0505emscvesida8

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

TO:	EMSC-VESID Committee
FROM:	James A. Kadamus
SUBJECT:	Emergency Adoption of Proposed Amendment to Regulations of the Commissioner Relating to General Education and Assessment Requirements for Grades Pre-kindergarten through Grade 4 and Grades 5 through 8
DATE:	May 12, 2005
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

Summary

Issue for Decision

Should the Regents adopt the proposed amendment to the Regulations of the Commissioner to implement the three-model middle-level strategy adopted by the Board in February 2005?

Reason for Consideration

Implementation of Regents policy.

Proposed Handling

The proposed amendment will come before the EMSC-VESID Committee on May 16, 2005 for emergency adoption. It will then come before the full Board for action on May 17, 2005. It will be necessary to act on a second emergency action at your July meeting in order to keep the proposed rule continuously in effect until it can be adopted as a permanent rule at your September meeting. A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached.

Procedural History

The Board adopted a new Regents Policy Statement on Middle-Level Education in July 2003. In February 2005, the Board approved a three-model strategy for implementing the new policy and directed staff to develop the necessary amendments to the Regulations of the Commissioner.

Background Information

Since the new Policy Statement was approved in 1993, the Board of Regents consulted with the field and considered several proposals for implementing the new policy. The Regents determined that there was no single model to transform middle-level schools and to improve student performance. Therefore, the Regents adopted a three-model strategy that provides a continuum of options based upon the need and capacity of a district and school to change. The three models are:

Model A (Comply with Existing Regulations): The district would continue to comply with the current regulations, making full use of the existing flexibility provisions in the regulations (e.g., offering exploratory courses in grade 6).

· Model B (Strengthen the Academic Core): The district would be able to propose a program that strengthens core academic subjects and effective academic intervention services, and provides all students with exploratory subjects that address the learning standards, are of high interest to students and further reinforce core academic learning.

· Model C (Build on Success: Develop Next Generation Schools/Programs): The district would be able to propose new ideas for restructuring the full educational program (Model C#1) or specific program refinements (Model C#2) and be granted relief from programmatic regulatory requirements, while ensuring that all students receive opportunities to achieve all of the State learning standards.

Attached is a summary of key provisions of the proposed amendment as well as the proposed regulatory language. We have also included in the regulatory language proposed language to clarify the grade-by-grade testing requirements under the federal No Child Left Behind Act for pre-kindergarten to grade 4 and for grades 5 to 8. This includes technical language relating to testing accommodations and State alternate assessments for students with disabilities. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

Recommendation

The Regents should adopt the proposed amendment to the Regulations of the Commissioner to implement the three-model middle-level strategy adopted by the Regents in February 2005.

VOTED: That sections 100.3, 100.4 and 80-5.12 of the Regulations of the Commissioner of Education be amended as submitted, effective May 24, 2005, 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 middle-level education program models, consistent with Regents policy, to ensure sufficient time for districts with eligible low-performing schools and eligible new or high-performing schools to prepare and submit Model B, C1, or C2 applications, for the Department to review and act on the applications, and for the districts to make the necessary programmatic adjustments to begin implementing their approved programs in the 2005-06 school year.

Timetable for Implementation

The proposed amendment will become effective on May 24, 2005. This will allow interested districts the time necessary to develop applications for implementation in the 2005-06 school year. The Department will post on its web site the application material that districts must use in completing their proposals.

SUMMARY OF KEY PROVISIONS OF THE PROPOSED AMENDMENT TO SECTIONS 100.3 AND 100.4 OF THE REGULATIONS OF THE COMMISSIONER

· Separates the general education program and assessment requirements for elementary grades (pre-kindergarten-grade 4) and middle-level grades (grades 5-8), including the grade-by-grade testing requirements under No Child Left Behind.

· Sunsets the provision in current regulations that requires schools to retest fifth graders who scored at Level 1 on the grade 4 assessments beginning with the 2005-06 school year since it is no longer needed with implementation of grade-by-grade testing.

· Provides in regulation for grade-by-grade testing requirements under No Child Left Behind for pre-kindergarten to grade 4 and grades 5-8, including technical clean-up language relating to testing accommodations and State alternate assessments for students with disabilities.

· Identifies a core set of Design Principles that apply to all models, including employing teaching staff that are properly certified; aligning middle-level programs with the Regents Policy Statement on Middle-Level Education and the Department's Essential Elements of Standards-Focused Middle-Level Schools and Programs; requiring students who are at risk to receive timely and targeted academic intervention services; providing opportunities for students to take high school courses; and requiring all students to receive instruction in all 28 of the State's learning standards.

· Defines the three models (Models A, B and C (1&2)) and describes the eligibility criteria for each model; the application process; the school improvement planning requirements; and the criteria for approval of an application. It states that each school district shall conduct its middle-level education program in accordance with either Model A, Model B, or Model C. A district would submit an application for an individual school.

· Requires districts to submit with their applications for Model B and Model C a report from the shared decision-making team, or school leadership team in the case of New York City, that provides evidence that consultation took place at the district and building levels and that identifies the concerns expressed by constituents.

· Specifies the flexibility in programmatic requirements that will be allowed under Models B and C. Under Model B, approved applications will describe modifications in the prescribed time requirements for units of study in courses where there are no required State assessments. Under Model C1, districts may propose to do a full restructuring of the delivery of instruction to facilitate the attainment of the State intermediate learning standards. Under Model C2, districts may propose to do specific program enhancements in subject areas for which there are no specific State assessments.

· Limits approval of an application to five years and provides for reapplication for an additional five-year period.

· Clarifies that Regional Superintendents in New York City are responsible for developing applications for existing schools for submission to the Chancellor of the New York City Department of Education for approval and that applications for new schools may come from either the Regional Superintendent or the Chancellor. In all cases, the Chancellor on behalf of the district submits applications to the State Education Department.

· Requires new schools under Model C where public school choice is required to agree that a minimum of 20 percent of seats will be offered to students seeking transfer.

· Limits approval of Model C applications to 75 in the first year, 30 for restructuring the full education program (Model C1) and 45 for specified program enhancements (Model C2). The Regents will annually revisit this limit to determine if an adjustment is needed.

· Does not require a district proposing specific program enhancements (Model C2) to complete a self-study process, but the district must include in its application a description of the program enhancement, its relationship to student achievement, student interests, and/or student development, and a plan for evaluating the effectiveness and impact of the program enhancement on student learning and development.

· Specifies that the Department is responsible for approving applications, but provides for districts outside of the Big 5 to submit their applications for Model C2 to the District Superintendent of the BOCES to review and submit his/her recommendation with the application to the Department for approval.

· Reinstitutes section 80-5.12 of the Commissioner's Regulations for experiment in organizational change. This provision had sunset on February 1, 2004. This will provide flexibility in making teaching assignments for schools that propose such an experiment in the middle grades. Teachers affected would be required to pursue and complete a certification extension to teach at another grade level in a middle school within five years. Applications for a statement of continued eligibility would be made available for teachers who hold a permanent or professional 7-12 teaching certificate in English language arts, a language other than English, mathematics, biology, chemistry, earth science, physics, or social studies, and who had provided instruction for three out of the five years under a previously approved experimental middle school program. The approved statement will be valid for service in any school district.

· Provides that the Commissioner may rescind the approval of an application during its implementation period if the conditions/criteria established for approval are not being met.

· Provides that regulatory relief included in an approved application for Models B and C is contingent upon a district monitoring and publicly reporting progress on the implementation of a school improvement plan (where required); the Commissioner's acceptance of the measurable indicators and evidence of school change and other indicators of success, such as State-developed checklists of knowledge and skills in those areas where there are no required State assessments; the school's performance index; and the school district's compliance with the Design Principles.

· Allows the Commissioner to terminate approval of an application at any time during the implementation period if a district has failed to comply with the requirements for an approved application.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 101, 207, 208, 209, 210, 215, 305, 308, 309, 911, 3204 and 4403

1. Section 100.3 of the Regulations of the Commissioner of Education is amended, effective May 24, 2005, as follows:

§ 100.3 Program requirements for students in grades prekindergarten through [six] four.

(a) . . .

(b) Program requirements in grades one through [six] four. (1) Required subjects. During grades one through [six] four, all students shall receive instruction that is designed to facilitate their attainment of the [relevant] State elementary learning standards in:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(vi) . . .

(vii) . . .

(viii) . . .

(2) Required [academic tests] assessments. (i) Except as otherwise provided in [subparagraph (ii)] subparagraphs (ii) and (iii) of this paragraph, at the specified grade level, all students shall take the following tests, provided that [alternative testing procedures] testing accommodations may be used as provided for in section 100.2(g) of this Part in accordance with Department policy:

(a) [the pupil evaluation program tests in reading and mathematics in grade three through June 1998.] Beginning in January 1999, the English language arts elementary assessment and the mathematics elementary assessment shall be administered in grade four and, beginning in the 2005-2006 school year, the English language arts elementary assessments and the mathematics elementary assessment shall be administered in grades three and four; and

(b) [ the pupil evaluation program test in writing in grade five through June 1999;

(d) ] beginning in January 2000, the elementary science assessment shall be administered in grade four.

(ii) . . .

(iii) [Beginning September 1, 2000, fifth grade students who scored at Level 1 of the State designated performance levels on the English language arts elementary assessment and/or the mathematics elementary assessment administered in grade 4 shall receive at least one semester of academic intervention services and be retested no later than the completion of grade 5. Multiple sources of evaluation, including, but not limited to, a commercial test or other external test of demonstrated technical quality determined by the school district to be a valid and reliable means of evaluation the student's progress in achieving the elementary level State learning standards in English language arts and mathematics, shall be used to retest students in accordance with the district-adopted or district-approved procedure established pursuant to section 100.2(ee) of this Part. ] In accordance with their Individualized Education Programs, students with disabilities instructed in the alternate academic achievement standards defined in section 100.1(t)(2)(iv) of this Part shall be administered a State alternate assessment to measure their achievement.

2. Section 100.4 of the Regulations of the Commissioner of Education is amended, effective May 24, 2005, as follows:

§ 100.4 Program requirements for grades [seven and] five through eight.

(a) . . .

(b) Program requirements for students in grades five and six.

(1) Required subjects. During grades five and six, all students shall receive instruction that is designed to facilitate their attainment of the State intermediate learning standards in the seven general curriculum areas:

(i) mathematics, including arithmetic, science, and technology;

(ii) English language arts, including reading, writing, listening and speaking for purposes of information and understanding, literary response and expression, critical analysis and evaluation, and social interaction, with attention given to comprehension, vocabulary, word study, spelling, grammar, usage and punctuation;

(iii) social studies, including geography and United States history;

(iv) languages other than English, pursuant to section 100.2(d) of this Part;

(v) the arts, including visual arts, music, dance and theatre;

(vi) career development and occupational studies;

(vii) where student need is established, bilingual education and/or English as a second language; and

(viii) health education, physical education and family and consumer sciences.

(a) Instruction in health education shall be pursuant to section 135.3(b) of this Title.

(b) Instruction in physical education shall be pursuant to section 135.4(c)(2)(i) of this Title.

(2) Required assessments.

(i) Except as otherwise provided in subparagraphs (iv) and (v) of this paragraph, all students shall take the following assessments, provided that testing accommodations may be used as provided for in section 100.2(g) of this Part in accordance with Department policy:

(ii) beginning with the 2005-06 school year, English language arts and mathematics assessments shall be administered in grades five and six;

(iii) all students in grade five shall take the social studies elementary assessment;

(iv) students receiving a program of home instruction pursuant to section 100.10 of this Part may take, but shall not be required to take, the State assessments required of public school students;

(v) in accordance with their Individualized Education Programs, students with disabilities instructed in the alternate academic achievement standards defined in section 100.1(t)(2)(iv) of this Part shall be administered a State alternate assessment to measure their achievement.

