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

TO:

P-12 Education Committee

FROM:

Jhone M. Ebert

SUBJECT:

Proposed Emergency Adoption of Amendments to
Sections 100.2(ff), 100.2(m), 100.18, 100.19, and Part 120
of the Commissioner’s Regulations and the Addition of a
New Section 100.21 of the Commissioner’s Regulations
Relating to the Implementation of the State’s Approved
Every Student Succeeds Act (ESSA) Plan

DATE:

September 12, 2018

AUTHORIZATION(S):

SUMMARY
Issue for Decision
Should the Board of Regents adopt, as a second emergency action, the proposed
amendments to §§100.2(ff), 100.2(m), 100.18, 100.19 and Part 120 of the
Commissioner’s Regulations and the new §100.21 of the Commissioner’s Regulations to
implement New York State’s Every Student Succeeds Act (ESSA) plan that was approved
by the United States Department of Education (USDE) in January 2018?
Reason(s) for Consideration
Amendments and additions to Commissioner’s Regulations are necessary to
implement New York’s USDE-approved ESSA plan and to comply 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. §§6301 et seq. (Public Law 114-95, 129 STAT. 1802).

P-12 (A) 6 - REVISED

 Proposed Handling
The proposed amendment is presented to the P-12 Education Committee for
recommendation to the Full Board for adoption as an emergency rule at the September
2018 meeting of the Board of Regents. A copy of the proposed rule and a statement of
facts and circumstances justifying the emergency are included as Attachments B and C,
respectively.
Procedural History
At its April 2018 meeting, the Board of Regents was presented with a detailed
summary of the proposed amendment and the Board of Regents voted to authorize
Department staff to publish the proposed amendment in the State Register for the 60-day
public comment period so that the Department had an opportunity to receive as much
public comment as possible before adoption as an emergency rule for the 2018-2019
school year, as required under ESSA. A Notice of Proposed Rulemaking was published
in the State Register on May 9, 2018.
At its June 2018 meeting, the Board of Regents was presented with the draft
regulations and amendments, with proposed revisions based upon the public comment
received from the date of publication of the regulation in the State Register (May 9)
through June 4, 2018. The Department’s responses to the public comment received from
May 9 through June 4 was included in the June Board of Regents item, found at
http://www.regents.nysed.gov/common/regents/files/618p12a5.pdf, and are included as
Attachment D.
At the June meeting, the Board of Regents adopted the proposed amendment as
an emergency measure, effective July 1, 2018. The Notice of Emergency Adoption and
Revised Rulemaking was published in the State Register on July 18, 2018. Following the
30-day public comment period required under the State Administrative Procedure Act for
revised rule makings, the Department received additional comments on the proposed
amendment. A complete assessment of the public comment received from May 9 through
August 17, 2018 can be found in Attachment E. Please note that some of the comments
and responses presented to the Board of Regents at its June 2018 meeting have been
modified in the full assessment of public comment to reflect subsequent comments
received on the same issues and/or to reflect additional information gathered by the
Department from stakeholders and/or Department staff on these issues over the past two
months.
Background Information
On December 10, 2015, ESSA was signed into law by President Obama. This
bipartisan measure reauthorized the 50-year-old Elementary and Secondary Education
Act (ESEA), which provides federal funds to improve elementary and secondary
education in the nation's public schools and requires states and school districts, as a
condition of funding, to take a variety of actions to ensure all children, regardless of race,
2

 income, background, or where they live, receive the education they need to prepare them
for success in postsecondary education, careers, and citizenship. New York State
receives approximately $1.6 billion annually in funding through ESSA.
After an extensive, 18-month long public engagement process, the Department,
with Board approval, submitted New York State’s ESSA plan to the USDE for review on
September 17, 2018. Subsequently, the Department met regularly with the USDE to
provide clarifications on the plan. On January 17, 2018, the USDE approved the State’s
plan. In January 2018, the Department provided the Board of Regents with an update on
the approved plan and in March 2018, the Department provided an update regarding the
financial transparency requirements related to ESSA. In April 2018, the Board of Regents
was provided with a detailed summary of the proposed regulations and amendments and
voted to post the draft regulations and amendments for public comment. After publication
of the regulations in the State Register, at its June 2018 meeting, the Board of Regents
adopted revised regulations as an emergency measure at its June 2018 meeting,
effective July 1, 2018.
Overview of Proposed Regulations
For a full description of the regulations previously adopted by the Board of Regents
at its June 2018 Regents meeting, please refer to the June 2018 Regents item
(http://www.regents.nysed.gov/common/regents/files/618p12a5.pdf)
Description of Comments Received and Proposed Revisions to the June 2018
Regulation
From May 9, 2018 through August 17, 2018, the Department received
approximately 1,900 comments on the regulations. More than 1,400 of the comments
were submitted as part of four form letter campaigns, and the majority of the remaining
comments were individualized to various degrees but made the same or very similar
points. Two of the letter campaigns were based on form letters submitted primarily by
parents who underscored their right to opt their children out of participation in state
assessments and who urged that schools and districts not be subject to accountability
consequences based upon student non-participation in state assessments. There were
a number of individual school board members as well as a few local and state legislators
who also submitted comments that echoed those in the form letters. A smaller third letter
writing campaign was based on a form letter submitted primarily by teachers who made
similar points as those expressed in the other form letters and also wrote in opposition to
provisions of the regulations that the commenters believed impinged upon decisions that
should be addressed in collective bargaining agreements. The fourth campaign was the
result of several stakeholder groups collaborating on a set of common comments. The
remainder of the comments came from individuals who and additional stakeholder groups
that frequently commented on very specific aspects of the regulations.
A majority of the comments received were focused on the requirements in ESSA
and in the proposed regulations related to student participation in state assessments. In
a letter received by the Department on August 23, 2018, Mr. Patrick Rooney, Deputy
3

 Director of the USDE’s Office of State Support, reiterated that each state and local
educational agency “must implement a set of high-quality, yearly, academic assessments
that includes at a minimum, assessments in mathematics, reading/language arts, and
science to all public elementary and secondary school students…. This requirement does
not permit certain students or a specific percentage of students to be excluded from
assessments. Rather it sets out the rule that all students in tested grades must be
assessed.” The full text of Mr. Rooney’s letter is included in Attachment F.
In response to comments about participation rate requirements, the Department is
proposing revisions to the regulations in four specific areas:
1. The criteria used to determine whether a school must develop and implement
a participation rate improvement plan have been revised. Currently, a
participation rate improvement plan is required when an accountability group
for two consecutive years fails to meet the 95% participation requirement in
either ELA or math and does not show improvement in participation rate
between the current and prior school year. An additional criterion has been
added that further limits the requirement for development of a participation rate
improvement plan to those instances in which an accountability group has a
Weighted Average Achievement Index that is below the state average (Level 1
or 2).
2. The provision that the Commissioner could require districts to set aside a
portion of their Title I funds to implement the recommendations of a state
participation rate audit in schools that have failed for five years to improve
participation rates has been removed.
3. The regulations have been clarified and now specify that if a school is
implementing a participation rate improvement plan and has made progress in
regard to meeting the 95% participation rate requirement, the school need only
update its participation rate plan and does not need to create a new plan each
year.
4. The Department has revised the exit criteria for Comprehensive Support and
Improvement Schools (CSI) and Targeted Support and Improvement Schools
(TSI) as it relates to participation rate. As a result of this change, a school
implementing a participation rate improvement plan will be eligible for removal
from CSI or TSI status so long as the accountability group(s) for which a plan
is required are not performing at Level 1 on the Weighed Academic
Achievement Index.
A summary of the other major substantive changes can be found in Attachment A.
The Department also made other non-substantive technical changes to the proposed
amendment (to correct typographical errors, reconcile any inconsistent language, and/or
to clarify the regulation in certain places). Further, as a result of the Department’s ongoing
work with the New York State Office of Children and Family Services (“OCFS”) regarding
transition liaisons serving youth released or conditionally released from residential
facilities, the Department has also revised the regulations to include juvenile detention
facilities as authorized by Executive Law §503 to the list of residential facilities covered
by §100.2(ff)(1)(i) of the regulations.
4

 Among the stakeholder groups that submitted public comments were the following:
• Advocates for Children of New York
• Alliance for A Healthy Generation
• Bassett Research Institute for Rural Community Health
• Better Schools, Better Neighborhoods
• Buffalo Urban League
• Business Council of New York State
• Committee for Hispanic Children and Families
• Community Action Organization of Western NY
• Capital Region Chamber
• Democrats for Education Reform
• Educators 4 Excellence
• Good Shepherd Services
• Healthier School Campaign
• High Achievement New York
• Generation Citizen NYC
• Long Island President’s Council
• New York Immigrant Coalition
• New York State School Boards Association
• New York State Allies for Public Education
• New York State Association of Career and Technical Educators
• New York State United Teachers
• NYC Save our Schools
• School Administrators Association of NYS (SAANYS)
• The Education Trust
• The Center for Educational Equity
• The Committee for Hispanic Children and Families
• The New York City Department of Education
• The New York Immigration Coalition
• The New York State Parent Teacher Association
• The Urban League of Rochester
• The United Way of NYC
Based on public comment received under the State Administrative Procedure Act,
the Department recommends making changes to the proposed amendment, in addition
to those described above regarding participation rate requirements. The changes are
described in detail in the Summary of Changes chart in Attachment A.
A full assessment of the public comment received from May 9 through August 17,
2018 can be found in Attachment E.
As a result of these changes to the proposed amendment, a Notice of Emergency
Adoption and Revised Rulemaking will be published in the State Register on October 3,
2018.
5

