REGULATORY IMPACT STATEMENT
1.STATUTORY AUTHORITY:
Education Law §101 continues existence of Education Department, with Board of Regents as its head, and authorizes Regents to appoint Commissioner of Education as Department's Chief Administrative Officer, which is charged with general management and supervision of all public schools and educational work of State.
Educaiton Law §112(1) authorizes Commissioner to require schools and school districts to facilitate the prompt enrollment of children who are released or conditionally released from residential facilities.
Education Law §207 empowers Regents and Commissioner to adopt rules and regulations to carry out State education laws and functions and duties conferred on the Department.
Education Law §210 authorizes Regents to register domestic and foreign institutions in terms of State standards, and fix the value of degrees, diplomas and certificates issued by institutions of other states or countries and presented for entrance to schools, colleges and professions in the State.
Education Law §215 authorizes Commissioner to require schools and school districts to submit reports containing such information as Commissioner shall prescribe.
Education Law §305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents.
Educaiton Law §305(20) provides Commissioner shall have such further powers and duties as charged by the Regents.
Education Law §309 charges Commissioner with general supervision of boards of education and their management and conduct of all departments of instruction.
Education Law §3713(1) and (2) authorize State and school districts to accept federal law making appropriations for educational purposes and authorize Commissioner to cooperate with federal agencies to implement such law.
The Elementary and Secondary Education Act (ESEA) of 1965, as amended by the Every Student Succeeds Act (ESSA) of 2015, 20 U.S.C. sections 6301 et seq.(Public Law 114-95, 129 STAT.1802).
2. LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the above statutory authority and is necessary to align the Commissioner’s regulations with the approved 2021-2022 ESSA Accountability State Plan Addendum.
3. NEEDS AND BENEFITS:
In June 2021, the United States Department of Education (USDE) approved the Department’s application for a one-year waiver from provisions of the Elementary and Secondary Education Act (ESEA), as recently amended by the Every Student Succeeds Act (ESSA), pertaining to school and district accountability determinations due to the ongoing impact of the COVID-19 crisis.
On December 22, 2021, due to the continuing challenges faced by schools and districts due to the COVID-19 pandemic, the Department submitted another one-year accountability waiver request to USDE that would have allowed the Department to not use 2021–2022 school year results to newly identify schools for Comprehensive Support and Improvement (CSI) and schools for Targeted Support and Improvement (TSI). On December 30, 2021, USDE denied the Department’s application for a one-year waiver and informed the Department that it must make new identifications for CSI, Additional Targeted Support and Improvement (ATSI), and TSI using 2021–2022 school year results.
However, USDE has been accepting requests to modify approved ESEA consolidated State plans based on results from the 2021–2022 school year. To amend accountability determinations based on results from the 2021–2022 school year and school identifications and status exits in fall 2022, states could submit to USDE a “2021–2022 Template for Addendum to the ESEA Consolidated State Plan due to the COVID-19 National Emergency” (ESSA Accountability State Plan Addendum). In response to USDE guidance and statutory requirements, the Department consulted with assessment experts, educational leaders, and stakeholders, and performed extensive modeling to develop an ESSA Accountability State Plan Addendum that was submitted to USDE on August 29, 2022. On September 26, 2022, USDE approved amendments to the New York State Consolidated State Plan under the ESEA for the 2021–2022 school year.
To align with the approved state plan addendum and with provisions related to the restart of the accountability system, the Department is proposing emergency regulatory amendments as follows:
Accountability:
• Section 100.21 of the Commissioner’s regulations is amended to provide that the Commissioner shall conduct the review of school and district performance for the 2022–2023 school year based on 2021–2022 school year results using modified procedures as specified in the new subdivision (n) added to this section. The Commissioner may also, upon finding of good cause, modify from the 2019–2020 through 2023 –2024 school years any timelines pertaining to notifications, plans, reports, or implementation of activities required by this section.
• New subdivision (n) of section 100.21 of the Commissioner’s regulations describes the modified procedures for the review of school and district performance for the 2022–2023 school year using 2021–2022 school year results as follows:
o For all indicators except for determining the progress of English language learners towards English Language Proficiency (ELP) and Graduation Rate, accountability determinations will be based on 2021–2022 school year results only. Prior year data will not be used to make determinations. For the ELP indicator, a student’s results in the 2021–2022 school year on the New York State English as a Second Language Achievement Test (NYSESLAT) will be compared to their NYSESLAT results from prior years. The Graduation Rate indicator will be based on lagged 2020-2021 Graduation Rates so that students who graduated in August 2021 can also be included in the indicator.
o The student growth in English language arts (ELA) and mathematics; academic progress; and College, Career, and Civic Readiness indicators, which require the use of prior year data, will not be used to assign accountability levels and will not be used to make accountability determinations based on 2021–2022 school year results.
o In order to use results from the 2021–2022 school year only, accountability levels for the Graduation Rate and Chronic Absenteeism indicator will be assigned based on percentile rank rather than performance in relation to state goals and Measures of Interim Progress (MIPs).
o A new high school Core Subject Performance Index based only on those students who have participated in Regents Examinations, Department-approved alternative assessments, and the New York State Alternate Assessment (NYSAA) will be used. This is intended to take into account that many students have received exemptions from graduation requirements.
o The accountability measures for elementary and middle schools will be Academic Achievement in ELA, mathematics, and science; Chronic Absenteeism; and progress towards and acquisition of English Language Proficiency by English language learners. At the high school level, the accountability measures will be Academic Achievement in ELA, mathematics, science and social studies; unweighted average of 4-, 5- and 6-year Graduation Rates; Chronic Absenteeism; and progress towards and acquisition of English Language Proficiency by English language learners.
o Academic Achievement at the elementary/middle and high school levels will be measured based on:
 the federally mandated methodology in which the denominator is the greater of the number of tested students or 95% of those students (i.e., Weighted Average Achievement Index) for elementary/middle schools.
 the count of the “all students” subgroup in the accountability cohort for high schools (i.e., high school Weighted Average Achievement Index).
 at both the elementary/middle and high school levels the results from only those students who participated in State assessments (i.e., the Core Subject Performance Index).
o The “scenario tables” used to identify schools for CSI, ATSI, and TSI have been modified. New York State is still required to identify a minimum of 5% of the State’s schools that receive Title I funds for CSI. For accountability determinations, only subgroups that were identified for Potential Targeted Support and Improvement (PTSI) based on 2018-2019 school year results will be eligible to be newly identified for TSI using 2021-2022 school year results. The revised scenario tables are presented below:
Elementary and Middle School Scenario Table

Scenarios Weighted Core ELP Chronic Absenteeism
1 Both Level 1 Any Level (None, 1-4)

2 Level 2 Level 1 Both NOT Level 3 or 4
3 Level 1 None Both NOT Level 3 or 4
4 Level 1 Level 2 Both NOT Level 3 or 4
5 Level 3 Level 1 Both NOT Level 3 or 4
6 Level 1 Level 3 Both NOT Level 3 or 4

High School Scenario Table

Scenarios Weighted Core Grad Rate ELP Chronic Absenteeism
1 Both Level 1 Level 1 Any Level (None, 1-4)
2 Level 2 Level 1 Level 1 Both Not Level 3 or 4
3 Level 1 None Level 1 Both Not Level 3 or 4
4 Level 1 Level 2 Level 1 Both Not Level 3 or 4
5 Both Level 1 Level 2 Both Not Level 3 or 4
6 Level 1 Level 2 Level 2 Both Not Level 3 or 4
7 Level 2 Level 1 Level 2 Both Not Level 3 or 4

o Schools previously identified for CSI that are not identified for CSI using the revised identification criteria and meet the modified exit criteria may exit identification status. Schools previously identified for ATSI that are not identified using the revised TSI identification criteria and meet modified ATSI exit criteria may exit identification status. The modified exit criteria are as follows:
 Weighted Average Achievement Index or Core Subject Performance Index is higher than at the time of identification (2017–2018 school year).
 Graduation Rate (unweighted average of 4-,5-, and 6-year graduation rates) is higher than at the time of identification (2017–2018 school year).
o Schools previously identified for TSI that do not meet the revised TSI identification criteria may exit identification status.
o Districts that have one of more schools identified for CSI, ATSI, or TSI will continue to be identified as Target Districts. Districts that had been identified as Target Districts solely for the districtwide performance of accountability groups will be removed from that designation. Districts that have subgroups at the district level that meet the criteria for identification for CSI and/or TSI based on 2021–2022 school year results will become Potential Target Districts. If the district has a subgroup that meets the criteria for identification for a second consecutive year based on 2022–2023 school year results, the district will become a Target District for districtwide performance.
• A new subdivision (o) is added to section 100.21 of the Commissioner’s regulations to modify the following definitions to align with the definitions under the ESEA: “CSI School(s)” and “school(s) identified as CSI” to “school(s) identified for Comprehensive Support and Improvement (or CSI)”; “ATSI school(s)” and “school(s) identified as ATSI” to “school(s) identified for Additional Targeted Support and Improvement (or ATSI)”; “TSI School(s)” and “school(s) identified as TSI” to “school(s) identified for Targeted Support and Improvement (or TSI)”; and Good Standing School(s) and schools identified as Good Standing shall hereafter be referred to in this Part as “school(s) identified for Local Support and Improvement (or LSI).”
Receivership:
• Section 100.19 of the Commissioner’s regulations is amended to provide that: (1) the Commissioner shall not use 2021–2022 school year results to newly identify any schools as struggling or place any schools under independent receivership for the 2022–2023 school year; and (2) all schools that operated under a school district superintendent receiver in the 2021–2022 school year shall continue to operate under a school district superintendent receiver in the 2022–2023 school year. Consistent with current regulations, schools that are removed from CSI status based on 2021–2022 school year data shall be removed from receivership at the end of the 2022–2023 school year.
4. COSTS:
Cost to the State: The proposed rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
Costs to local government: The rule does not generally impose any new costs beyond those consistent with the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802).
Cost to private regulated parties: None.
Cost to regulating agency for implementation and continued administration of this rule: None.
5. LOCAL GOVERNMENT MANDATES:
Due to the COVID-19 pandemic USDE has been accepting requests to modify approved ESEA consolidated State plans based on results from the 2021–2022 school year. To amend accountability determinations based on results from the 2021–2022 school year and school identifications and status exits in fall 2022, states could submit to USDE a “2021–2022 Template for Addendum to the ESEA Consolidated State Plan due to the COVID-19 National Emergency” (ESSA Accountability State Plan Addendum). In response to USDE guidance and statutory requirements, the Department consulted with assessment experts, educational leaders, and stakeholders, and performed extensive modeling to develop an ESSA Accountability State Plan Addendum that was submitted to USDE on August 29, 2022. On September 26, 2022, USDE approved amendments to the New York State Consolidated State Plan under the ESEA for the 2021–2022 school year. The rule is necessary to align the Commissioner’s regulations with the approved 2021-2022 ESSA Accountability State Plan Addendum. See the response to Question #3, Needs and Benefits.
6.PAPERWORK:
The proposed rule generally contains paperwork requirements consistent with those in existing regulations and does not generally impose any new paperwork requirements beyond those consistent with the above statutory authority and the provisions of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301 et seq. (Public Law 114-95, 129 STAT. 1802). For further information please see the above response to Question #3, Needs and Benefits.
7.DUPLICATION:
The rule does not duplicate existing State or federal regulations.
8.ALTERNATIVES:
The proposed rule is necessary to align the Commissioner’s regulations with the approved 2021-2022 ESSA Accountability State Plan Addendum. Therefore, no alternatives were considered.
9.FEDERAL STANDARDS:
The rule is necessary to necessary to align the Commissioner’s regulations with the approved 2021-2022 ESSA Accountability State Plan Addendum. See the response to Question #5, Local Government Mandates.

10.COMPLIANCE SCHEDULE:
The proposed amendment will become effective as an emergency rule on October 4, 2022. It is anticipated that the proposed amendment will be presented for permanent adoption at the February 2023 Regents meeting. Because the emergency action will expire before the February 2023 Regents meeting, it is anticipated that an additional emergency action will be presented for adoption at the December 2022 meeting. If adopted at the February 2023 meeting, the proposed rule will become effective as a permanent rule on March 1, 2023. It is anticipated that parties will be able to timely implement the rule’s requirements beginning with its effective date.