(vi) beginning September 1, 2000 and continuing up to and including the 2004-2005 school year, fifth grade students who scored at Level 1 of the State designated performance levels on the English language arts elementary assessment and/or the mathematics elementary assessment administered in grade four shall receive at least one semester of academic intervention services and be retested no later than the completion of grade five. Multiple sources of evaluation, including, but not limited to, a commercial test or other external test of demonstrated technical quality determined by the school district to be a valid and reliable means of evaluating a student’s progress in achieving the elementary level State learning standards in English language arts and mathematics, shall be used to retest students in accordance with the district-adopted or district-approved procedure established pursuant to section 100.2(ee) of this Part.

(2) . . .

(3) The unit of study requirements for technology education and/or home and career skills included in paragraph (1) of this subdivision may be initiated in grade [six] five, provided that in public schools such subjects shall be taught by teachers certified in those areas.

(4) The unit of study requirements for languages other than English in this subdivision may be initiated in any grade prior to grade eight, pursuant to section 100.2(d)(2) of this Part, provided that in public schools such subject shall be taught by teachers certified in that area.

(i) To receive one unit of high school credit for languages other than English prior to grade nine, pursuant to section 100.2(d) of this Part, a student must take and pass the second language proficiency examination.

(5) Students who have been determined to need academic intervention services as set forth in section 100.2(ee)(2)(i) of this Part may have the unit of study requirements for one or more of their subjects reduced, provided that:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

[(5)] (6) A student may meet the required half unit of study in music specified in subparagraph (1)(ix) of this subdivision by participation in a school's band, chorus or orchestra, provided that such participation is consistent with the goals and objectives of the school's music program for grades seven and eight.

[(6)] (7) The half unit of study requirement for health education specified in subparagraph (1)(viii) of this subdivision may be provided in grade six, provided that in public schools such subject shall be taught by teachers certified in health education.

[(c)] (d) Grade eight acceleration for diploma credit.

(1) . . .

(2) Credit may be awarded for an accelerated course only when at least one of the following conditions has been met:

(i) . . .

(ii) the student passes the course and the associated State proficiency examination or Regents examination, where available. The credit must be accepted as a transfer credit by all registered New York State high [school] schools; or

(iii) . . .

(3) . . .

(4) . . .

[(d)] (e) Required assessments in grades seven and eight. Except as otherwise provided in [subdivision (e)] subdivisions (f) and (g) of this section, and except for students who have been admitted to a higher grade without completing the grade at which the assessment is administered, all students shall take the following assessments, provided that [alternative procedures] testing accommodations may be used as provided for in section 100.2 (g) of this Part [:] in accordance with Department policy.

(1) [Beginning with the 1998-99 school year, the Regents preliminary competency test in reading and the Regents preliminary competency test in writing shall no longer be required.] Beginning with school year 1998-99, the English language arts intermediate assessment shall be administered in grade eight. Beginning with the 2005-2006 school year, English language arts assessments shall be administered in grades seven and eight.

(2) Beginning with the 1998-99 school year, the mathematics intermediate assessment shall be administered in grade eight. Beginning with the 2005-2006 school year, mathematics assessments shall be administered in grades seven and eight.

(3) . . .

(4) . . .

(5) Such other assessments as the commissioner determines appropriate.

[(e)] (f) [Students instructed through home schooling may take, but shall not be required to take, the State intermediate assessments required of public school students] Students receiving home instruction pursuant to section 100.10 of this Part may take, but shall not be required to take, the State assessments required of public school students.

(g) In accordance with their Individualized Education Programs, students with disabilities instructed in the alternate academic achievement standards defined in section 100.1(t)(2)(iv) of this Part shall be administered a State alternate assessment to measure their achievement.

(h) Models for Middle-Level Education Programs.

(1) Definitions. As used in this subdivision:

(i) Middle-level education program means instruction in grades five through eight or any lesser combination of such grades, as determined by the school district, provided that such combination includes instruction in grade seven.

(ii) Model A means a middle-level education program that meets the requirements of this section and all other applicable sections of this Title.

(iii) Model B means a middle-level education program, approved pursuant to paragraph (2)(ii) of this subdivision, that strengthens the attainment of the State intermediate learning standards measured by required State assessments, provides effective academic intervention services, and ensures all students receive instruction in those standards areas where there are no required State assessments.

(iv) Model C means a middle-level education program, approved pursuant to paragraph (2)(iii) of this subdivision, that either: (1) restructures the delivery of instruction designed to facilitate the attainment of the State intermediate learning standards; or (2) enhances instruction related to one or more of the State intermediate learning standards for which there are no required State assessments. Within Model C, there may be either a restructuring of the full educational program (Model C#1) or specific program refinements (Model C#2).

(2) Each school district shall conduct its middle-level education program in accordance with either Model A, Model B or Model C, as follows:

(i) Model A.

(a) Eligibility. All school districts are eligible to select Model A.

(b) Application. No application is required. All schools not approved to operate under Models B or C shall operate under Model A.

(d) Compliance requirements. A Model A middle-level education program shall meet the requirements of this section and all other applicable sections of this Title, and shall also meet the following requirements:

(1) districts shall administer required middle grade State assessments in English language arts, mathematics, social studies and science;

(2) districts shall employ teaching staff that are properly certified to teach assigned subjects and classes;

(3) districts shall ensure that the middle-level program is aligned with the Regents Policy Statement on Middle-Level Education and the State Education Department's Essential Elements of Standards-Focused Middle-Level Schools and Programs;

(4) students who are at risk of not meeting the State learning standards shall receive academic intervention services in accordance with section 100.2(ee) of this Part;

(5) students shall receive instruction in all of the State learning standards, with instruction in English language arts, mathematics, social studies, science and physical education occurring each year in each of the middle grades;

(6) students shall be provided opportunities for taking high school courses on an accelerated basis in accordance with subdivision (d) of this section.

(ii) Model B.

(a) Eligibility. The following school districts are eligible to select Model B:

(1) a district proposing a program for a school or schools identified as a school requiring academic progress (SRAP) in year 3, 4 or 5, including but not limited to a school or schools identified for school improvement for three or more consecutive years under 20 U.S.C. section 6316(b), or a school or schools under registration review (SURR) pursuant to section 100.2(p) of this Part; or

(2) a district proposing a program for a newly formed school or schools, including but not limited to those formed in response to a mandate to redesign or restructure pursuant to section 100.2(p) of this Part.

(b) Application.

(1) The district shall submit to the commissioner for approval an application in a form and according to such timelines as prescribed by the commissioner, that includes proposed measurable indicators and evidence of school change and improvement aligned with the Regents Policy Statement on Middle-Level Education and the State Education Department's Essential Elements of Standards-Focused Middle-Level Schools and Programs.

(2) The application shall be approved by the superintendent of schools and the board of education prior to its submission to the commissioner. In the case of an application submitted by the City School District of the City of New York for an existing school, the application shall be developed by the regional superintendent, approved by the chancellor of the city school district, and submitted by the chancellor to the commissioner for approval. In the case of an application submitted by the City School District of the City of New York for a newly formed school, the application may be developed by either the regional superintendent or the chancellor of the City School District, and shall be approved and submitted by the chancellor of the city school district to the commissioner for approval.

(3) The District shall submit with its application a report from the district's shared decision-making team or, for the City School District of the City of New York, the district's school leadership team, that provides evidence that consultation took place at the district and building levels and that identifies the concerns expressed by constituents.

(c) Plan. Each district selecting Model B, regardless of its accountability status pursuant to section 100.2(p) of this Part, shall prepare a plan consistent with the requirements of section 100.2(p) of this Part, in a format as prescribed by the commissioner. The plan shall address the results of a State-developed, locally conducted self-study, shall conform to the design principles set forth in section 100.4(h)(2)(ii)(d) of this Part, and be submitted as part of the application.

