Meeting of the Board of Regents | September 2007

Saturday, September 1, 2007 - 8:00am

sed seal

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

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Adoption of the Proposed Amendment to the Regulations of the Commissioner Relating to the Education of Pupils with Limited English Proficiency
DATE:	August 29, 2007
STRATEGIC GOAL:	Goal 3
AUTHORIZATION(S):

SUMMARY

Issue for Action

Should the Board of Regents adopt as a permanent rule the proposed amendment of sections 154.2, 154.3 and 154.4 of the Regulations of the Commissioner to conform to Chapter 57 of the Laws of 2007 that requires school districts receiving total foundation aid to develop a comprehensive plan for the education of pupils with limited English proficiency?

Reason(s) for Consideration

Required by State statute.

Proposed Handling

The proposed amendment was adopted as an emergency measure at the June Regents meeting and will come before the Board of Regents in September for adoption as a permanent rule. A second emergency adoption is also necessary at the September meeting to ensure that the June emergency rule remains continuously in effect until the effective date of its adoption as a permanent rule. A statement of the facts and circumstances which necessitate emergency action is attached.

Procedural History

The proposed amendment was adopted at the June 25-26, 2007 Regents meeting as an emergency measure, effective June 29, 2007. A Notice of Proposed Rule Making was published in the State Register on June 27, 2007.

Background Information

Chapter 57 of the Laws of 2007 authorizes the Commissioner of Education to establish regulations that would require school districts receiving total foundation aid to develop a comprehensive plan to meet the educational needs of pupils with limited English proficiency (LEP). The statute also gives the Commissioner the authority to establish the criteria for the development of such plan. Prior to enactment of Chapter 57 of the Laws of 2007, school districts had the option of whether to claim State funds for the education of LEP pupils. Currently, Part 154 prescribes requirements for districts that claim or do not claim State limited English proficiency aid. Limited English proficiency aid will no longer be available to school districts beginning in school year 2007-08. The proposed amendment will establish:

(1) uniform requirements for all districts for the development of the district’s comprehensive plan. Each plan must include the district’s philosophy for the education of LEP pupils; the procedures for screening, identifying and annually assessing LEP pupils; a description of the type of program(s) implemented; the criteria used to place LEP pupils in an English as a second language (ESL) or bilingual program; the types of curricular and extracurricular activities available; information on how the program will be managed; and a signed statement of assurances;

(2) specific criteria for the submission of required reports;

(3) standards for the distribution of school-related information to parents of

LEP pupils; and

(4) standards for the referral of LEP pupils suspected of having a disability.

The State Education Department has solicited and received comments from various stakeholders that have been used to inform the development of the proposed regulatory language relating to the education of pupils with limited English proficiency. The language of the proposed amendment closely aligns with the requirements of the State statute. There are a number of related issues that are not required to be in regulation but will be addressed in comprehensive guidelines the Department will finalize and disseminate widely.

Recommendation

Staff recommend that the Regents take the following action:

VOTED: That the title of Part 154 of the Regulations of the Commissioner of Education and paragraph (1) of subdivision (d) of section 154.2 of the Commissioner's Regulations be amended, that sections 154.3 and 154.4 be repealed, and that a new section 154.3 be added, as submitted, effective September 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 ensure that the emergency rule adopted at the June 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 June Regents meeting, effective June 29, 2007. The June emergency rule will expire on September 26, 2007. The second emergency action will become effective on September 27, 2007. The permanent adoption of the amendment will become effective October 4, 2007.

Attachment

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

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

1. The title of Part 154 of the Regulations of the Commissioner of Education is amended, effective October 4, 2007, as follows:

Part 154

[APPORTIONMENT AND] SERVICES FOR PUPILS WITH LIMITED ENGLISH PROFICIENCY

2. Paragraph (1) of subdivision (d) of section 154.2 of the Regulations of the Commissioner of Education is amended, effective October 4, 2007, as follows:

(1) The language arts instructional component shall include English language arts instruction and English as a second language instruction. The learning standards for English language arts (ELA) and English as a second language (ESL), and key ideas and performance indicators for such standards, shall serve as the basis for the [(ELA)] ELA and ESL curriculums, respectively.

