8 NYCRR Part 130 REGULATORY IMPACT STATEMENT 1. STATUTORY AUTHORITY Education Law §207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education. Education Law §215 authorizes the Commissioner to require schools and school districts to submit reports containing such information as the Commissioner shall prescribe. Education Law §305(1) empowers the Commissioner of Education to be the chief executive officer of the State system of education and the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Board of Regents. Education Law §305(2) authorizes the Commissioner to have general supervision over all schools subject to the Education Law. Education Law §3204(1) provides that minors required to attend upon instruction pursuant to the Compulsory Education Law may attend at a public school or elsewhere. Education Law §3204(2) requires, among other things, that instruction may be given only by a competent teacher, English shall be the language of instruction, and that instruction in nonpublic schools must be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools. Paragraph (ii) of that section requires the Commissioner to make final substantial equivalency determinations regarding (1) nonpublic elementary and middles schools that are non-profit corporations, have a bi-lingual program, and have an educational program that extends from no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five thirty p.m. for grades four through eight, on the majority of weekdays and (2) nonpublic high schools that are established for pupils in high school who have graduated from an elementary school that provides instruction as described in Education Law §3204(2), are a non-profit corporation, have a bi-lingual program, and have an educational program that extends from no later than nine a.m. until no earlier than six p.m. on the majority of weekdays. Education Law §3204(3) provides for required courses of study in the public schools and authorizes the State Education Department to alter such required subjects of instruction. Education Law §3205(1) requires each child of compulsory school age to attend upon full time day instruction. Education Law §3210(2) provides the amount and character of required attendance for nonpublic school students, with the exception that a child may be permitted to attend for a shorter school day and/or year if the instruction received has been approved by the local school authorities as being substantially equivalent in amount and quality to that required by the Compulsory Education Law. Education Law §3233 provides penalties for violations of the Compulsory Education Law. Education Law §3234 gives the Commissioner authority to supervise enforcement of the Compulsory Education Law by withholding public school moneys for certain failures of cities or districts to enforce the Compulsory Education Law. 2. LEGISLATIVE OBJECTIVES Consistent with the above statutory authority, the proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. 3. NEEDS AND BENEFITS: In New York State, the Compulsory Education Law requires children aged 6 to 16 (or 17) to attend “upon full time instruction” (Education Law §3205[1], [3]). The purpose of the Compulsory Education Law is to ensure that children receive instruction that will prepare them for their place in society. Since 1895, the Compulsory Education Law has required that, if a child of compulsory attendance age “attend[s] upon instruction elsewhere than at a public school, such instruction shall be at least substantially equivalent to the instruction given to children of like age at the public school of the city or district in which such child resides” (Education Law of 1894, ch. 671, §3). Despite various statutory amendments and reenactments, today, the substantial equivalency requirement has remained largely unchanged. Education Law §3204(2) currently provides that “Instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” Likewise, Education Law §3210(2) provides that a student who attends “elsewhere than at a public school . . . shall attend for at least as many hours, and within the hours specified therefor.” This provision allows for attendance “for a shorter school day or for a shorter school year or for both,” so long as the “school authorities” deem the instruction provided “as being substantially equivalent in amount and quality to that required by the provisions of [the Compulsory Education Law].” As noted above, substantial equivalence is determined by reference to the instruction “given to the children of like age at the public school of the city or district in which such child resides” (Education Law §§3210[2]); 3204[2]). The Education Law defines “school authorities” as the board of education or corresponding officers of a school district. (Education Law §2[12]). The Department has published guidance on this requirement for decades, which was neither controversial nor challenged. In 2015, parents, former students, and former teachers filed a complaint against the New York City Department of Education (“NYCDOE”), asserting that certain religious schools provided only limited secular education that did not meet the “substantial equivalence” standard mandated by state law. They also alleged that the schools failed to provide sufficient instruction in core content areas. Thereafter, NYCDOE commenced an investigation. The Department subsequently received inquiries and questions from both local school authorities (LSAs) and nonpublic schools relating to the Department’s guidance on substantial equivalence. At the December 2015 Board of Regents meeting, Department staff provided the P-12 Education Committee with an overview of nonpublic schools in New York State. This overview included a discussion of the constitutional right of parents to send their students to nonpublic schools, the Compulsory Education Law, and the obligation of LSAs to ensure that students in nonpublic schools receive substantially equivalent instruction. In April 2016, the State’s Enacted Budget included funding for the creation of a new State Office of Religious and Independent Schools (“SORIS”) within the Department, which would be responsible for providing guidance and assistance to the nonpublic school community. Based on the events described above and the volume of questions from the field, the Commissioner directed SORIS to review existing guidance related to substantial equivalency and provide recommendations to better assist the field in making these determinations. The Department then engaged in a consultative process for approximately two years to update the guidance as it applied to all public and nonpublic schools statewide. In April 2018, the Legislature amended the Education Law relating to the substantial equivalence determination for nonpublic schools that met certain criteria – namely, (1) they must be a non-profit corporation; (2) they must have a bilingual program; (3) elementary and middle schools must have an educational program that extends from no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five-thirty p.m. for grades four through eight on the majority of weekdays; and (4) secondary schools must have been established for pupils in high school who have graduated from an elementary school that provides instruction as described in Education Law §3204 and have an educational program that extends from no later than nine a.m. until no earlier than six p.m. on the majority of weekdays. For these schools, the amendment: (i) shifts ultimate responsibility for making the final substantial equivalence determination to the Commissioner of Education; and (ii) requires the Commissioner to consider, without limitation, additional enumerated factors in making the final substantial equivalence determination (see Education Law §3204[2][ii]-[iii], [v]). This statutory exception was included in the budget; as such, there is no Legislative history to guide the Department’s interpretation of its provisions. The Department issued updated substantial equivalency guidance on November 20, 2018. Staff began to provide training to both public and nonpublic school leaders regarding the content of the guidance and the expectations for the review process. Then, in March 2019, three groups representing nonpublic schools challenged the updated guidance in court. In April 2019, Albany County Supreme Court found that the guidance failed to adhere to the rulemaking process prescribed in the State Administrative Procedure Act (“SAPA”). In June 2019, the Department issued proposed regulations in response to the April 2019 ruling from the Court. Over 140,000 comments were received in response to the draft regulation. These comments were summarized for the Board in February 2020. The Board thereafter directed staff to engage with stakeholders before resubmitting a revised draft. Despite some inevitable delays caused by the COVID-19 pandemic, the Department continued the stakeholder engagement process. In fall 2020, the Department conducted a series of five online regional stakeholder engagement sessions. These included religious and independent school leaders and advocates, public school officials and their professional associations, scholars, and other advocates, as well as legislators and legislative staff. Another session included private school students, parents, and alumni in breakout rooms. In addition, Department staff conducted in-person conversations with religious communities that do not use the internet. Department staff also engaged in regular conversations on this topic with the Commissioner’s Advisory Council for Religious and Independent Schools. One of the concerns raised by both public and private school communities is the requirement that LSAs make substantial equivalency determinations. However, with the exception of nonpublic schools that fall within the criteria prescribed in the April 2018 amendment to Education Law §3204, this obligation is placed upon LSAs by law. Nevertheless, the proposed regulation balances this responsibility by creating pathways in which nonpublic schools may be deemed substantially equivalent absent a review, thereby alleviating some of this concern. Many private school stakeholders reported that, although nonpublic schools are not mandated to participate in the state’s accountability system, they nevertheless use various measures to monitor student performance. These indicators demonstrate that their students are progressing in core content areas and the broader curricula offered by religious and independent schools. The proposed rule incorporates this feedback by providing a variety of pathways for a nonpublic school to demonstrate that it is providing instruction in core content areas (science, math, social studies, and English/language arts) and to demonstrate that students are making progress in their use of the English language. These externally validated measures will provide evidence that students are making progress in core content areas and provide a streamlined process for many religious and independent schools. Additionally, private school communities noted that reviewers may lack understanding of the nonpublic culture and expressed concern that substantial equivalency requirements may conflict with religious beliefs. While the proposed rule focuses substantial equivalency reviews on core content areas and instruction specifically required by statute, it also requires that reviews be conducted in a manner that is sensitive and respectful of nonpublic school communities. This includes a focus on opportunities offered to nonpublic school students to acquire core skills and make academic progress. Nonpublic schools need not demonstrate perfect congruence between public and nonpublic school instruction. The Department believes that the proposed rule will enable nonpublic schools to comply with the Compulsory Education Law while also maintaining their unique culture and beliefs in the delivery of instruction. The proposed rule also contains numerous provisions to ensure compliance, such as ensuring that LSAs and nonpublic schools complete substantial equivalency reviews in a timely manner. Additionally, the proposed rule creates safeguards that substantial equivalency determinations are made in good faith. Determinations may be reviewed upon complaint or via an appeal to the Commissioner pursuant to Education Law §310. The Commissioner may also initiate a review. The proposed amendment adds a new Part 130 to the Commissioner’s regulations as follows: Section 130.1 defines the terms “competent teacher”, “substantial equivalency of instruction,” “local school authority,” “nonpublic school,” “registered school,” and “superintendent.” Section 130.2 requires LSAs to make substantial equivalency determinations for all nonpublic schools within their geographical boundaries, except for nonpublic schools that are deemed substantially equivalent pursuant to section 130.3 or nonpublic schools for which the Commissioner is required to make a substantial equivalency determination pursuant to Education Law §3204(2)(ii)-(iii). For schools that meet the statutory criteria for a Commissioner’s determination, LSAs must review such schools for substantial equivalency and forward a recommendation and supporting documentation to the Commissioner for his/her final determination. Section 130.3 allows various pathways for a nonpublic school to demonstrate that it provides substantially equivalent instruction. Specifically, it provides that a nonpublic school shall be deemed substantially equivalent if it annually delivers sufficient evidence to its LSA that it: • Is a state-supported school for the blind and deaf (4201 schools); is a state-operated school; is a state-approved private special education school (853 schools); • Is registered by the Board of Regents (grades 1 through 8 of a nonpublic school that has a registered high school program will also be deemed substantially equivalent by virtue of the school’s high school registration); • Is accredited by a Department-approved accreditation organization that meets certain prescribed criteria; • Has instruction approved by the United States government for instruction on a military base or service academy; • Participates in the international baccalaureate program; and/or • Regularly uses assessments approved by the Department that demonstrate student academic progress as they move from grade to grade and have a student participation rate equal or greater to the three-year, statewide average State assessment public school participation rate. Additionally, such section provides that where a nonpublic school is deemed substantially equivalent pursuant to this section, the Commissioner may request evidence submitted to the LSA. If the Commissioner determines that sufficient evidence has not been submitted, the Commissioner shall direct the LSA to conduct a review in accordance with section 130.6 or submit a recommendation to the Commissioner in accordance with section 130.8, as applicable. Section 130.4 of the proposed rule prescribes the timelines for substantial equivalency reviews, recommendations to the Commissioner, and determinations: • New nonpublic schools that open on or after the effective date of the proposed regulation must be reviewed within the first two years of when the nonpublic school commences instruction and every seven years thereafter; and • Existing nonpublic schools operating on the proposed regulation's effective date must be reviewed by the end of the 2024-2025 school year and every seven years thereafter. If the LSA does not make sufficient progress toward reviewing nonpublic schools by the end of the 2023-2024 school year, and thereafter, the Commissioner may withhold public money from the LSA consistent with Education Law §3234. Section 130.5 of the proposed rule sets forth procedures for substantial equivalency reviews. Prior to commencing a substantial equivalency review, the LSA, after consulting with the nonpublic school, shall determine whether the Commissioner is responsible for making the final determination pursuant to Education Law §3204(2)(ii) or (iii), or whether the LSA is responsible for making such final determination. The superintendent or his or her designee must review all nonpublic schools in the LSA’s geographic boundaries, including nonpublic schools that meet the criteria for a Commissioner’s determination, except for nonpublic schools deemed substantially equivalent pursuant to section 130.3. In conducting such reviews, the LSA must use the criteria outlined in the proposed regulation. For schools that meet the criteria for a Commissioner’s final determination, the LSA conducts the review using the appropriate criteria and makes a recommendation to the Commissioner for his or her final determination. Additionally, such section requires that all reviews shall include at least one site visit to the nonpublic school by the LSA. Section 130.6 of the proposed rule sets forth a procedure for LSAs to render substantial equivalency determination as follows: • Preliminary Determinations: If following its review, the superintendent or his or her designee determines that the nonpublic school has not sufficiently demonstrated the substantial equivalence of instruction, the LSA must (1) inform the nonpublic schools’ administrators of the preliminary determination and the reason(s) for the determination; (2) notify the Department; (3) collaboratively develop, within 60 days, a timeline and plan with the nonpublic school for attaining substantial equivalency in an amount of time that is reasonable given the reasons identified in the review, provided that such timeline may not exceed the end of the next academic year following the year in which the preliminary determination is made; and (4) continue services to the nonpublic school and students during such time period. No later than 60 days after the conclusion of that timeline, the LSA must render a final determination. • Final Determinations: o For school districts (other than the city school district of the City of New York) that have completed a review and preliminary determination, the superintendent or his or her designee must make a recommendation to the board of education (board) that a nonpublic school is deemed to be providing at least substantially equivalent instruction (a “positive” determination) or be deemed to be not providing at least substantially equivalent instruction (a “negative” determination). After notification to the nonpublic school, the LSA must vote on the superintendent’s or designee’s recommendation at a regularly scheduled board meeting. The nonpublic school shall be provided an opportunity to present additional materials and/or a written statement to the board prior to the board’s vote. o For the city school district of the City of New York, the Chancellor, after review and preliminary determination, shall render either a positive or negative substantial equivalency determination. • Procedure After Final Determination: o If the board renders a positive substantial equivalency determination, the LSA must provide written notification to the nonpublic school, the superintendent(s) of schools of each of the districts which have resident students enrolled in the nonpublic school, and the Department, which must post such determination on its website. o If the board renders a negative substantial equivalence determination:  The nonpublic school will no longer be deemed a school that provides compulsory education fulfilling the requirements of Article 65 of the Education Law.  The LSA must provide written notification to the nonpublic schools and provide a letter for the nonpublic school to distribute to the parents or persons in parental relationship to the students attending the nonpublic school and the superintendent(s) of schools of each district which has resident students enrolled in the nonpublic school advising them of such determination.  The board must provide a reasonable timeframe for parents or persons in parental relationship to enroll their children in a different appropriate educational setting, consistent with Education Law §3204.  The LSA must notify the Department of the negative determination and its reasons, therefore.  Services to the nonpublic school and students (e.g., textbooks, special education, transportation, etc.) must continue until the end of the reasonable timeframe.  Student records shall be managed consistent with section 104.2 of the Commissioner’s regulations. Section 130.7 of the proposed rule requires LSAs to report a list of all nonpublic schools within the LSA’s geographical boundaries by September 1, 2023 and each September 1 thereafter. Additionally, it requires LSAs to report the following information to the Department by December 1, 2023, and each December 1 thereafter: • A list of all nonpublic schools in the LSA’s boundaries that meet one of the substantial equivalency pathways prescribed in section 130.3; • A list of all nonpublic schools in the LSA’s boundaries that do not meet one of the substantial equivalency pathways prescribed in section 130.3 and are subject to a Commissioner’s final determination; and • A list of the remaining nonpublic schools in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination. This section also requires that by December 1, 2024, and each December 1 thereafter, attest to whether they have or have not yet made final substantial equivalency determinations and recommendations for each nonpublic school in their geographical area and the date on which such determination or recommendation was made or is anticipated to be made. Section 130.8 of the proposed rule includes procedures for the Commissioner’s determination of substantial equivalency. For nonpublic schools for which the Commissioner is required to make a final determination, the LSA must conduct a review in accordance with the regulation and forward its recommendation regarding substantial equivalency and all relevant documentation to support its recommendation to the Commissioner. The Commissioner will review the materials and recommendation submitted by the LSA. The Commissioner will provide the nonpublic school with an opportunity to present additional relevant materials and/or a written statement prior to rendering a determination. The proposed regulation sets forth procedures for when a school subject to a Commissioner’s determination appears not to be substantially equivalent and for when the Commissioner renders a positive or negative substantial equivalency determination. Such procedures are similar to those described above for LSAs to follow when making a final determination. Section 130.9 of the proposed rule provides that, when reviewing a nonpublic school for substantial equivalency, an LSA and the Commissioner, when he or she is responsible for making the final determination, must consider the following criteria: • Instruction is given only by a competent teacher; • English is the language of instruction for common branch subjects; • Students who have limited English proficiency are provided with instructional programs enabling them to make progress toward English language proficiency; • Accreditation materials from the last five years; • The instructional program in the nonpublic school as a whole incorporates instruction in mathematics, science, English language arts, and social studies that is substantially equivalent to such instruction required to be provided in public schools pursuant to Education Law §3204(3); • Similar courses of instruction to the course of instruction required by law in public schools in: patriotism and citizenship; history, meaning, significance and effect of the provisions of the Constitution of the United States and the amendments thereto, the Declaration of Independence, the Constitution of the State of New York and the amendments thereto; instruction in New York State history and civics; instruction in physical education and kindred subjects; instruction in health education regarding alcohol, drugs, and tobacco abuse; instruction in highway safety and traffic regulation; instruction in fire drills and in fire and arson prevention, injury prevention, and life safety education; and instruction in hands-only cardiopulmonary resuscitation and the use of an automated external defibrillator; and • For nonpublic schools meeting the criteria for Commissioner’s final substantial equivalency determinations in Education Law §3204(2)(ii)-(iii), the criteria enumerated in such statute. Section 130.10 of the proposed rule provides that reviews of nonpublic schools shall be: conducted in a manner that is respectful to the diversity of the nonpublic school community; based on objective criteria focused on whether students in the nonpublic school receive instruction that is at least substantially equivalent to instruction provided in public schools; cognizant of the rights of parents or persons in a parental relationship to choose among religious and independent schools; informed by and respectful of the cultural and religious beliefs and educational philosophy that may drive the curriculum in nonpublic schools and be integrated with academic content in the delivery of instruction. Section 130.11 of the proposed rule prescribes complaint procedures. Such section provides that the Commissioner, or his or her designee, may direct an LSA to investigate a nonpublic school if the Commissioner receives a complaint regarding the substantial equivalency of instruction at such nonpublic school, or if the Commissioner otherwise has reasonable suspicion to doubt the substantial equivalency of instruction at a nonpublic school. If an LSA does not investigate and decide such complaint, the Commissioner may withhold public money from such LSA consistent with Education Law §3234 and section 130.14(b). Section 130.12 of the proposed rule provides that persons considering themselves aggrieved by an LSA’s substantial equivalency determination may file an appeal to the Commissioner within 30 days of the LSA’s decision pursuant to Education Law §310 and section 275.16 of the Commissioner’s regulations. The Commissioner may stay such determination pending a final determination of such appeal pursuant to Education Law §311 and section 276.1 of the Commissioner’s regulations. Section 130.13 of the proposed rule provides that the Commissioner may request the records and/or documentation an LSA used to make a final substantial equivalency determination, and the LSA must provide them to the Commissioner within 10 days of any such request. With respect to any nonpublic school against which a penalty pursuant to section 130.14(c) is being considered, the Commissioner may request that the LSA provide records and/or documentation that a nonpublic school has intentionally prohibited an LSA from conducting a review and records and/or documentation of the LSA’s good faith efforts to review such nonpublic school. The LSA must provide such records and/or documentation to the Commissioner within 10 days of such request. If the Commissioner’s review of such records and/or documentation gives rise to a substantial question as to whether the LSA’s positive or negative substantial equivalency determination is or is not supported, or whether a penalty under section 130.14(c) is warranted, the Commissioner may initiate a review of whether the procedures in this Part were followed, whether the criteria in section 130.9 have or have not been satisfied, or whether a penalty against such non-public school pursuant to section 130.14 is warranted. This section (130.13) prescribes procedures for such reviews and requires a written decision on the issues under review. Section 130.14 of the proposed rule prescribes penalties and enforcement for noncompliance, which include the penalties prescribed in Education Law §§3233 and 3234. Additionally, subdivision (c) of section 130.14 provides that if, after review, the Commissioner determines that a nonpublic school has intentionally prohibited an LSA from conducting a substantial equivalency review, the Commissioner may issue a written decision making a negative substantial equivalency determination in accordance with section 130.13. Section 130.15 of the proposed rule includes a severability provision. 4. COSTS: (a) Costs to State government: The proposed regulation does not impose additional costs on the State beyond what is already required by law. (b) Costs to local government: The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The procedures and timelines set forth in the regulation for substantial equivalency reviews may necessitate the hiring of additional staff to comply with such. However, the Department believes that many LSAs will be able to utilize existing staff to fulfill such requirements and the Department developed a CO-SER by which an LSA may engage with a board of cooperative educational services to conduct substantial equivalency reviews, which may be used to offset any costs incurred by local governments to fulfill their statutory obligations under Education Law §§3204, 3205, and 3210. Moreover, the proposed regulation provides pathways for nonpublic schools to demonstrate that they are providing substantially equivalent instruction without LSA reviews. LSAs do not have to conduct reviews for nonpublic schools that are deemed to be providing substantially equivalent instruction through one of these pathways, further offsetting costs incurred by LSAs. The Department is unable to estimate the exact cost of complying with the procedures and timelines set forth in the regulation for substantial equivalency reviews as LSAs have varying amounts of nonpublic schools within their geographical boundaries and will have varying numbers of nonpublic schools that will meet the requirements of a pathway rather than requiring a review. The Department expects that any annual reporting requirements in the regulation would be necessary for the LSA to fulfill existing statutory obligations. (c) Costs to private regulated parties: Where a nonpublic school is preliminarily determined to not be providing instruction that is at least substantially equivalent to instruction provided at the public schools, such nonpublic school may need to expend resources necessary to ensure compliance with providing substantially equivalent instruction. This may include, but is not limited to, expenses related to hiring new staff, developing curriculum, and professional development. The Department is unable to estimate the exact cost of such expenses as nonpublic schools will have varying needs in relation to ensuring that their instruction is in compliance with statute and the proposed rule. (d) Costs to regulating agency for implementation and continued administration of this rule: Pursuant to Education Law §3204(2)(v) the Commissioner is responsible for making the substantial equivalency of instruction determinations for nonpublic schools that meet the requirements of Education Law §3204(2)(ii) or (iii) and, for other schools, a determination may be appealed to the Commissioner under Education Law §310. The Department anticipates the need to hire additional staff and expend additional resources to fulfill these statutory requirements, through the processes outlined in the proposed rule. 5. LOCAL GOVERNMENT MANDATES: The proposed rule is necessary to direct LSAs to make determinations and recommendations to the Commissioner, as applicable, regarding the substantial equivalency of instruction in nonpublic schools in accordance with Education Law §§3204, 3205, and 3210. The proposed regulation: • prescribes a timeline and procedure for substantial equivalency reviews and determinations; • requires an LSA to consider the listed criteria when making a substantial equivalency determination or recommendation to the Commissioner; and • imposes an annual reporting requirement on LSAs. See Needs and Benefits and Paperwork sections for more information. 6. PAPERWORK The proposed rule requires LSAs to send recommendations and supporting documents to the Commissioner regarding the substantial equivalency of instruction at nonpublic schools that meet the criteria in Education Law §3204(2). It also requires LSAs to document and retain findings of substantial equivalence and non-substantial equivalence and provide written confirmation to the nonpublic school, the superintendent(s) of schools of each of the districts which have resident students enrolled in the nonpublic school, and the Department. The proposed rule requires LSAs to report a list of all nonpublic schools within the LSA’s geographical boundaries by September 1, 2023 and each September 1 thereafter. Additionally, it requires LSAs to report the following information to the Department by December 1, 2023, and each December 1 thereafter: • A list of all nonpublic schools in the LSA’s boundaries that meet one of the substantial