Meeting of the Board of Regents | April 2007

SUMMARY 

Issue for Action

Should the Board of Regents adopt as an emergency measure the proposed addition of section 100.13 and amendment of section 170.12 to the Regulations of the Commissioner relating to contracts for excellence?

Reason(s) for Consideration

Required by State statute.

         

Proposed Handling

This question will come before the Full Board on April 24, 2007.

Procedural History

Not applicable.

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, the proposed amendments 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.

Significant effort has been made to reach out to stakeholders for input and comment throughout the process of drafting these regulations. Knowing that the timeframe for development of these regulations required in the statute would be severely limited, meetings and discussions began even before final passage of the final budget bills.  Draft materials and a field memorandum were sent to all school districts only days after the enactment of the budget and subsequent teleconferences with districts were held.  This outreach resulted in the receipt of numerous comments from various stakeholders that have been used to inform the development of the proposed regulatory language relating to the contracts for excellence.   Comments continue to be received even as these regulations are being discussed by the Regents. 

Enactment of these emergency regulations now does not preclude consideration of the additional input and comments from the field.  There will be a 45-day public comment period on the proposed amendments following action by the Board of Regents adopting the proposed amendments on an emergency basis.  Such comment may warrant additional amendments to the regulatory language prior to confirmation as a permanent rule.  However, it is critical that school districts receive the guidance provided now through the proposed amendments in order to adjust their school budgets as needed and to timely prepare their contracts of excellence for the 2007-08 school year as required by the statute.   In addition, some of the comments have raised related issues that are not required to be included in the regulations but will be addressed in comprehensive guidelines the Department will finalize and disseminate widely.

The proposed amendments are being presented for adoption as an emergency action.  A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached.  A joint Notice of Emergency Adoption and Proposed Rule Making will be published in the State Register on May 16, 2007.    

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 April 27, 2007, 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 immediately establish criteria for the allowable programs and activities, criteria for public reporting by school districts of their total Foundation Aid expenditures and other requirements for purposes of preparing contracts for excellence so that affected school districts may timely prepare such contracts for the 2007-2008 school year pursuant to statutory requirements.

Timetable for Implementation

The emergency amendments will become effective on April 27, 2007.  A second emergency adoption will be necessary at the June Regents meeting to ensure that the amendments remain continuously in effect until the regulation can be submitted to the Board of Regents for confirmation as a permanent rule in July.

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 April 27, 2007, 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 process to determine if a student responds to scientific, research-based intervention in accordance with the following minimum requirements:


          (i)  research-based instruction provided to all students in the class by qualified personnel;


          (ii)  instruction matched to student need with increasingly intensive levels of targeted intervention and instruction for students who do not make satisfactory progress in their levels of performance and/or in their rate of learning;


          (iii)  frequent screenings and repeated assessments of student achievement; and


          (iv)  the application of information about the student's response to instruction to make educational decisions about changes in goals, instruction and/or services.


          (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).


          (d)  Allowable programs and activities. 


          (1)  General requirements.  Allowable programs and activities shall:


          (i) predominately benefit those students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring;


          (ii)  predominately benefit 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;


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


          (iv) be developed in reference to practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards;


          (v) 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;


          (vi)  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; 




          (vii)  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


          (viii)  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.


          (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.  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:


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


          (1)  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


          (2)  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.


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


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


          (2)  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.


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


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


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


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


          (4)  individualized intensive intervention shall be provided.


          (d)  Individualized tutoring, pursuant to the following:


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


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


          (3) 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;


          (4) 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


          (5)  excludes costs for supplemental educational services.


          (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 a highly qualified teacher is present in 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 through the development and implementation of recruitment strategies and retention incentives;


          (b)  professional mentoring programs for beginning 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


          (2) programs shall be limited to teachers and principals who are in their first or second year of a new assignment;


          (c)  incentive programs to encourage highly qualified 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 to improve student attainment of State learning standards; and


          (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 leader, school building leader and/or school district business leader and have demonstrated success as such.


          (iv) Middle school and 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; or


          (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;


          (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, 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 shall be in partnership with an institution of higher education or other organization with extensive research experience and capacity.


          (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, 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.


          (3)  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 April 27, 2007, 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.  The annual audit 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.    

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.

              State Administrative Procedure Act (SAPA) section 202 generally provides that a rule may not be adopted until at least 45-days after publication of a Notice of Proposed Rule Making in the State Register.  Because the Board of Regents meets at fixed intervals, the earliest the proposed rule could be presented for adoption by the Board of Regents, after expiration of the 45-day public comment period prescribed by SAPA , is the July 25-27, 2007 Regents meeting.  However, affected school districts need to know now what are the allowable programs and activities and other requirements necessary to implement Education Law section 211-d, so that they may timely prepare their contracts for the 2007-2008 school year pursuant to statutory requirements.

              Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare 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.

              It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the July 25-27, 2007 meeting of the Board of Regents, which is the first scheduled Regents meeting after expiration of the 45-day public comment period prescribed by the State Administrative Procedure Act.