(i) . . .

(ii) . . .

3. Section 154.3 of the Regulations of the Commissioner of Education is repealed, effective October 4, 2007.

4. A new section 154.3 of the Regulations of the Commissioner of Education is added, effective October 4, 2007, as follows:

154.3 School District Responsibility
.

The provisions of this section shall apply to programs operated in the 2007-08 school year and thereafter. All limited English proficient students shall be entitled to receive services in accordance with subdivision 2 and 2(a) of section 3204 of the Education Law.

(a) Each school district receiving total foundation aid, including each community school district of the city of New York, shall develop a comprehensive plan to meet the educational needs of pupils with limited English proficiency. Such plan shall be kept on file in the district and made available for department review upon request of the department. The plan shall include:

(1) the district’s philosophy for the education of such pupils;

(2) administrative practices and procedures to:

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

(ii) identify such pupils with limited English proficiency;

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

(3) a description of the nature and scope of the bilingual and/or English as a second language instructional program and services available to limited English proficient pupils;

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

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

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

(b) School related information shall be distributed to parents or other persons in parental relationship to pupils with limited English proficiency in English or when necessary the language they understand;

(c) The school district shall submit to the commissioner the results of the annual evaluation of limited English proficient pupils, including test data and any additional data required by the commissioner, in the format and timeframe specified by the commissioner;

(d) The school district shall ensure that the provisions of section 3204 of the Education Law with respect to the instruction of limited English proficient pupils are adhered to.

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

(f) The school district shall submit to the commissioner the following documents in a form and by a date specified by the commissioner:

(1) an assurance:

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

(ii) that each such pupil has equal opportunities to participate in all school programs and extracurricular activities as non-limited English proficient pupils;

(iii) that the minimum ESL and ELA requirements prescribed in section 154.2(d) of this Part for the freestanding ESL programs are adhered to;

(iv) that the minimum ESL, ELA and NLA requirements prescribed in section 154.2(e) of this Part for bilingual education programs are adhered to;

(v) that teachers in the district’s free-standing ESL and bilingual education programs are appropriately certified pursuant to Part 80 of this Title;

(vi) the district will comply with the requirements of this Part and the provisions of the Education Law governing programs for pupils with limited English proficiency;

(vii) that programs for limited English proficient pupils will be administered in accordance with applicable federal and state law and regulations and the district’s comprehensive plan;

(2) a report by building of the number of pupils identified as being limited English proficient in the preceding year, including their grade level, native language and instructional program;

(3) a report by building of the number of limited English proficient pupils served in the preceding year, including their grade level, native language and instructional program;

(4) a report by building of the number of pupils that took the NYSESLAT in the preceding school year;

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

(6) a fiscal report containing such data concerning the preceding school year as may be required by the commissioner; and

(7) beginning in July 2008 and annually thereafter, a report on the expenditure of state, local and federal funds in the prior year on programs, activities and services for pupils with limited English proficiency.

(g) Types of programs.

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

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

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

(i) Transitional services. Each school district shall ensure a transition for former limited English proficient pupils transferring from a bilingual or free-standing English as a second language program into an English mainstream program. Transitional services shall be provided for the first year after the pupil is placed in the English mainstream instructional program.

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

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

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

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

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

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

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

(l) A pupil whose score on the LAB-R or the NYSESLAT, as specified in section 154.2(a),(b) and (c) of this Part, is a result of a disability shall be provided special education programs and services in accordance with the individualized education program (IEP) developed for such pupil pursuant to Part 200 of this Title, and shall also be eligible for services pursuant to this Part when such services are recommended in the IEP. A pupil with a disability receiving services in accordance with the provisions of this section shall be counted as a pupil with limited English proficiency, as well as a student with a disability, for purposes of calculating State aid pursuant to section 3602 of the Education Law.