 Related Regents Items:
October 2016: Every Student Succeeds Act State Plan Development Activities
November 2016: Development of New York’s Every Student Succeeds Act State Plan
and ESSA State Plan High Concept Ideas
December 2016: Development of New York's Every Student Succeeds Act State Plan
January 2017: Development of the New York State Every Student Succeeds Act Plan
and ESSA State Plan High Concept Ideas and Proposed “High Concept Idea” Summaries
-- Supports and Improvements for Schools 12/1/2016 and Survey of School Quality and
Student Success Indicators
March 2017: ESSA Public Retreat
April 2017: April 4 Board of Regents Meeting on ESSA
May 2017: Every Student Succeeds Act Draft State Plan for Public Comment
June 2017: Every Student Succeeds Act State Plan: Update on Public Hearings and
Public Comment
July 2017: Board of Regents Public Retreat, with Proposed Changes to Final draft plan
for submission; State Dashboards Presentation; Next Generation Assessments
Presentation; Social, Emotional, Health and Mental Health, and Attendance Issues
Presentation; Stakeholder Feedback Analysis Presentation
September 2017: Revised Draft Every Student Succeeds Act State Plan and Associated
waivers
January 2018: USDE Review and Approval of New York’s Every Student Succeeds Act
State Plan
March 2018: Every Student Succeeds Act Financial Transparency
April 2018: Proposed Amendments to §§100.2(ff), 100.2(m), 100.18, 100.19, and Part
120 of the Commissioner’s Regulations and the Addition of a new §100.21 of the
Commissioner’s Regulations Relating to the implementation of the State’s Approved
Every Student Succeeds Act (ESSA) Plan
June 2018: For Emergency Action: Proposed Draft Commissioner’s Regulations Related
to New York’s Approved ESSA Plan

6

 Recommendation:
Department staff recommends that the Board of Regents take the following
actions:
VOTED: That §§100.2(ff), 100.2(m), 100.18, 100.19 and Part 120 of the
Commissioner’s Regulations as amended and §100.21 as added to the Commissioner’s
Regulations as an emergency measure at the June 2018 Board of Regents meeting be
repealed, effective September 18, 2018; and further;
VOTED: That §§100.2(ff), 100.2(m), 100.18, 100.19 and Part 120 of the
Commissioner’s Regulations be amended and that §100.21 be added to the
Commissioner’s Regulations, as submitted, effective September 18, 2018, as an
emergency action upon a finding by the Board of Regents that such action is necessary
for the preservation of general welfare to ensure that the State’s USDE approved ESSA
plan can be implemented beginning with the 2018-2019 school year, consistent with the
requirements set forth by the USDE and to ensure that the emergency rule adopted at
the June Regents meeting, and subsequently revised, can remain continuously in effect
until adopted as a permanent rule.
Timetable for Implementation:
If adopted at the September 2018 Regents meeting, the proposed amendment will
become effective as an emergency measure on September 18, 2018. It is anticipated
that the proposed amendment will be presented for permanent adoption at the December
2018 Board of Regents meeting after publication of a Notice of Emergency Adoption and
Revised Rulemaking in the State Register on October 3, 2018 and expiration of the 30day public comment period for revised rulemakings. If adopted at the December 2018
Regents meeting, the proposed amendment will be effective as a permanent rule on
December 26, 2018.

7

 Attachment A
Issue

Enrollment of
youth released
or conditionally
released from
residential
facilities

Emergency
Regulation

Section

It shall be the
100.2(ff)(1)(i)
duty of the
board of
education and
the
superintendent
of schools of
each school
district to
ensure:
(i) that any
youth presented
for enrollment
who is entitled
to attend the
schools of such
district pursuant
to Education
Law, section
3202 and who is
released or
conditionally
released from a
residential
facility operated
by or under
contract with the
Office of
Children and
Family Services,
the Department
of Corrections
and Community
Supervision, the
Office of
Alcoholism and
Substance
Abuse Services,
the Office of
Mental Health,
the Office for
People with
8

Proposed
Revision
As a result of the
Department’s
ongoing work
with the New
York State Office
of Children and
Family Services
(“OCFS”)
regarding
transition liaisons
serving youth
released or
conditionally
released from
residential
facilities, the
Department
revised the
regulations to
include juvenile
detention facilities
as authorized by
Executive Law
§503 to the list of
residential
facilities covered
by §100.2(ff)(1)(i)
of the regulations.

Item
page
#
24

 Issue

Emergency
Regulation

Section

Proposed
Revision

Item
page
#

Developmental
Disabilities, or a
local
department of
social services,
is promptly
enrolled and
admitted to
attendance in
such district,
and that school
district
personnel
cooperate with
such facilities
and agencies in
facilitating such
prompt
enrollment.
District Report
Cards

A district or
100.2(m)(4)
charter school
may add any
other
appropriate
information to its
State Report
Card. Districts
are required to
the extent
practicable to
translate report
cards and other
information into
the languages
that parents can
understand.

9

Revised to
provide examples
of other
appropriate
information that
districts and
charter schools
may add to their
report cards
including, but not
limited to: school
climate and
safety; access to
specific learning
opportunities,
such as physical
education; and
teacher turnover
and absences.
Clarifies the
expectation that
reports cards and
other information
will, to the extent

26

 Issue

Accountability
for New York
City High
Schools

Emergency
Regulation

Section

In the city
100.21(b)(1)(iv)
school district of
the city of New
York, in any
borough in
which the
aggregate
performance of
all of the high
schools in such
borough would
cause a school
to be identified
as a CSI or a
TSI high school
pursuant to the
provisions of
this section,
such district
shall designate
one or more
high school
superintendents
in each such
borough to carry
out the
requirements of
this section
applicable to a
Target District
within such
borough; except
that the
Chancellor of
the city school
district of the
city of New York
may petition the
Commissioner
10

Proposed
Revision

Item
page
#

practicable, be
translated into the
languages most
frequently spoken
in the district.
This provision
33
has been
removed so that,
community
school districts
continue to be
accountable for
high schools that
operate within
their boundaries,
as is currently the
case.

 Issue

N-Size for Core
Subject
Performance
Index (i.e., the
Index based on
the
performance in
ELA, math, and
science of
continuously
enrolled tested
elementary and
middle school
students). In
some schools,
there are
accountability
groups that
meet the n-size
requirement for
assignment of a
Weighed
Academic
Achievement
Level to an
accountability
group but do
not have
sufficient

Emergency
Regulation

Section

to aggregate the
performance of
transfer high
schools citywide
and to
designate one
or more high
school
superintendents
to carry out the
requirements
applicable to a
Target District
for such
schools.
In order to be
100.21(b)(1)(xvii)
assigned a Core
Subject
Performance
Index, an
accountability
subgroup must
in the current
school year and
prior school
year combined
have a minimum
of 30 students
results for
continuously
enrolled
students.

11

Proposed
Revision

A Core Subject
Performance
Index will be
computed if an
accountability
group has for the
current year and
prior year
combined a
minimum of 15
results for
continuously
enrolled students
and these results
equal at least
50% of the
results for the
subgroup on the
Weighted
Average
Achievement
Index (i.e., the
Index that uses
as the
denominator the
greater of the
number of
continuously
enrolled students

Item
page
#

42

 Issue

results to
assign a Core
Subject
Performance
Level. In some
of these cases,
assignment of a
Core Subject
Performance
Level will
increase the
accountability
group’s
Composite
Performance
Level, because
the group’s
Core Subject
Performance
Level is higher
than the
school’s
Weighted
Average
Achievement
Level.
N-Size for
Graduation
Rate Indicator.
In many
schools, there
are sufficient
student results
for an
accountability
group to be
assigned a
Composite
Performance
Level based on
ELA, math,
science, and
social studies
results but not

Emergency
Regulation

Section

Proposed
Revision

Item
page
#

who participated
in the state
assessments or
95% of
continuously
enrolled
students). For
example, if there
are 40 results for
the Weighted
Average
Achievement
Index, a Core
Subject
Performance
Index would be
assigned if there
are at least 20
results for
continuously
enrolled tested
students.

To be assigned 100.21(b)(1)(xvii)
a Composite
Performance
Level, an
accountability
subgroup must
in the current
school year and
prior school
year combined
have a minimum
of 30 students
results for
continuously
enrolled
students.

12

In an instance
where the
Composite
Performance
Index for a high
school
accountability
group is equal to
or greater than
30, a graduation
rate level shall be
computed for that
accountability
group so long as
there are a
minimum of 15
students in the

42

 Issue

sufficient
results to
assign a
Graduation
Rate Level.
This is because
each student in
the
accountability
cohort typically
produces 4
student results
for the
Composite
Performance
Indicator but
only one
student result
for each
graduation rate
cohort.
Out-of-School
Suspensions

Emergency
Regulation

Section

Proposed
Revision

Item
page
#

graduation
cohort.

The out-ofschool
suspension rate
will be
incorporated
into the
accountability
system within a
timeframe
prescribed by
the
Commissioner

100.21(b)(2)(xi)

13

The timeframe
incorporation is
now explicit:
The 2017-18
school year
results will be
used as a
baseline for this
indicator.
Using 2018-19
school year
results, the
Commissioner
shall report for
each
accountability
group for which a
school or district
is accountable a
Level from 1-4
based on the outof-school
suspension rate.

47

 Issue

Definition of
School-level
evidence-based
intervention

Emergency
Regulation

An evidencebased
intervention
could be a
“promising
practice” that is
based on highquality research
findings or
positive
evaluation that
such activity,
strategy, or
intervention is
likely to improve
student

Section

100.21(b)(4)(v)

14

Proposed
Revision
For the 2019-20
school year
results, districts
must implement
the provisions of
100.21(i)(4) for
any schools that
have an
accountability
group that
performs at Level
1 on the out-ofschool
suspension
indicator.
Beginning with
2020-21 school
year results, the
out-of-school
suspension
indicator shall be
incorporated into
the methodology
used to
determine the
accountability
status of schools
and districts.
To align with the
definition in
ESSA, this
provision has
been removed.
An evidencebased
intervention must
be one that is an
activity, strategy,
or intervention
that has met the
criteria outlined in
section
8101(21)(A) of
ESSA by

Item
page
#

55

 Issue

Required
Parental and
Student
Involvement in
School
Improvement
Plan

Principal
Support Report
and Principal
Needs

Emergency
Regulation

Section

outcomes or
other relevant
outcomes and
includes
ongoing efforts
to examine the
effects of such
activity,
strategy, or
intervention
Schools
100.21(b)(4)(viii)
identified as CSI
will submit their
plans to the
Department for
approval, which
may reject any
plan that does
not adhere to
the directions
provided by the
Department
and/or provide
sufficient
evidence in
such format as
prescribed by
the
Commissioner
that parents and
pedagogical
staff and in high
schools,
students,
meaningfully
participated in
the
development of
the plan.
The Principal
100.21 (b)(4)(xii)
Support report
and (xiii)
means a report
to be completed
by school
15

Proposed
Revision

Item
page
#

demonstrating a
statistically
significant effect
on improving
student outcomes
or other relevant
outcomes

Revised to make
clear that the
Department shall
reject CSI plans
that do not
demonstrate
meaningful
participation from
parents and to
include
secondary
students, not just
high school
students, in the
process.

57

Revised to make
clear that the
district will create
a principal
support report to

57

 Issue

Assessment for
CSI Schools

Emergency
Regulation

Section

districts with at
least one CSI
school that did
not meet its
Annual
Achievement
Progression
target.

Proposed
Revision
identify the needs
of the school
leadership team,
not just the
principal. The
principal needs
assessment will
be a
comprehensive
review of how the
district will
support its school
leaders.

The Principal
Needs
Assessment
means a
comprehensive
assessment of
the capacity of
the district to
support its
principals, that
will be an
additional
required
component of
the District
Needs
Assessment in
any Target
District that has
at least one CSI
school that fails
to meet its
Annual
Achievement
Progression
Target for two
consecutive
years, using
such
methodology
and form as
may be
prescribed by
the
Commissioner.
16

Item
page
#

 Issue

Emergency
Regulation

Section

Annual
Achievement
Progression

The annual
100.21(b)(4)(xiv)
achievement
progression is
used to
determine
whether a
Comprehensive
Support and
Improvement
School is failing
to make
progress and
may be subject
to additional
interventions.
For elementary
and middle
schools, one
way to make
progress is to
show an
increase
between the
school’s
performance in
the current
school year
compared to the
prior school
year on the
Core Subject
Performance
Index.
Requirements
Beginning with
100.21(i)(1)(i)(d)
for Participatory the 2019-2020
Budgeting
school year, CSI
schools must
annually set
aside and spend
a designated
amount of
allowable funds
in such school
year, in an
17

Proposed
Revision
For elementary
and middle
schools, one way
to make progress
is to show
improvement on
both the Core
Subject
Performance
Index and the
Weighted
Average
Achievement
Index.

Districts now
have the option
to implement the
Participatory
Budgeting
Process or select
alternative forms
of increasing
parent and
student
engagement from

Item
page
#
59

98

 Issue

Requirement
for additional
funding to be
used for
Participatory
Budgeting in
lieu of Public
School Choice

Emergency
Regulation

Section

Proposed
Revision

Item
page
#

amount
a list determined
specified by the
by the
Commissioner
Commissioner.
and not to be
less than
$2,000, for the
purpose of
funding projects
that are
proposed by
and voted on by
the students
and families of
the school
through a
process
determined by
the
Commissioner.
In the event that 100.21(i)(1)(iii)(g) The regulations
102
a school must
have been
offer Public
clarified to specify
School Choice
that the additional
in a
amount to be
Comprehensive
spent on
Support and
Participatory
Improvement
Budgeting is
School but
based on the
cannot
school’s first year
accommodate
allocation for
all transfer
Participatory
requests for lack
Budgeting and
of space, the
does not continue
district must
to double or triple
double the
each year. (For
amount the
example, if a
school spent in
school spent
the prior year to
$2,000 for
implement
Participatory
Participatory
Budgeting in
Budgeting. If no
Year 1, then a
transfer
school that is
requests can be
unable to
accommodated,
accommodate
18

 Issue

Emergency
Regulation

Section

the district must
triple the
amount the
school spent the
prior year to
implement
Participatory
Budgeting.

Requirement
for
Development
and
Implementation
of a
Participation
Rate
Improvement
Plan

Authority of the
Commissioner
to direct that

Schools are
100.21(i)(5)(ii)
required to
implement a
Participation
Rate
Improvement
Plan if an
accountability
group for two
consecutive
years fails to
meet the 95%
participation
rate requirement
in either ELA or
math and does
not improve the
participation
rate between
the current and
prior school
year for that
group in that
subject.
Beginning with
100.21(i)(5)(v)
2020-2021 and
2021-2022
19

Proposed
Revision
any transfer
requests must
spend $6,000 in
Year 2 and
$6,000 in Year 3
if the school
remains identified
for CSI and is
unable to offer
any transfers.
The school does
not have to
spend $18,000 in
Year 3, triple the
allocation in Year
2 on public
school choice.)
A Participation
Rate
Improvement
Plan would only
be required for
those
accountability
groups that
perform at Level
1 or Level 2 (i.e.,
in the bottom half
of schools in the
State) on the
Weighted
Average
Achievement
Index.

This provision
regarding set
aside of funds

Item
page
#

108

111

 Issue

districts set
aside a portion
of Title I funds
when a school
that is required
to implement a
participation
rate
improvement
plan has failed
three times to
improve the
participation
rate for the
accountability
group for which
a plan is
required

Participation
Plan
Requirements
for Schools that
are improving
but not yet at
95%

Emergency
Regulation

Section

school year
results, for any
school for which
the Department
shall conduct an
audit of the
participation
rate because
the schools
have failed to
improve the
participation
rate for at least
five years for
the
accountability
group(s) for
which such
plans were
required, the
Commissioner
may require that
the district set
aside a portion
of its Title I
funds to use to
increase student
participation in
state
assessments in
such school.
Any school that 100.21(i)(5)(viii)
is required to
conduct a selfassessment and
develop a
participation
rate
improvement
plan shall be
required to
update such
plan annually
until the school
20

Proposed
Revision

Item
page
#

has been
removed and now
indicates that
schools that have
failed to improve
their participation
rate for an
accountability
group in either
ELA or in math
for at least five
years may be
required to
address
recommendations
contained in the
participation rate
audit.

A school required
to do a
participation rate
plan that is
making annual
improvements in
increasing
participation in
state
assessments will
only have to
update their
participation rate

112

 Issue

Removal of
School from
TSI and CSI
status

Translation of
Parent
Notifications

Emergency
Regulation

Section

is no longer
failing to meet
the 95 percent
participation
rate for any
subgroup(s) and
subject(s) which
caused it to be
required to
conduct such
self-assessment
and develop
such plan.
Schools may
100.21(j)(1)(ii)(d)
not be removed
from TSI or CSI 100.21(j)(1)(iii)
status if the
school is
required to
implement a
School
Improvement
Participation
Rate Plan.

Notification that
a school has
been identified
as a
Comprehensive
Support and
Improvement
School or a
Targeted
Support and
Improvement
School or

100.21(h)(1) and
100.2(l)(1)(i)

21

Proposed
Revision

Item
page
#

plan, not create a
new one.

A school
113
implementing a
Participation Rate
Improvement
Plan would be
eligible for
removal from CSI
or TSI status so
long as the
accountability
group(s) for
which a plan is
required are not
performing at
Level 1 on the
Weighed
Academic
Achievement
Index.
Clarifies that such 95
translation must,
118
to the extent
practicable, be
made into the
languages most
frequently spoken
in the district.

 Issue

Emergency
Regulation

Section

placed under
registration
review must be
translated, when
appropriate into
the recipient's
native language
or mode of
communication,
to persons in
parental relation
of students
attending the
school.
Required
The
100.21(l)(2)(ii)
actions for
Commissioner
100.21(l)(3)(i)
schools placed may direct that
100.21(l)(4)(i)
under
the district
registration
submit a plan to
review that are implement one
also (1)
of the following
designated as
actions:
having poor
(a) convert the
learning
school to a
environments,
charter school
(2) in
pursuant to
receivership, or Education Law
(3) CSI schools section 2851(3);
that are not
(b) enter into a
struggling or
contract with the
persistently
State university
struggling, and trustees, subject
fail to take
to the approval
required
of the
actions or make Commissioner
required
of Education,
progress, or for pursuant to
receivership
Education Law
schools, to
section 355(n)
make
for the
demonstrable
education of the
improvement,
children of the
for two
school;
22

Proposed
Revision

The Department
has revised the
regulations to
remove the
provision that the
Commissioner
may direct the
district to submit
a plan to convert
the school to a
charter school
pursuant to
Education Law
section 2851(3).

Item
page
#

120122

 Issue

consecutive
years

Emergency
Regulation

Section

(c) for the city
school district of
the City of New
York, enter into
a contract with
the city board
and the city
university of
New York
pursuant to
Education Law
section 2590(k)
to administer a
New York City
public high
school; or
(d) close or
phase out the
school.

23

Proposed
Revision

Item
page
#

 Attachment B

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant to Education Law sections 101, 112, 207, 210, 215, 305, 309 and 3713
and 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).
1.

Subdivision (ff) of section 100.2 of the Regulations of the Commissioner of

Education is amended, as follows:
(ff) Enrollment of youth released or conditionally released from residential facilities.
(1) It shall be the duty of the board of education and the superintendent of schools
of each school district to ensure:
(i) that any youth presented for enrollment who is entitled to attend the schools of
such district pursuant to Education Law, section 3202 and who is released or conditionally
released from a residential facility operated by or under contract with the Office of Children
and Family Services, the Department of Corrections and Community Supervision, the
Office of Alcoholism and Substance Abuse Services, the Office of Mental Health, the
Office [of Mental Retardation and] for People with Developmental Disabilities, [or] a local
department of social services, a local county correctional facility, or a juvenile detention
facility as authorized by Executive Law section 503 is promptly enrolled and admitted to
attendance in such district, and that school district personnel cooperate with such facilities
and agencies in facilitating such prompt enrollment;
(ii) that the youth's educational records are requested from the school or
educational program such student attended while in the residential facility; and
24

 (iii) where applicable, that the educational plan for such student's release or
conditional release, as submitted to the family court pursuant to Family Court Act section
353.3(7)(c), is implemented.
(2) Each school district shall designate one or more employees or representatives
to [facilitate the prompt enrollment of students who are released or conditionally released
and whose] serve as a transition liaison(s) with residential facility personnel as such
facility is defined in subparagraph (i) of paragraph (1) of this subdivision, parents,
students, and State and other local agencies for the purpose of facilitating a student’s
effective educational transition into, between, and out of such facilities to ensure that each
student receives appropriate supports, services, and opportunities.

The transition

liaison’s duties shall include, but are not limited to[, the receipt of student records and
serving as a district contact person with residential facilities and State and local
agencies.]:
(i) ensuring that the district has complied with the requirements of this subdivision,
Parts 116 and 118 of the Commissioner’s regulations and Education Law §112, as
applicable;
(ii)

coordinating the timely transmission, receipt, and review of a student’s

educational records (including but not limited to, report cards, transcripts, progress notes
and Individualized Educational Plans) from the previous school and/or any educational
program placements;
(iii) collaborating with staff in such facilities to ensure a student is appropriately
enrolled in required educational and support services; and

25

 (iv) ensuring that parents or guardians of students are informed of educational and
related opportunities available to their children and are provided with meaningful
opportunities to participate in the education of their children.
2. Paragraph (m) of section 100.2 of the Regulations of the Commissioner of
Education is amended, effective July 1, 2018, as follows:
(1) The New York State report card for each public school , charter school, and
school district, except the New York City school district, shall [consist of the following
reports] be prepared by the Education Department[:
(i) the New York State report card;
(ii) the New York State accountability report; and
(iii) for public school districts, the fiscal supplement].
The chancellor of the New York City School District shall produce a New York City report
card, as approved by the [c]Commissioner.
(2) The superintendent of each public school district, except the New York City
School District, shall present [all three parts of] the New York State report card to the
board of education of such district at a public meeting within 30 calendar days of the
commissioner's release of [each] the report. In New York City, the chancellor shall
present, in this same time period, the New York City report card to the New York City
Board of Education. In a charter school, the charter school leader shall present, in this
same time period, the charter school report card to the charter school board of trustees.
(3) . . .
(4) To satisfy the local report card requirements under section 1111(h)(2) of the
[No Child Left Behind Act] Elementary and Secondary Education Act of 1965, as
amended by the Every Student Succeeds Act of 2015, 20 U.S.C. section 6311(h)(2), each
26

 report card for a local educational agency, as defined in 100.21(b)(1) shall be placed on
the website of the local educational agency or, in any case in which a local educational
agency does not operate a website, provided to the public in another manner determined
by the local educational agency. Each public school principal and each [principal] school
leader of a charter school receiving Federal funding under title 1 shall also distribute,
within 30 calendar days of the commissioner's release of such reports, copies of the New
York State report card [and the New York State accountability report] for the school and
the district, or, in the New York City School District, the New York City report card to the
parent of each student. A district or charter school may add any other appropriate
information, including but not limited to measures of school climate and safety; access to
specific learning opportunities, such as physical education; and teacher turnover and
absences. Such additional information also must be distributed to the parent of each
student and must be made widely available through public means, such as posting on the
Internet, distribution through the media, and distribution through public agencies. To the
extent practicable, the district or charter school shall provide the report and additional
information in a language that the parents can understand (e.g, in the most frequently
used languages in the district).
(5) The comprehensive [assessment] information report for each nonpublic school
will include the following information, for each school building[,for the three school years
immediately preceding the school year in which the report is issued]:
(i) student test data on the New York State elementary and middle-level ELA, [and]
mathematics, and science assessments [in the New York State Testing Program, the
Regents competency tests], all Regents examinations, New York State English as a

27

 Second Language Achievement test [the second language proficiency examinations as
defined in this Part];
(ii) student enrollment by grade, racial/ethnic group and English language learner
status;
(iii) [number of students transferred into the alternative high school and high school
equivalency preparation programs as set forth in section 100.7 of this Part];
[(iv)] data, as required by the commissioner, on diplomas and certificates awarded;
[(v)] (iv) any additional information prescribed by the commissioner on educational
equity and other issues; and
[(vi)] (v) any additional information which the chief administrative officer of the
nonpublic school believes will reflect the relative assessment of a school building or
district. The chief administrative officer of each nonpublic school shall initiate measures
designed to improve student results wherever it is warranted. The chief administrative
officer of each nonpublic school shall be responsible for making the comprehensive
[assessment] information report accessible to parents.
3. Subdivision (a) of section 100.18 of the Regulations of the Commissioner of
Education is amended, as follows:
(a) Applicability. Notwithstanding the provisions of section 100.2(p)(1) through (11)
and (14) through (16) of this Part, this section shall apply to school districts and charter
schools in lieu of such provisions during the period of the Elementary and Secondary
Education Act (ESEA) waiver, and any revisions and extensions thereof, except as
otherwise provided in this section for all accountability designations made prior to July 1,
2018 and to the corresponding interventions for such schools and/or school districts for
the 2018-2019 school year, except as otherwise provided in section 100.21 of this Part.
28

 If a provision of section 100.2(p) of this Part conflicts with this section, the provisions of
this section shall prevail and the provision of section 100.2(p) of this Part shall not apply.
4. Section 100.19 of the Regulations of the Commissioner of Education is
amended as follows:
§100.19. Takeover and restructuring of failing and persistently failing schools.
(a) Definitions. As used in this section:
(1) . . .
(2) . . .
(3) Priority school shall mean a school identified as a priority school pursuant to
section 100.18(g) of this Part prior to July 1, 2018. On or after July 1, 2018, a priority
school shall mean a school identified as a comprehensive support and improvement
school pursuant to section 100.21 of this Part.
(4) School district in good standing shall mean a school district that has not been
identified pursuant to section 100.18(g) of this Part as a focus district prior to July 1, 2018.
On or after July 1, 2018, a school district in good standing shall mean a school district
that has not been identified pursuant to section 100.21 of this Part as a Target District.
(5) . . .
(6) . . .
(7) …
(8) …
(9) …
(10) . . .
(11) …
(12) Department-approved intervention model or comprehensive education plan
29

 shall mean, for school years prior to the 2019-2020 school year, a comprehensive
education plan pursuant to section 100.18(h)(2)(iii), a plan for a School Under
Registration Review pursuant to section 100.18(l)(3) or a school phase out or closure plan
pursuant to section 100.18(m)(5) of this Part. For school years commencing on or after
July 1, 2019, Department-approved intervention model or comprehensive education plan
shall mean a school comprehensive education plan as defined in section 100.21(b)(4)(viii)
of this Part, a plan for a School Under Registration Review pursuant to section 100.21(l)
of this Part, or a school phase out or closure plan pursuant to section 100.21(l) of this
Part.
(13)...
(14) …
(15) …
(16) …
(17) …
(18) …
(b) …
(c) …
(d) School District Receivership.
(1) . .
(2) . . .
(3) . . .
(4) . . .
(5) . . .
(6) With respect to a performance review conducted in accordance with paragraph
30

 (5) of this subdivision:
(i) at the end of a school year in which a school has been removed from priority
school status, pursuant to section 100.18(i)(1) of this Part for school years ending prior to
July 1, 2018 and for a school that is removed from comprehensive support and
improvement status, pursuant to subdivision (j) of section 100.21 of this Part for school
years commencing on or after July 1, 2018, the [commissioner] Commissioner shall
remove the school’s designation as persistently struggling or struggling, except that, for
a school that has been placed into independent receivership, the independent receiver
shall continue to implement the school intervention plan consistent with subdivision (h) of
this section; and
(ii) the [commissioner] Commissioner shall continue a school under district
operation with the superintendent vested with the powers of a receiver consistent with
this section if a school has made demonstrable improvement as determined by the
commissioner in consultation and collaboration with the school district based on
performance metrics and goals described in paragraph (2) of this subdivision and shall
continue to be subject to annual review by the department as provided in paragraph (5)
of this subdivision.
(7) . . .
(8) . .
(9) . . .
(e) . . .
(f) . . .
(g) . . .
(h) . . .
31

 (i) . . .
(j) Phase [out] Out and Closure of Struggling and Persistently Struggling School.
Nothing in this section shall prohibit the [commissioner] Commissioner from directing a
school district to phase out or close a school pursuant to paragraph (f)(6) of this section,
or section 100.18(l) of this Part prior to July 1, 2018, or subdivision (l) of section 100.21
of this Part on or after July 1, 2018, or prohibit the Board of Regents from revoking the
registration of a school pursuant to such paragraph, or prohibit a school district from
closing or phasing out a school with the approval of the commissioner.
(k) …
(l) . . .
5. A new section 100.21 of the Regulations of the Commissioner of Education is
added, effective July 1, 2018, as follows:
§100.21. ESSA Accountability System.
(a) Applicability. Notwithstanding the provisions of paragraphs (p)(1) through (11)
and (14) through (16) of section 100.2 and section 100.18 of this Part, this section shall
apply to school districts and charter schools in lieu of such provisions during the period
the Elementary and Secondary Education Act, as amended by the Every Student
Succeeds Act, is effective, except as otherwise provided in this section. If a provision of
paragraph (p) of section 100.2 or section 100.18 of this Part conflicts with this section, the
provisions of this section shall prevail and the provisions of paragraph (p) of section 100.2
or section 100.18 of this Part shall not apply. Provided that for accountability designations
made prior to July 1, 2018, the requirements of section 100.18 shall continue to apply to
the extent that plans and interventions under that section are required to be implemented
until the end of the 2018-2019 school year.
32

 (b) Definitions. As used in this section:
(1) General Definitions
(i) ESSA means 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).
(ii) Title I means Title I, part A of Elementary and Secondary Education Act of 1965,
as amended by the Every Student Succeeds Act of 2015, 20 U.S.C. sections 6301-6327
(Public Law 114-95, 129 STAT. 1802).
(iii) Board of education shall mean the trustees or board of education of a school
district; provided that in the case of the city school district of the City of New York, such
term shall mean the chancellor of the city school district acting in lieu of the board of
education of such city school district to the extent authorized by article 52-A of the
Education Law and, with respect to community school districts and New York City
superintendencies, such term shall mean the community superintendent or other
superintendent of schools acting in lieu of the board of education to the extent authorized
by article 52-A of the Education Law.
(iv) School district or district shall mean a common, union free, central, central high
school or city school district, provided that, in the case of the city school district of the City
of New York, such term shall mean a community school district or New York City
superintendency to the extent that such entity is the local educational agency for purposes
of Title I, and a special act school district as defined in subdivision 8 of section 4001 of
the Education Law, except as otherwise provided in this section.

33

 (v) Public school shall mean an elementary, middle, or high school operated by a
school district or a charter school authorized pursuant to Article 56 of the Education Law,
except as otherwise provided in this section.
(vi) Local educational agency (LEA) shall mean a local educational agency as
defined in section 8101(30) of ESSA, including a school district, board of cooperative
educational services, county vocational education and extension board, or charter school.
(vii) A transfer high school means a high school in which the majority of students
upon their first enrollment in the high school had previously attended grade nine or higher
in another high school or a high school in which the majority of students attained age 16
or higher in the year in which the students first entered grade 9, or a school in which more
than 50 percent of currently enrolled students are English language learners as defined
in Part 154 of this Title who have attended school in the 50 United States (excluding
Puerto Rico) and the District of Columbia for less than three years.
(viii) Alternate assessment means a New York State Alternate Assessment
approved by the Commissioner and recommended by the committee on special education
for students with severe disabilities as defined in section 100.1(t)(2)(iv) of this Part, in lieu
of a required State assessment.
(ix) Continuously enrolled means, for grades 3-8 and ungraded age equivalent
students, students enrolled on BEDS day as defined in this subdivision and enrolled
during the test administration period for the subject tested, and for high school, students
in the accountability cohort, as defined in paragraph (b)(2) of this section, except that for
the English language proficiency indicator continuously enrolled means, for grades 9-12
and ungraded age equivalent students, students enrolled on BEDS day and enrolled
during the test administration period.
34

 (x) Significant medical emergency means an excused absence from school during
both the regular and makeup examination period for which a school district has
documentation from a medical practitioner that a student is so incapacitated as to be
unable to participate in the State assessment given during that examination period.
(xi) Accountability subgroups shall mean the following subgroups: all students;
students from major racial and ethnic groups, as set forth in subparagraph (bb)(2)(v) of
section 100.2 of this Part; students with disabilities, as defined in section 200.1 of this
Title, including students no longer identified as students with disabilities but who had been
so identified during the preceding one or two school years; English language learners, as
defined in Part 154 of this Title, including students previously identified as an English
language learner during the preceding one, two, three, or four school years; and
economically disadvantaged students as defined in subparagraph (xii) of this paragraph;
except that for the purposes of the accountability and high school graduation cohorts,
students who were students with disabilities and students who were English language
learners at any time while members of these cohorts shall be included in these subgroups.
The school district accountability groups for each grade level shall include any student
enrolled in a public school in the district or placed out of the district for educational
services by the district committee on special education or a district official who meets the
criteria for the accountability subgroup.
(xii) Economically disadvantaged students shall mean students who participate in,
or whose family participates in, economic assistance programs, such as the Free or
Reduced Price Lunch Programs; Social Security Insurance (SSI); Food Stamps; Foster
Care; Refugee Assistance (cash or medical assistance); Earned Income Tax Credit
(EITC); Home Energy Assistance Program (HEAP); Safety Net Assistance (SNA); Bureau
35

 of Indian Affairs (BIA); or Family Assistance: Temporary Assistance for Needy Families
(TANF). Provided that, if one student in a family is identified as economically
disadvantaged, all students from that household may be identified as economically
disadvantaged.
(xiii) For elementary and middle-level students, participation rate means the
percentage of students enrolled during the test administration period who did not have a
significant medical emergency and who received a valid score on the required State
assessment in elementary- and middle-level grades. The State assessments that may be
used in elementary- and middle-level grades to fulfill the testing requirement for
participation in English Language Arts (ELA) and Mathematics are the New York State
Testing Program (NYSTP) assessments in ELA and Mathematics in grades 3-8, Regents
examinations in Mathematics taken in lieu of the NYSTP assessments for advanced
grades 7 and 8 students, the Alternate Assessment for eligible students with disabilities
in grades 3-8, and the New York State English as a Second Language Achievement Test
(NYSESLAT) for English language learners enrolled in school in one of the 50 States in
the United States (excluding Puerto Rico) or the District of Columbia for less than one
year as of a date determined by the Commissioner and any examinations accepted to
meet graduation and diploma requirements for students covered under the interstate
compact on educational opportunity for military children pursuant to section 100.20 of this
Title.
(xiv) For high school students, participation rate means the percentage of students
in grade 12 during the reporting year who received a valid score on the required high
school assessments. The State assessments that may be used at the secondary level to
fulfill the testing requirement for participation in English Language Arts (ELA) and
36

 Mathematics are New York State Regents examinations in English and Mathematics,
approved alternatives to Regents exams in English and Mathematics, examinations
accepted to meet graduation and diploma requirements for students covered under the
interstate compact on educational opportunity for military children pursuant to section
100.20 of this Title and the New York State Alternate Assessment (NYSAA) for eligible
students with disabilities at the secondary level.
(xv) Accountability level means a level from 1 to 4 derived when scores earned on
Regents examinations and Regents alternative examinations as defined in this
subdivision are converted to four accountability levels based on predetermined
accountability cut scores established by the Commissioner. Accountability levels are
used for calculating Performance Indices at the secondary level for ELA, Mathematics,
Science, and Social Studies as described in paragraph (2) of subdivision (b) of this
section.
(xvi) Performance levels shall mean for accountability determinations regarding
comprehensive support and improvement schools, targeted support and improvement
schools, and target districts made commencing with the 2017-2018 school year
assessment results, as follows:
(a) for elementary and middle grades:
(1) Level 1 - basic:
(i) a score of Level 1 on State assessments in ELA, Mathematics, and Science;
(ii) a score of Level 1 on the New York State Alternate Assessment in ELA,
Mathematics, and Science;
(iii) a score of Accountability Level 1 on a Regents Mathematics exam for
advanced grade 7 or 8 students;
37

 (iv) a score of Level 1 on a Regents Science exam for advanced grade 8 students;
(2) Level 2 - basic proficient:
(i) a score of Level 2 on State assessments in ELA, Mathematics, and Science;
(ii) a score of Level 2 on the New York State Alternate Assessment in ELA,
Mathematics, and Science;
(iii) a score of Accountability Level 2 on a Regents Mathematics exam for
advanced grade 7 or 8 students;
(iv) a score of Level 2 on a Regents Science exam for advanced grade 8 students.
(3) Level 3 - proficient:
(i) a score of Level 3 on State assessments in ELA, Mathematics, and Science;
(ii) a score of Level 3 on the New York State Alternate Assessment in ELA,
Mathematics, and Science;
(iii) a score of Accountability Level 3 on a Regents Mathematics exam for
advanced grade 7 or 8 students;
(iv) a score of Level 3 on a Regents Science exam for advanced grade 8 students.
(4) Level 4 - advanced:
(i) a score of Level 4 on State assessments in ELA, Mathematics, and Science;
(ii) a score of Level 4 on the New York State Alternate Assessment in ELA,
Mathematics, and Science;
(iii) a score of Accountability Level 4 on a Regents Mathematics examination for
advanced grade 7 or 8 students;
(iv) a score of Level 4 on a Regents Science examination for advanced grade 8
students.
(b) for secondary-level grades:
38

 (1) Level 1 - basic:
(i) a score of Accountability Level 1 on a Regents examination in ELA,
Mathematics, Science, or Social Studies;
(ii) a score of Level 1 on the New York State Alternate Assessment in ELA,
Mathematics, or Science at the secondary level;
(iii) a failing score on a Regents alternative examination in ELA, Mathematics,
Science, or Social Studies;
(iv) a cohort member who has not been tested on any of the assessments in (i)
through (iii).
(2) Level 2 (basic proficient):
(i) a score of Accountability Level 2 on a Regents examination in ELA,
Mathematics, Science, or Social Studies;
(ii) a score of Level 2 on the New York State Alternate Assessment in ELA,
Mathematics, or Science at the secondary level.
(3) Level 3 (proficient):
(i) a score of Accountability Level 3 on a Regents examination in ELA,
Mathematics, Science, or Social Studies;
(ii) a score of Level 3 on the New York State Alternate Assessment in ELA,
Mathematics, or Science at the secondary level;
(iii) a passing score on a State-approved alternative examination to a Regents
examination in ELA, Mathematics, Science, or Social Studies; or
(iv) any alternative examination to a Regents examination in ELA, Mathematics,
Science, or Social Studies accepted by the State for students covered under the interstate
compact on educational opportunity for military children pursuant to 100.20(c).
39

 (4) Level 4 (advanced):
(i) a score of Accountability Level 4 on a Regents examination in ELA,
Mathematics, Science, or Social Studies;
(ii) a score of Level 4 on the New York State Alternate Assessment in ELA,
Mathematics, or Science at the secondary level.
(c) Advanced middle school Mathematics students:
(1) For students enrolled in grade 7 or 8 and who take a Regents examination in
Mathematics but do not take the grade 7 or 8 New York State Testing Program
assessment in Mathematics, participation and accountability determinations for the
school in which the student is enrolled in grade 7 or 8 shall be based upon such student's
performance on the Regents examination in Mathematics. Participation and
accountability determinations for the high school in which such student later enrolls shall
be based upon such student's performance on Mathematics assessments taken after the
student first enters grade 9.
(2) For students enrolled in grade 7 or 8 who take both the grade 7 or 8 New York
State Testing Program assessment in Mathematics and a Regents examination in
Mathematics, participation and accountability determinations for the school in which the
student is enrolled in grade 7 or 8 shall be based upon such student's performance on
the New York State Testing Program assessment in Mathematics. Participation and
accountability determinations for the high school in which such student later enrolls shall
be based upon such student’s highest performance level/score earned on the Regents
examination taken in grade 7 or 8 or Regents examinations taken after the student first
enters grade 9.
(d) Advanced middle school Science students:
40

 (1) For students enrolled in grade 8 who take a Regents examination in science
but do not take the Grade 8 Intermediate Science Test, accountability determinations for
the school in which such student is enrolled in grade 8 shall be based upon such student's
performance on the Regents examination in Science. Participation and accountability
determinations for the high school in which such student later enrolls shall be based upon
such student’s performance on Science assessments after the student first enters grade
9.
(2) For students enrolled in grade 8 who take both the grade 8 Science
Intermediate-Level Science Test and a Regents examination in Science, accountability
determinations for the school in which such student is enrolled in grade 8 shall be based
upon such student's performance on the Grade 8 Intermediate-Level Science Test.
Participation and accountability determinations for the high school in which such student
later enrolls shall be based upon such student’s highest performance level/score earned
on the Regents examination taken in grade 7 or 8 or Regents examinations taken after
the student first enters grade 9.
(3) For students who took the Grade 8 Intermediate-Level Science Test when they
were enrolled in grade 7 and who take a Regents examination in Science when enrolled
in grade 8, accountability determinations for the school in which such student is enrolled
in grade 8 shall be based upon such student's performance on the Regents examination
in Science.
(4) For students who have taken the grade 8 Science intermediate assessment
when enrolled in grade 7 and who do not take a Regents examination in Science when
enrolled in grade 8, accountability determinations for the school in which the student is

41

 enrolled in grade 8 shall be based upon the student's performance on the Grade 8
Intermediate-Level Test taken in grade 7.
(xvii) Minimum n size shall mean the minimum number of student results that are
included within an accountability subgroup to make an accountability determination on a
particular accountability measure. For purposes of this section, the minimum n size is 30
unless otherwise provided. For the Weighted Average Achievement Index and the Core
Subject Performance Index the n size applies to the denominator used to calculate the
indices. For English Language Proficiency; Chronic Absenteeism; Graduation Rate; and
College, Career, and Civic Readiness, the n size applies to the denominator used to
calculate the rates. For Growth, the n size applies to three years of results in ELA and
Mathematics combined. For the Weighted Average Achievement Index, the Core Subject
Performance Index; the Composite Performance; Academic Progress; Graduation Rate;
and College, Career, and Civic Readiness indices, if there are fewer than 30 results in
the current school year, then the results from the current and prior school year shall be
combined and used if the results shall be equal to or greater than 30 to meet the minimum
n size requirement. Provided, however, that where the Weighted Average Achievement
Index for an accountability group is equal to or greater than 30, a Core Subject
Performance Index shall be computed for that accountability group so long as there are
a minimum of 15 student results for the Core Subject Performance Index and the number
of student results for the Core Subject Performance Index equals at least 50 percent of
the number of results for the Weighted Average Achievement Index. Provided further
that, where the Composite Performance Index for a high school accountability group is
equal to or greater than 30, a graduation rate shall be computed for that accountability
group so long as there are a minimum of 15 students in the graduation cohort. If the
42

 minimum n size is not sufficient to establish a baseline for a subgroup in order develop a
school or district MIP as defined in paragraph (2) of this subdivision, the Commissioner
shall not make an accountability determination for an accountability subgroup for the
Academic Progress; Graduation Rate; Chronic Absenteeism; or College, Career, Career,
and Civic Readiness measures.
(xviii) Self-Assessment Process. For each school year, public schools and school
districts in which a self-assessment process is required pursuant to this section shall
conduct a self-assessment of their academic program and the school learning
environment, in such format and using such criteria as may be prescribed by the
Commissioner. Such self-assessment shall not be required of those schools and school
districts for which the Commissioner shall conduct a review of the performance of the
school or school district in accordance with subdivision (g) of this section. The
superintendent of the school district or principal of the charter school shall review the selfassessment(s) and make a recommendation to the Commissioner, in such format and
according to such timeframe as the Commissioner may prescribe, as to whether the
accountability group(s) for which the school is accountable within the school or school
district shall be considered to have performed at Level 1, 2, 3, or 4 for each accountability
measure for which the school is below the minimum n size. The Commissioner shall
consider the self-assessment and any other relevant information in determining the levels
to assign to the school’s accountability group(s) for such measures.
(a) A registered school that has no continuously enrolled students because all
students are students with disabilities who attend the school and who have been placed
outside of their district of residence (in New York City, outside of their community school
district of residence) for educational services by the district committee on special
43

 education or a school district official shall participate in a self-assessment process
based on the students who are enrolled in the school. Schools in which a majority of
the students for which the school is accountable have not been enrolled in the school
as the result of a school district placement shall participate in the self-assessment
process as described in this subparagraph.
(xix) BEDS day shall mean the basic educational data system reporting deadline
or such date as prescribed by the Commissioner.
(xx) Regents alternative examination shall mean a Department-approved
alternative examination to a Regents examination pursuant to sections 100.2(f) and (mm)
of this Title.
(2) Definitions related to measures of school and district accountability.
(i) An accountability measure shall mean a measure used for the purpose of
implementing the system of accountability for schools and districts in accordance with the
provisions of this section, and shall include the following measures for elementary/middle
schools: (1) Composite Performance; (2) Student Growth; (3) Combined Composite
Performance and Student Growth; (4) English Language Proficiency; (5) Academic
Progress; and (6) Chronic Absenteeism as described in subdivision (f) of this section.
High school accountability measures shall include: (1) Composite Performance; (2)
Graduation Rate; (3) Combined Composite Performance and Graduation Rate; (4)
English Language Proficiency; (5) Academic Progress; (6) Chronic Absenteeism; and (7)
College, Career, and Civic Readiness as described in subdivision (f) of this section.

44

 (ii) Graduates are students in the Graduation Rate Cohort as defined in
subparagraph (xvi) of this paragraph who earned a Regents or local diploma by August
31st of the reporting year.
(iii) The State baseline means the statewide performance of an accountability
subgroup on an accountability measure that is used to establish the State Long-term
goals and annual Measures of Interim Progress for that measure. A state baseline shall
be established for the following accountability measures: Academic Progress in ELA;
Academic Progress in Mathematics; the Four-Year Graduation Rate; the Five-Year
Graduation rate; the Six-Year Graduation Rate; chronic absenteeism; and college, career,
and civic readiness.
(iv) School or district baseline mean the school or school district performance of
an accountability subgroup on an accountability measure that is used to establish the
school or school district’s annual measures of interim progress for that subgroup on that
measure. School and district baselines shall be established for the following
accountability measures: Academic Progress in ELA; Academic Progress in
Mathematics; the Four-Year Graduation Rate; the Five-Year Graduation Rate; the SixYear Graduation Rate; Chronic Absenteeism; and College, Career, and Civic Readiness.
Provided that for schools or districts with subgroups that fail to meet the minimum n size
requirements, a school and/or district baseline will be established when such subgroup
meets the minimum n size requirements, for the purpose of establishing Measures of
Interim Progress.
(v) State Measures of Interim Progress (State MIPs). For each accountability
measure that a State baseline has been established, the Commissioner shall establish
for each accountability subgroup annual State MIPs. Prior to the start of the 2018-19
45

 school year, the Commissioner shall establish State MIPs for the 2017-2018 through the
2021-2022 school years. The Commissioner shall annually establish new State MIPs for
the school year next succeeding the last school year for which State MIPs had been
previously established.
(vi) School and District Measures of Interim Progress (school and district MIPs).
For each accountability measure for which a school or district baseline has been
established, the Commissioner shall establish for each accountability subgroup annual
school and district MIPs.

Prior to the start of the 2018-2019 school year, the

Commissioner shall establish school and district MIPs for the 2017-2018 through the
2021-2022 school years. The Commissioner shall annually establish new school and
district MIPs for the school year next succeeding the last school year for which school
and district MIPs had been previously established. In the event that a school and/or
district undergoes a significant change in student enrollment as determined by the
Commissioner, including but not limited to a change in grade configuration or a significant
increase or decrease in numbers of students who are members of an accountability
subgroup, the district may petition the Commissioner to revise the school and/or district
specific MIPs assigned to one or more accountability subgroups for one or more
accountability measures in the school.
(vii) State Long-term goal shall mean the amount of progress the State expects
each accountability subgroup to make, based on the State baseline, at the end of a fiveyear period towards achieving the State End-goal.

Exceeding Long-term goal is

determined by subtracting the Long-term goal from the State-End-goal, dividing by 2, and
then adding the result to the Long-term goal. The outcome must be at or above that
resulting number.
46

 (viii) State End-goal shall mean the ultimate desired performance at an
undetermined future point for an accountability subgroup on an accountability measure
for which a State Long-term goal has been established.
(ix) Student growth means the change in student achievement for an individual
student between two or more points in time.
(x) The Mean Student Growth Percentile means the result of a statistical model
that calculates each student's change in achievement between two or more points in time
on a State assessment and compares each student's performance to that of similarly
achieving students.
(xi) The out-of-school suspension rate shall mean the number of students who
were suspended from school (not including in-school suspensions) for one full day or
longer anytime during the school year divided by the number of students enrolled on
BEDS day of that school year commencing with data collected for the 2017-2018 school
year. A student is counted only once, regardless of whether the student was suspended
one or more times during the school year. For the 2018-2019 school year results, the
Commissioner shall report for each accountability group for which a school or district is
accountable a Level from 1-4 based on the out-of-school suspension rate. For the 20192020 school year results, districts must implement the provisions of 100.21(i)(4) for any
schools that have an accountability group that performs at Level 1 on the out-of-school
suspension indicator. Beginning with the 2020-2021 school year results, the out-of-school
suspension indicator shall be incorporated into the methodology used to determine the
accountability status of schools and districts under this section.
(xii) Accountability cohort.

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 (a) Except as provided in clauses (b) and (c) of this subparagraph, the
accountability cohort for each public school for purposes of computing secondary-level
composite performance and academic progress for any given school year shall consist of
those students who first enrolled in ninth grade anywhere four years prior to the current
reporting year and who were enrolled in the school on BEDS day of the reporting year.
The district accountability cohort for purposes of computing secondary-level composite
performance and academic progress for any given school year shall consist of those
students who first enrolled in ninth grade anywhere four years prior to the current reporting
year and who were as of BEDS day for the reporting year, enrolled in the school district
or placed by the school district committee on special education or by school district
officials in educational programs outside the school district on BEDS day of the reporting
year. Students with disabilities in ungraded programs shall be included in the district and
school accountability cohorts in the fourth school year following the one in which they
attained the age of 17.
(b) The following students shall not be included in the school accountability cohort:
students whose last regular enrollment record indicates that the student transferred to
another high school or alternative high school equivalency preparation program approved
pursuant to section 100.7 of this Part, or for which the public school or school district has
provided evidence of enrollment in a high school equivalency preparation program on
such form as the Commissioner may prescribe, or a prison or juvenile facility, or home
schooling by a parent or guardian, or postsecondary school prior to earning a diploma, or
who are a prior graduate from outside the United States and enrolled without
documentation from their previous school, or who left the United States or its territories,

48

 or who are deceased; except that, the following students will be included in the high
school cohort of the school they attended before transferring:
(1) students whose last regular enrollment record indicates that the student
transferred to an alternative high school equivalency preparation program approved
pursuant to section 100.7 of this Part, or for which the public school or school district has
provided evidence of enrollment in a high school equivalency preparation program on
such form as the Commissioner may prescribe, but leave that program before the end of
the third school year after the school year in which they first entered grade 9 without
having earned a high school equivalency diploma or without entering a program leading
to a high school diploma; and
(c) The following students shall not be included in the district accountability cohort:
students whose last regular enrollment record as determined by the Commissioner
indicates that he/she transferred to a high school that is not a component of the school
district or to an alternative high school equivalency preparation program approved
pursuant to section 100.7 of this Part, or for which the public school or school district has
provided evidence of enrollment in a high school equivalency preparation program on
such form as the Commissioner may prescribe, or criminal justice facility, or home
schooling by a parent or guardian, or postsecondary school prior to earning a diploma, or
who are a prior graduate from outside the United States and enrolled without
documentation from their previous school, or who left the United States or its territories,
or who are deceased; except that the following students will be included in the high school
cohort of the school district they attended before transferring:
(1) students whose last enrollment record indicates the student transferred to an
alternative high school equivalency preparation program approved pursuant to section
49

 100.7 of this Part or for which the public school or school district has provided evidence
of enrollment in a high school equivalency preparation program on such form as the
Commissioner may prescribe, but leave that program before the end of the third school
year after the school year in which they first entered grade 9 without having earned a high
school equivalency diploma or without entering a program leading to a high school
diploma.
(xiii) Graduation Rate Cohort.
(a) The Four-Year Graduation Rate Cohort for each public school and school
district shall consist of those students (including an ungraded student with a disability in
accordance with clause (e) of this subparagraph) whose first date of entry into grade nine
(anywhere) was four years previously and whose last enrollment in the school or district
(as applicable), did not end because of transfer to another school or district (as
applicable), transfer to home schooling by a parent or guardian, transfer to a
postsecondary school prior to earning a diploma, or being a prior graduate from outside
the United States and enrolled without documentation from their previous school, or
leaving the United States or its territories, or transferred to a prison or juvenile facility, or
death. Data for this cohort are captured as of June 30 of the fourth school year after the
school year in which the cohort first entered grade nine. Data for this cohort are lagged
by a year.
(b) The Five-Year Graduation Rate Cohort for each public school, and school
district shall consist of those students (including an ungraded student with a disability in
accordance with clause (e) of this subparagraph) whose first date of entry into grade nine
(anywhere) was five years previously and whose last enrollment in the school or district
(as applicable), did not end because of transfer to another school or district (as
50

 applicable), transfer to home schooling by a parent or guardian, transfer to a
postsecondary school prior to earning a diploma, or being a prior graduate from outside
the United States and enrolled without documentation from their previous school, or
leaving the United States or its territories, or transferred to a prison or juvenile facility, or
death. Data for this cohort are captured as of June 30 of the fifth school year after the
school year in which the cohort first entered grade nine. Data for this cohort are lagged
by a year.
(c) The Six-Year Graduation Rate Cohort for each public school and school district
shall consist of those students (including an ungraded student with a disability in
accordance with clause (e) of this subparagraph) whose first date of entry into grade nine
(anywhere) was six years previously and whose last enrollment in the school or district
(as applicable), did not end because of transfer to another school or district (as
applicable), transfer to home schooling by a parent or guardian, transfer to a
postsecondary school prior to earning a diploma, or being a prior graduate from outside
the United States and enrolled without documentation from their previous school, or
leaving the United States or its territories, or transferred to a prison or juvenile facility, or
death. Data for this cohort are captured as of June 30 of the sixth school year after the
school year in which the cohort first entered grade nine. Data for this cohort are lagged
by a year.
(d) Graduates are students in the Four-Year, Five-Year, or Six-Year Graduation
Rate Cohort who earned a local or Regents diploma by August 31 following the fourth,
fifth or sixth school year after the school year in which the cohort first entered grade nine.

