Meeting of the Board of Regents | April 2003

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

TO:	The Honorable the Members of the Board of Regents
FROM:	James A. Kadamus
COMMITTEE:	Elementary, Middle, Secondary and Continuing Education
TITLE OF ITEM:	Proposed Amendment to Regulations of the Commissioner of Education Relating to the No Child Left Behind Act of 2001 (Public School Choice and Supplemental Education Services)
DATE OF SUBMISSION:	March 31, 2003
PROPOSED HANDLING:	Discussion
RATIONALE FOR ITEM:	Compliance with Laws of 2002
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY:

Attached is a proposed amendment to Part 120 of the Regulations of the Commissioner of Education submitted for discussion. Supporting materials are available upon request from the Secretary to the Board of Regents. The proposed amendment will be submitted for approval in June.

The purpose of the proposed amendment to Part 120 is to conform the Regulations of the Commissioner of Education to Federal regulations and guidance relating to implementation of the public school choice and supplemental educational services provisions of the No Child Left Behind Act of 2001. Specifically, the proposed amendment: (1) excludes as an option the transfer of students in a Title I school in school improvement, corrective action or restructuring status to a school identified as persistently dangerous; (2) clarifies that a student�s right to transfer to a magnet school or special focus school is subject to the student meeting such school�s entrance requirements based on academic or other skills; (3) requires a Title I school to provide a student�s parents or other persons in parental relationship with a choice for student transfer of more than one school if more than one school is served by the Title I school, and to take into account the preferences of the parents or other persons in parental relationship among the choices offered; (4) requires a district, in the transfer of a student with a disability covered by section 504 of the Rehabilitation Act or Individuals with Disabilities Education Act, to ensure such student continues to receive a free appropriate education; (5) requires Title I schools to notify parents of the identity of approved providers of supplemental educational services within the area served by the Title I school, including any approved providers of technology-based or distance learning supplemental educational services; (6) requires a Title I school to ensure eligible students with disabilities and limited English proficient students receive appropriate supplemental educational services, accommodations and language assistance in the provision of those services; (7) requires the goals, method of measurement and timetable set forth in the contractual agreement between the LEA and an approved supplemental educational services provider to be consistent with a student�s individualized education program or section 504 plan; and (8) clarifies that funds provided for supplemental educational services instruction will not be used for religious workshop or instruction. A Notice of Proposed Rule Making will be published in the State Register no later than April 23, 2003.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 101, 207, 215, 305(1), (2) and (33), 2802(7) and 3713 (1) and (2)

1. Subdivision (a) of section 120.3 of the Regulations of the Commissioner of Education is amended, effective July 3, 2003, as follows:

(a) Each Title I LEA that has a school in school improvement status, corrective action status or restructuring status shall provide all students enrolled in the school the option to transfer to another public school served by the Title I LEA at the same grade level that is not a school identified as a persistently dangerous school pursuant to section 120.5 of this article or in school improvement status, corrective action status or restructuring status to the extent required by section 1116(b)(1)(E) of the NCLB, 20 U.S.C. section 6316(b)(1)(E) (Public Law section 107-110, section 1116(b)(1)(E), 115 STAT. 1479; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, New York 12234). Nothing in this section shall be construed to confer a right to transfer to a magnet school or special focus school having entrance requirements based on academic or other skills without meeting such requirements, or to transfer to a school where such transfer would violate health and safety code requirements or would otherwise be in violation of law. If more than one school served by the Title I LEA meets the requirements of this subdivision, the Title I LEA shall provide the parents or other persons in parental relationship to such students with a choice of more than one such school, and shall take into account the preferences of the parents or other persons in parental relationship among the choices offered by the Title I LEA.

2. Subdivision (f) of section 120.3 of the Regulations of the Commissioner of Education is amended, effective July 3, 2003, as follows:

(f) Upon the transfer of a student with a disability pursuant to this section or a student who is an individual with a disability covered by section 504 of the Rehabilitation Act of 1973 (29 U.S.C. section 794) ("section 504"), the school district shall ensure that the student continues to receive [special education programs and services] a free appropriate public education in accordance with [that student's Individualized Education Program (IEP)] the Individuals with Disabilities Education Act (IDEA) or section 504.

3. Subdivision (f) of section 120.4 of the Regulations of the Commissioner of Education is amended, effective July 3, 2003, as follows:

(f) Local educational agency responsibilities. A Title I LEA that is required to arrange for the provision of supplemental educational services with an approved provider pursuant to section 1116(e) of the NCLB, 20 U.S.C. section 6316(e) (Public Law section 107-110, section 1116(e), 115 STAT. 1491-1494; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, New York 12234) shall:

(1) notify parents of eligible students annually, in a format and, to the extent practicable, in a language [or other mode of communication] that such parents can understand, of:

(i) the availability of supplemental educational services; and

(ii) the identity of approved providers of those services that are within the area served by the local educational agency, including any approved providers of technology-based or distance learning supplemental educational services, or are reasonably available in neighboring school districts, together with a brief description of the services, qualifications and demonstrated effectiveness of each such provider;

(2) if requested, assist parents in choosing an approved provider;

(3) ensure that if the amount of funds available pursuant to the NCLB to provide supplemental educational services is insufficient to provide such services to each eligible student whose parents request the services, priority is given to providing the services to the lowest achieving eligible students;

(4) apply fair and equitable procedures for serving eligible students if the number of spaces at approved providers is not sufficient to serve all such students;

(5) not disclose to the public the identity of any student who is eligible for, or receiving, supplemental educational services without the written permission of the parents of the student;

(6) ensure that eligible students with disabilities under the IDEA and eligible students who are individuals with disabilities covered by section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. � 794 ) receive appropriate supplemental educational services and accommodations in the provision of those services;

(7) ensure that eligible limited English proficient students receive appropriate supplemental educational services and language assistance in the provision of those services;

(8) contact providers selected by the parents and enter into a contractual agreement with each such provider that includes:

(i) a statement of specific achievement goals for each eligible student based upon such student's specific educational needs;

(ii) a description of how each such student's progress will be measured;

(iii) a timetable for improving achievement;

(iv) for eligible students with disabilities under the IDEA and eligible students who are individuals with disabilities covered by section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. � 794 ), the goals, method of measurement and timetable set forth in the agreement must be consistent with such student's individualized education program pursuant to the Individuals with Disabilities Education Act or the student's section 504 plan, where applicable;

(v) the initiation date, frequency and duration of services to be provided;

(vi) the location where services will be provided;

(vii) a description of how each eligible student's parents, teacher(s) and the local educational agency will be regularly informed, at least quarterly, of the student's progress;

(viii) a provision for termination of the agreement if the provider is unable to meet the goals and timetables;

(ix) a provision that the term of the agreement shall not exceed the end of the academic year in which the student first received such services;

(x) a provision that the agreement will terminate immediately upon the provider's removal from the Department's list of approved supplemental educational services providers, pursuant to subdivision (e) of this section;

(xi) payment provisions based on eligible student attendance and delivery of supplemental educational services;

(xii) an assurance from the provider that the identity of any student who is eligible for, or receiving, supplemental educational services will not be disclosed without the written permission of the parents of the student;

(xiii) a description of the program to be used;

(xiv) the experience and qualifications of staff responsible for the delivery of the instructional program, including an assurance that instruction will be provided under the general supervision of a New York State certified teacher;

(xv) provisions that subject all individuals employed by, or otherwise associated with, the provider who will have direct contact with students, to the fingerprint and criminal history record check requirements contained in law, including, but not limited to, Education Law ��305(30), 1125(3), 1604(39) and (40), 1709(39) and (40), 1804(9) and (10), 1950(4)(ll), 1950(4)(mm), 2503(18) and (19), 2554(25) and (26), 2590-h(20), 2854(3)(a-2) and (a-3) and 3035, and Part 87 of this Title;

(xvi) a requirement that the provider submit to the Title I LEA, commencing on May 31, 2003 and annually thereafter, a final written report in a form prescribed by the Commissioner that summarizes the progress of eligible students provided with supplemental educational services pursuant to its agreement(s) with the local educational agency.

[(7)] (9) monitor the following:

(i) the quality and effectiveness of the services offered by each approved provider the local educational agency has contracted with; and

(ii) the responsibilities of each approved provider with which the Title I LEA has contracted with to:

(a) ensure that the instruction provided and content used are consistent with the instruction provided and content used by the appropriate Title I LEA and the State, and are aligned with State learning standards in the areas of English language arts (including reading) and mathematics;

(b) provide parents and teachers of all students receiving supplemental educational services, the Title I LEA and the school with information on the progress of the students in increasing achievement, in a format and, to the extent practicable, in a language [or a mode of communication] that such parents can understand;

(c) ensure that supplemental educational services instruction and content are secular, neutral and nonideological and that funds will not be used for religious worship or instruction;

(d) comply with all applicable Federal, State, and local health, safety, and civil rights laws; and

(e) comply with the applicable contractual agreement pursuant to paragraph (5) of this subdivision.

[(8)] (10) notify the State Education Department of any noncompliance by an approved provider with respect to the provider's responsibilities as listed in paragraph (7)(ii) of this subdivision, including immediate notification of the Department of any noncompliance involving a threat to the health and/or safety of students.

[(9)] (11) commencing on June 30, 2003 and annually thereafter, submit to the State Education Department a monitoring report in a form prescribed by the Commissioner, together with a copy of each provider's report prepared pursuant to subdivision (xvi) of paragraph (5) of this subdivision.