5. Section 154.4 of the Regulations of the Commissioner of Education is repealed, effective October 4, 2007.

PROPOSED AMENDMENT OF SECTION 154.2, REPEAL AND ADDITION OF SECTION 154.3, AND REPEAL OF SECTION 154.4 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 215, 2117, 3204 AND 3602 OF THE EDUCATION LAW AND CHAPTER 57 OF THE LAWS OF 2007, RELATING TO PUPILS WITH LIMITED ENGLISH PROFICIENCY.

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed rule is necessary for the Department to come into compliance with Chapter 57 of the Laws of 2007. Changes to the Education Law related to the education of pupils with limited English proficiency, as enacted under Chapter 57 of the Laws of 2007, are no longer in line with the current Part 154 regulations. Current Part 154 regulations prescribe requirements for school districts claiming State limited English proficiency aid as well as for districts not claiming State limited English proficiency aid for the education of pupils with limited English proficiency. Under Chapter 57 of the Laws of 2007, schools will no longer claim State limited English proficiency aid. Beginning in 2007-2008, all districts will receive total foundation aid.

Furthermore, Education Law section 3204(2-a)(1), as amended by section 10 of Chapter 57 of the Laws of 2007, requires each school district which is receiving total foundation aid to develop a comprehensive plan consistent with requirements as the Commissioner may establish in regulations to meet the educational needs of pupils of limited English proficiency. Such plan shall include a description of the programs, activities and services used to meet the educational needs of such pupils that comply with the regulations of the Commissioner governing such programs.

Consistent with Education Law section 3204(2-a)(1), as amended by section 10 of Chapter 57 of the Laws of 2007, the proposed amendment will require school districts receiving total foundation aid to develop a comprehensive plan for the education of students with limited English proficiency. Each school district receiving total foundation aid must develop a comprehensive plan consistent with Education Law section 3204(2-a)(1) and Part 154 of the Commissioner's Regulations, commencing with the 2007-2008 school year. As a result, it is critically important to expedite the submission and approval of the proposed amendment.

The proposed amendment was adopted at the June 25-26, 2007 Regents meeting as an emergency measure, effective June 29, 2007, in order to immediately establish requirements for the development of comprehensive plans for students with limited English proficiency by school districts pursuant to Education Law section 3204, as amended by Chapter 57 of the Laws of 2007, and to otherwise conform Part 154 of the Commissioner's Regulations to the statute, so that school districts may timely prepare and implement such plans pursuant to statutory requirements for the 2007-2008 school year. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on June 27, 2007.

The proposed rule has been adopted as a permanent rule at the September 10-11, 2007 Regents meeting. Pursuant to the State Administrative Procedure Act section 203(1), the earliest the adopted rule can become effective is upon its publication in the State Register on October 3, 2007. However, the June emergency rule will expire on September 26, 2007, 90 days after its filing with the Department of State on June 29, 2007. A lapse in the rule's effectiveness would disrupt development of comprehensive plans and other services provided for students with limited English proficiency by school districts pursuant to Education Law section 3204, as amended by Chapter 57 of the Laws of 2007.

A second emergency adoption is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the June Regents meeting 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 207, 215, 2117, 3204 and 3602

1. The title of Part 154 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

Part 154

[APPORTIONMENT AND] SERVICES FOR PUPILS WITH LIMITED ENGLISH PROFICIENCY

2. Paragraph (1) of subdivision (d) of section 154.2 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(i) . . .

(ii) . . .

3. Section 154.3 of the Regulations of the Commissioner of Education is repealed, effective September 27, 2007.

4. A new section 154.3 of the Regulations of the Commissioner of Education is added, effective September 27, 2007, as follows: