared with the Board of Regents in February for consideration.  These proposed changes will require publication of a Notice of Revised Rule Making in the State Register and 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. It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the March 2008 Regents meeting, with an April 10, 2008 effective date.

 

 

 

 

 

Attachment

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, 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, 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 each school district: (1) that has at least one school currently identified as (i) requiring academic progress or (ii) in need of improvement or (iii) in corrective action or (iv) in restructuring; and (2) that receives an increase in either (i) total foundation aid compared to the base year in an amount that equals or exceeds either $15 million dollars or 10 percent of the amount received in the base year, whichever is less, or (ii) a supplemental educational improvement plan grant, 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.

              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 meeting, and again at their October 23, 2007 meeting, 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.  The October emergency rule will expire on January 21, 2008.

              Further revisions to the proposed amendment are being considered, based on suggestions from members of the Board of Regents, the Department’s experience with the implementation of the Contracts for Excellence and additional comments from school districts and other interested parties, which will require publication of a Notice of Revised Rule Making in the State Register.  Pursuant to the 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 March 17-18, 2008 Regents meeting.  However, the October emergency adoption will expire on January 21, 2008, 60 days after its filing with the Department of State on November 25, 2007.  A lapse in the rule's effectiveness would disrupt implementation of the contract for excellence program under Education Law section 211-d.  A sixth emergency adoption is therefore necessary for the preservation of the general welfare to ensure that the emergency rule that was adopted at the April Regents meeting, revised at the June and July Regents meetings, and readopted at the September and October Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule.

 

 

 

 

 

 

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

              1.  Section 100.13 of the Regulations of the Commissioner of Education is added, effective January 22, 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)  "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 (d) 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 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.

              (b)  Applicability. 

              (1)  A contract for excellence shall be prepared pursuant to the provisions of this section by each school district:

              (i)  that has at least one school currently identified pursuant to section 100.2(p) of this Part as:

              (a)  requiring academic progress; or

              (b) in need of improvement; or

              (c) in corrective action; or

              (d) in restructuring; and

              (ii)  that receives:

              (a)  an increase in total foundation aid compared to the base year in an amount that equals or exceeds either fifteen million dollars or ten percent of the amount received in the base year, whichever is less; or

              (b)  a supplemental educational improvement plan grant.

              (2)  For the 2007-2008 school year, such increase in total foundation aid shall be the amount of the difference between total foundation aid received for the current year and the total foundation aid base as defined in Education Law section 3602(1)(j).

              (3)  In the city school district of the city of New York, a contract for excellence shall be prepared for the city school district and each community district that meets the criteria set forth in paragraph (1) of this subdivision. 

              (c)  Contract requirements. 

              (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 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 (d) of this section; 

              (ii) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to subdivision (d) of this section, for which each sub-allocation of the 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; and

              (c) students with disabilities; 

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

              (v)  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 subdivision 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 (d) 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; and

              (c)  students with disabilities;

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

              (d)  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; and

              (3)  students with disabilities;

              (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 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 schools requiring academic progress, schools in need of improvement, schools in corrective action, schools in restructuring status, and overcrowded schools;

              (ii) for the 2007-2008 school year, the city school district of the city of New York 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;

              (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 schools requiring academic progress, schools in need of improvement, schools in corrective action, schools in restructuring status, and overcrowded schools;

              (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)  Full-day kindergarten 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 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 contract amount, whichever is less, to maintain investments in programs and activities listed in Education Law section 211-d(3)(a).

              (e)  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:

              (i)  a district's contract for excellence shall be developed through a public process, in consultation with parents or persons in parental relation, 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, a public hearing shall be held within each county of such city.  A transcript of the testimony presented at such public hearings shall be included when the contract for excellence is submitted to the commissioner for review when making a determination pursuant to paragraph (5) of subdivision (c) of this section. The contract shall be developed, to the extent appropriate, consistent with section 100.11 of this Title; and

             
(ii)  In the city school district of the city of New York, each 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.

              (f)  Complaint procedures.  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 or persons in parental relation may bring complaints concerning implementation of the district's contract for excellence.

              (1)  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.

              (2)  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.

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

              (g)  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 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 January 22, 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.