8 NYCRR Part 130
REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES AND LOCAL GOVERNMENT
(a) Small businesses:
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.
Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
(b) 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.
1. EFFECT OF RULE:
The proposed rule applies to each of the 731 public school districts in the State.
2. COMPLIANCE REQUIREMENTS:
The proposed rule directs 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 sets forth a timeline and procedure for substantial equivalency reviews and determinations and requires LSAs to consider the listed criteria when making a substantial equivalency determination or recommendation to the Commissioner. The proposed regulation also imposes an annual reporting requirement on LSAs.
Specifically, 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.
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 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) therefore; (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 that a nonpublic school is deemed to be providing at least substantially equivalent instruction or be deemed to be not providing at least substantially equivalent instruction. After notification to the nonpublic school, the LSA must vote on the recommendation at a regularly scheduled board meeting.
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.
o If the board renders a negative substantial equivalence determination:
 The nonpublic school will no longer be deemed a school that fulfills the requirements of Article 65 of the Education Law.
 The LSA must provide written notification to the nonpublic school 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.
 The board must provide a reasonable timeframe for parents or persons in parental relationship to enroll their children in a different appropriate educational setting.
 The LSA must notify the Department of the negative determination and its reasons, therefore.
 Services to the nonpublic school and students must continue until the end of the reasonable timeframe.
 Student records shall be managed consistent with section 104.2 of the Commissioner’s regulations.
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 and supporting documentation regarding substantial equivalency to the Commissioner.
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.
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;
• A list of all nonpublic schools in the LSA’s boundaries that do not meet one of the substantial equivalency pathways 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.
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.
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.
3. PROFESSIONAL SERVICES:
The proposed amendment does not require any additional professional service requirement on local governments.
4. COMPLIANCE COSTS:
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.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the “Compliance Costs” section above.
6. MINIMIZING ADVERSE IMPACT:
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.
7. LOCAL GOVERNMENT PARTICIPATION:
The Department engaged stakeholders in the development of the proposed regulation as described in the minimizing adverse impacts section. Additionally, Comments on the proposed rule have been solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.