(d) Compliance requirements. A Model B middle-level education program shall meet the requirements of this section and all other applicable sections of this Title, except that the prescribed time requirements for units of study in courses where there are no required State assessments as set forth in subdivision (c)(1) of this section shall be met subject to such modifications as set forth in the approved application and plan, and shall also meet the following design principles:

(1) districts shall administer required middle grade State assessments in English language arts, mathematics, social studies and science;

(2) districts shall employ teaching staff that are properly certified to teach assigned subjects and classes;

(4) students who are at risk of not meeting the State learning standards shall receive academic intervention services in accordance with section 100.2(ee) of this Part;

(6) students shall be provided opportunities for taking high school courses on an accelerated basis in accordance with subdivision (d) of this section.

(e) Approval.

(1) Approval of an application shall be based upon the commissioner's acceptance of the measurable indicators and evidence of school change and improvement as proposed in the application and plan.

(2) Approval shall be for a five-year implementation period. A district may reapply pursuant to this subparagraph for continued approval to operate the Model B program for one additional five-year period.

(3) The district shall monitor and publicly report, in a form and according to such timelines as prescribed by the commissioner, progress on the following factors:

(i) the implementation of the plan proposed in the application;

(ii) the measurable indicators and evidence of school change and improvement as proposed in the approved application, and other indicators of success, such as State-developed checklists of knowledge and skills in those areas where there are no required State assessments;

(iii) the school's performance indices; and

(iv) compliance with the design principles set forth in section 100.4(h)(2)(ii)(d)(1)-(6) of this Part.

(4) The commissioner may terminate approval at any time during the implementation period, including any approved continuations, upon a determination that the district has failed to comply with the requirements of its approved application and the requirements of section 100.4(h)(2)(ii)(d) of this Part.

(iii) Model C.

(a) Eligibility. The following school districts are eligible to select Model C: a district proposing a program for a newly formed, or an existing, school or schools, other than those schools described in section 100.4(h)(2)(ii)(a) of this Title.

(b) Application.

(1) The district shall submit to the commissioner for approval an application in a form and according to such timelines as prescribed by the commissioner, that includes proposed measurable indicators and evidence of school change and improvement aligned with the Regents Policy Statement on Middle-Level education and the State Education Department's Essential Elements of Standards-Focused Middle-Level Schools and Programs.

(2) The application shall be approved by the superintendent of schools and the board of education prior to its submission to the commissioner for approval, provided that an application for specified program enhancements (Model C#2) submitted by a school district, other than a city school district with 125,000 inhabitants or more, shall be approved by the superintendent of schools and the board of education, and submitted to the district superintendent of the supervisory district in which such school district is located for his or her recommendation, prior to submission of the application to the commissioner for approval. In the case of an application submitted by the City School District of the City of New York for an existing school, the application shall be developed by the regional superintendent, approved by the chancellor of the City School District, and submitted by the chancellor to the commissioner for approval. In the case of an application submitted by the City School District of the City of New York for a newly formed school, the application may be developed by either the regional superintendent or the chancellor of the City School District, and shall be approved and submitted by the chancellor of the City School District to the commissioner for approval.

(3) The district shall submit with its application a report from the district's shared decision-making team or, for the City School District of the City of New York, the district's school leadership team, that provides evidence that consultation took place at the district and building levels and that identifies the concerns expressed by constituents.

(4) In those districts where public school choice is required under section 120.3 of this Title, the district's application for each newly formed school must include an agreement that a minimum of 20% of seats shall be offered to students seeking transfer, consistent with State and federal law.

(5) Applications for no more than 75 schools for Model C shall be approved, of which no more than 30 schools shall be approved for restructuring the full education program (Model C#1) and no more than 45 schools shall be approved for specified program enhancements (Model C#2).

(1) A district selecting Model C and proposing to restructure the delivery of instruction designed to facilitate the attainment of the State intermediate learning standards shall prepare a plan that is in a format prescribed by the commissioner and, where applicable, that is consistent with the requirements of section 100.2(p) of this Part. The plan shall address the results of a State-developed, locally conducted self-study, shall conform to the design principles set forth in section 100.4(h)(2)(iii)(d) of this Part, and be submitted as part of the application.

(2) A district proposing specific program enhancements (Model C#2) shall not be required to complete the State-developed, locally conducted self-study but must include in its application a description of the program enhancement, its relationship to student achievement, student interests, and/or student development, and a plan for evaluating the effectiveness and impact of the program enhancement on student learning and development.

(d) Compliance requirements. A Model C middle-level education program shall meet the requirements of this section and all other applicable sections of this Title, subject to any modifications of such requirements as provided for in the district's approved application and plan, and shall also meet the following design principles:

(1) districts shall administer required middle grade State assessments in English language arts, mathematics, social studies and science;

(2) districts shall employ teaching staff that are properly certified to teach assigned subjects and classes;

(4) students who are at risk of not meeting the State learning standards shall receive academic intervention services in accordance with section 100.2(ee) of this Part;

(6) students shall be provided opportunities for taking high school courses on an accelerated basis in accordance with subdivision (d) of this section.

(e) Approval.

(1) Approval of an application shall be based upon the commissioner's acceptance of the measurable indicators and evidence of school change and improvement as proposed in the application and plan.

(2) Approval shall be for a five-year implementation period. A district may reapply pursuant to this subparagraph for continued approval to operate the Model C program for one additional five-year period.

(3) The district shall monitor and publicly report, in a form and according to such timelines as prescribed by the commissioner, progress on the following factors:

(i) the implementation of the plan proposed in the application;

(iii) the school's performance indices; and

(iv) compliance with the design principles set forth in section 100.4(h)(2)(iii)(d)(1)-(6) of this Part.

3. Section 80-5.12 of the Regulations of the Commissioner of Education is amended, effective May 24, 2005, as follows:

80-5.12 Experiment in organizational change. [(a)] For applications for the approval or for the renewal of approval of teaching assignments in connection with an experiment in organizational change, the requirements of [paragraphs (1) and (2)] subdivisions (a), (b), and (c) of this [subdivision] section shall apply.

[(1)] (a) Any school district which proposes an experiment concerned with organizational changes that alters the definition of the elementary, junior or senior high school may be granted approval of a five-year period to employ a certified teacher (or appropriately licensed teacher in the cities of New York and Buffalo) for any teaching assignment, within the scope of the experiment, for which the teacher is deemed, by the superintendent, or other legally authorized body, qualified by education and experience provided:

[(i)] (1) the proposed experiment is approved by the Board of Education upon the recommendation of the professional staff of the school district;

[(ii)] (2) the proposed experiment is approved by the Commissioner of Education; [and]

[(iii)] (3) the proposed experiment includes appropriate procedures for evaluation;

(4) the teacher meets the qualification requirements of section 120.6 of this Title, relating to the No Child Left Behind Act of 2001; and

(5) a school district may not continue the assignment of a teacher in any teaching assignment covered by an experiment in organizational change for more than five school years unless the teacher has obtained the teaching certificate or certificate extension appropriate to such assignment or the teacher meets the requirements of subdivision (c) of this section.

[(2)] (b) Permission to assign teachers in accordance with the terms of the experiment may be renewed for a five-year period on evidence, satisfactory to the commissioner, of instructional benefit to the [children] students.

[(b) The commissioner shall not accept applications for approval or for the renewal of approval of teaching assignments in connection with an experiment in organizational change, as prescribed in subdivision (a) of this section, submitted to the commissioner after February 1, 2004.]

(c) A person who holds a permanent or professional certificate in English language arts (7-12), language other than English (7-12), mathematics (7-12), biology (7-12), chemistry (7-12), earth science (7-12), physics (7-12), or social studies (7-12) and whose teaching assignment covered by an experiment in organizational change during three of the five years of an experiment approved by the Commissioner on or before February 1, 2004 is in the subject of the certificate held but is in grades 5-6, may be issued a statement of continued eligibility pursuant to which such person may continue to teach in such assignment without the extension prescribed in section 80-4.3 (b) of this Part to teach the subject in grades 5-6. In order for such person to be eligible for the statement of continuing eligibility, his or her experience in teaching the subject in grades 5-6 must have occurred on or after July 1, 1993. A statement of continued eligibility shall be limited to the specific permanent or professional certificate that was extended to authorize such service but shall be valid for service in any school district. Applications for the statement of continued eligibility must be filed with the department.

PROPOSED AMENDMENT OF SECTIONS 100.3, 100.4 AND 80.5-12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 208, 215, 305, 308, 309 and 4403, RELATING TO MIDDLE-LEVEL EDUCATION

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed amendment is necessary to implement policy adopted by the Board of Regents in February 2005.

Under existing regulations, middle-level schools (those with grades 5, 6, 7, and 8 or a lesser combination of these grades) have limited programmatic flexibility. This makes it difficult for low-performing schools to respond to the academic and personal needs of their students and for new or high-performing schools to develop new approaches to enhance their students’ education. The proposed amendment offers districts with low-performing schools and high-performing schools additional flexibility to develop programs that address their students’ academic and personal needs.

Under the proposed amendment, districts with low-performing schools will be allowed to propose a program that strengthens core academic subjects and effective academic intervention services, and provides all students with exploratory subjects that address the learning standards, are of high interest to students, and further reinforce core academic learning (Model B). The low-performing schools would receive regulatory relief from the prescribed time requirements for units of study in the exploratory courses in order to implement their proposed program. Under the proposed amendment, districts with new or high-performing schools will be allowed to propose new ideas for restructuring the full educational program (Model C#1) or specific program refinements (Model C#2) and be granted relief from programmatic regulatory requirements.

The proposed amendment offers school districts additional flexibility in meeting the State’s intermediate learning standards and in increasing student proficiency in English language arts and mathematics consistent with the No Child Left Behind federal legislation. With large numbers of middle grades students regularly not achieving proficiency (in 2003-04, 52% of grade 8 students did not achieve proficiency in English language arts and 42% of grade 8 students did not achieve proficiency in mathematics), districts, especially those with schools in which large numbers of students are not achieving proficiency, need additional flexibility to develop programs that target the academic core and strengthen their academic intervention services. Districts with high-performing schools also need additional flexibility to develop creative approaches to restructure the educational experience in the middle grades or to enhance specific aspects of the middle grades program in order to meet their students needs.

The proposed amendment also makes technical changes to align the Commissioner’s regulations with the State learning standards, clarifies testing requirements related to students with disabilities, and reauthorizes the experiment in school organization to provide additional flexibility to all schools.

Emergency action to adopt the proposed amendment in May 2005 will allow sufficient time for the State Education Department to distribute and publicize the Model B, C#1, and C#2 application materials and process, and provide eligible districts with sufficient time to develop and submit applications for implementation beginning in September 2005, and for the Department to review and act on the applications prior to the end of the 2004-05 school year. This schedule will give districts with approved applications time during the summer to complete their staffing assignments, school schedules, academic intervention programs and curriculum revisions. Without emergency action in May 2005, there will be insufficient time for the Department to distribute the application, for schools to complete the application, and for the Department to review and act on the application for implementation beginning in September 2005 which, in practical terms, means that districts will be unable to take advantage of the new flexibility in the proposed amendment until the 2006-07 school year.

Emergency action to adopt the proposed amendment is necessary for the preservation of the general welfare in order to immediately establish criteria for middle-level education program models, consistent with Regents policy, to ensure sufficient time for districts with eligible low-performing schools and eligible new or high-performing schools to prepare and submit Model B, C#1 or C#2 applications, for the Department to review and act on the applications, and for the districts to make the necessary programmatic adjustments to begin implementing their approved programs in the 2005-06 school year.

It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at the September 2005 meeting of the Board of Regents, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.