equivalency pathways prescribed in section 130.3 of the proposed rule; • A list of all nonpublic schools in the LSA’s boundaries that do not meet one of the substantial equivalency pathways prescribed in section 130.3 of the proposed rule and are subject to a Commissioner’s final determination; and • A list of the remaining nonpublic schools in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination. This proposed rule also requires that by December 1, 2024, and each December 1 thereafter, attest to whether they have or have not yet made final substantial equivalency determinations and recommendations for each nonpublic school in their geographical area and the date on which such determination or recommendation was made or is anticipated to be made. The proposed rule requires nonpublic schools to maintain a complete and accurate archive copy that includes detailed records of substantial equivalency determinations in the same manner as required for pupil academic records pursuant to 8 NYCRR 104.2. 7. DUPLICATION: The proposed rule does not duplicate existing State or Federal regulations. 8. ALTERNATIVES: The proposed rule is necessary to ensure that students who attend nonpublic schools receive substantially equivalent instruction to that provided in the public schools pursuant to Education Law §3204. The Department consulted with stakeholders to consider the proposed rule as well as alternative proposals. Specifically, the Department engaged in a series of five online regional stakeholder engagement sessions. These included religious and independent school leaders and advocates, public school officials and their professional associations, scholars, and other advocates, as well as legislators and legislative staff. Another session included private school students, parents, and alumni in breakout rooms. In addition, Department staff conducted in-person conversations with religious communities that do not use the internet. Department staff also engaged in regular conversations on this topic with the Commissioner’s Advisory Council for Religious and Independent Schools. Thus, many alternatives were considered in the development of the proposed regulation. One of the concerns raised by both public and private school communities is the requirement that LSAs make substantial equivalency determinations. However, with the exception of nonpublic schools that fall within the criteria prescribed in the April 2018 amendment to Education Law §3240, this obligation is placed upon LSAs by law. Nevertheless, the proposed regulation balances this responsibility by creating pathways in which nonpublic schools may be deemed substantially equivalent absent a review, thereby alleviating some of this burden. Additionally, private school communities noted that reviewers may lack understanding of the nonpublic culture and expressed concern that substantial equivalency requirements may conflict with religious beliefs. While the proposed rule focuses substantial equivalency reviews on core content areas and instruction specifically required by statute, it also requires that reviews be conducted in a manner that is sensitive and respectful of nonpublic school communities. This includes a focus on opportunities offered to nonpublic school students to acquire core skills and make academic progress. Nonpublic schools need not demonstrate perfect congruence between public and nonpublic school instruction. The Department believes that the proposed rule will enable nonpublic schools to comply with the Compulsory Education Law while also maintaining their unique culture and beliefs in the delivery of instruction. 9. FEDERAL STANDARDS There are no related Federal standards. 10. COMPLIANCE SCHEDULE: The proposed rule requires that substantial equivalency of instruction determinations and recommendations be completed as follows: • New nonpublic schools that open on or after the effective date of the proposed regulation must be reviewed within the first two years of when the nonpublic school commences instruction and every seven years thereafter; and • Existing nonpublic schools operating on the proposed regulation's effective date must be reviewed by the end of the 2024-2025 school year and every seven years thereafter. Additionally, the proposed rule requires LSAs to report a list of all nonpublic schools within the LSA’s geographical boundaries by September 1, 2023 and each September 1 thereafter. It also requires LSAs to report the following information to the Department by December 1, 2023, and each December 1 thereafter: • A list of all nonpublic schools in the LSA’s boundaries that meet one of the substantial equivalency pathways prescribed in section 130.3; • A list of all nonpublic schools in the LSA’s boundaries that do not meet one of the substantial equivalency pathways prescribed in section 130.3 and are subject to a Commissioner’s final determination; and • A list of the remaining nonpublic schools in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination. Finally, the proposed rule requires that by December 1, 2024, and each December 1 thereafter, LSAs shall attest to whether they have or have not yet made final substantial equivalency determinations and recommendations for each nonpublic school in their geographical area and the date on which such determination or recommendation was made or is anticipated to be made. It is anticipated that regulated parties will be able to comply with the proposed rule within such timeframes.