51

 (e) Ungraded students with disabilities shall be included in the Accountability
Cohort and the Four-Year, Five-Year, and Six-Year Graduation Rate Cohorts in the
school year in which they attain the age of 17.
(3) Definitions related to school and district accountability designations.
(i) Comprehensive Support and Improvement (CSI) Schools (elementary and
middle schools). The State shall designate elementary/middle schools as CSI schools
using the following criteria:
(a) Beginning with the 2018-2019 school year, using 2017-2018 school year
results, the State shall identify a minimum five percent of the lowest performing schools
as CSI schools and shall identify CSI schools based upon the results from the all students
group once every three years thereafter, based on the accountability measures described
in subdivision (f) of this section. Provided that, if the accountability measures used to
identify CSI schools in subdivision (f) of this section result in the identification of fewer
than five percent of Title I public elementary/middle schools in the State, the
Commissioner shall identify the lowest performing five percent of Title I public
elementary/middle schools using the rank ordered list for the Combined Composite
Performance and Growth Index; and
(b) Any Targeted Support and Improvement school that has been identified for
additional targeted support based on the performance of one or more accountability
subgroups and continues, following the designation for additional targeted support, to be
identified as a targeted support and improvement school for three consecutive school
years for the performance of the same accountability subgroup(s) shall be preliminarily
identified as a CSI school.

52

 (ii) CSI (high schools). The State shall designate high schools as CSI schools
using the following criteria:
(a) Beginning with the 2018-2019 school year, using 2017-2018 school year
results, the State will identify a minimum five percent of the lowest-performing schools as
CSI schools based upon the results from the all students group once every three years
based on the accountability measures described in subdivision (f) of this section. Provided
that, if the methodology pursuant to (f)(1)(i) for elementary/middle schools and (f)(2)(i) for
high schools of this section results in the identification of fewer than five percent of Title I
public high schools in the State, the Commissioner shall identify the lowest performing
five percent of Title I public high schools using the rank ordered list for the Combined
Composite Performance and Graduation Rate Index; and
(b) Any targeted support and improvement school that has been identified for
additional targeted support based on the performance of one or more accountability
subgroups consistent with this section and continues, following the designation for
additional targeted support, to be identified as a targeted support and improvement school
for three consecutive school years for the performance of the same accountability
subgroup(s) shall be preliminarily identified as a CSI school; and
(c) Any school with a Four-Year Graduation rate below 67 percent and a Five-Year
or Six-Year Graduation Rate that is not at or above 67 percent in the years in which school
are identified pursuant to clause (a) of this subparagraph shall be preliminarily identified
as a CSI school.
(iii) A Targeted Support and Improvement (TSI) School shall mean a school with
one or more consistently underperforming accountability subgroups based on the
accountability measures described in subdivision (f) of this section. These schools will
53

 be identified annually, beginning with the 2019-2020 school year, except that a school
identified as a Priority or Focus School during the 2017-2018 school year may be
identified, using 2017-2018 school year data only, if such school meets the criteria for
identification as a TSI school beginning with the 2018-2019 school year. In addition, a
TSI school with any accountability subgroup performing below the threshold for the all
students subgroup for the lowest performing five percent of schools shall be identified for
additional targeted support in accordance with subdivision (f) of this section. Beginning
with the 2018-2019 school year, TSI schools shall be identified for additional targeted
support in the same years in which CSI school designations are made based on the
performance of the all students group.
(iv) Target District shall mean any school district with one or more CSI and/or TSI
schools. A Target District shall also mean any district whose district-wide performance
levels would cause a school to be identified as a CSI or a TSI school pursuant to the
provisions of this section.
(v) A school in Good Standing means a school that is not identified as a CSI or TSI
school pursuant to the provisions of this section.
(vi) Recognition schools shall mean schools in good standing that exhibit evidence
of high performance and/or rapid improvement as determined by the Commissioner.
(vii) Struggling school, persistently struggling school, school district receiver,
school intervention plan, school receiver, and consultation and collaboration shall be as
defined in section 100.19(a) of this Part.
(4) Definitions related to interventions for designated schools and districts.
(i) Integrated intervention team means a school quality review team or joint
intervention team appointed by the Commissioner, which may include a distinguished
54

 educator appointed by the Commissioner, to conduct a diagnostic review of a CSI or TSI
school or a Target District or a school under registration review.
(ii) A comprehensive needs assessment means a comprehensive assessment of
the school or district that includes a review of school or district quality using such form(s)
as may be prescribed by the Commissioner, which may include but is not limited to the
diagnostic tool for school and district effectiveness as defined in paragraph (15) of
subdivision (a) of section 100.19 of this Part; select state-reported and state-supported
data indicators as prescribed by the Commissioner; and a resource audit as defined in
this paragraph.
(iii) A progress needs assessment means an annual assessment of the school that
includes a progress review of the implementation of the school comprehensive education
plan; select State-reported and State-supported data in comparison to other schools and
in comparison to prior year performance; a resource audit as defined in this paragraph;
and a review of parent, staff, and teacher survey results; provided that a progress needs
assessment shall not be conducted in a school year in which a comprehensive needs
assessment is conducted.
(iv) Resource audit means an audit that examines the effectiveness of professional
development and how schools and districts use their time (e.g., instructional time, length
of school day and/or school year), space (facilities), staff, and funds in relation to best
practices as determined by Commissioner.
(v) School-level evidence-based intervention means an activity, strategy, or
intervention that has met the criteria outlined in section 8101(21)(A) of ESSA by
demonstrating a statistically significant effect on improving student outcomes or other
relevant outcomes: provided that such intervention must be implemented so as to affect
55

 such percentage of a school’s enrollment or such percentage of classrooms as may be
prescribed by the Commissioner for the school.
(vi) School improvement grant means a grant awarded by the U.S. Department of
Education to the New York State Education Department as a State Educational Agency
(SEA), pursuant to section 1003 of ESSA and awarded by the New York State Education
Department to a local educational agency (LEA), as defined in this section, as a subgrant.
(vii) Public school choice shall mean the option for students enrolled in a CSI
school to transfer to a public school in good standing at the appropriate grade level within
the district pursuant to subdivision (i) of this section; provided that if there are no schools
in good standing within the district that serve the grade level of the students, parents of
students in the identified schools shall be offered the ability to transfer their child to a TSI
school.
(viii) School comprehensive education plan means a school improvement plan,
using such form and format as the Commissioner may prescribe, that CSI and TSI schools
shall develop in collaboration with stakeholders, in accordance with the district’s plan for
school-based management and shared decision making pursuant to the requirements of
section 100.11 of this Part.

The plan must include an analysis of the school’s

achievement of previous goals; be based upon data from the school, including but not
limited to, the results of the comprehensive needs assessment or the progress needs
assessment and any additional data collected by the school; specify the accountability
measures for which the school has been identified; identify initiatives that will be
implemented to positively affect student learning and to address the accountability
measures for which the school has been identified; identify resource inequities, which
may include a review of school and school district budgeting; explicitly delineate the plan
56

 for annually increasing student performance through comprehensive instructional
programs and services as well as enhancement of teacher and leader effectiveness, with
a focus on the accountability subgroup(s) and measures for which the school was
identified; include evidence-based interventions; and be first implemented no later than
the beginning of the first day of regular student attendance in the school year following
the school’s identification.

Schools identified as CSI will submit their plans to the

Department for approval, which shall reject any plan that does not adhere to the directions
provided by the Department and/or provide sufficient evidence in such format as
prescribed by the Commissioner that parents and pedagogical staff and in secondary
schools, students, meaningfully participated in the development of the plan.
(ix) Job-embedded professional development means professional development for
teachers and leaders that is informed by the results of the comprehensive needs
assessment or progress needs assessment of the school and by the teacher or leader
evaluation system and any applicable supports, and addresses identified teacher and
student needs.
(x) Participatory budgeting process shall mean a process by which CSI schools,
beginning with the 2019-2020 school year, annually set aside and spend a designated
amount of allowable funds in such school year, in an amount specified by the
Commissioner and not to be less than $2,000, for the purpose of funding projects that are
proposed by and voted on by the students and families of the school through a process
determined by the Commissioner. The project proposal period and subsequent final vote
must occur annually within each CSI school and be organized in such manner as may be
specified by the Commissioner, which shall include, at a minimum, guidance that the final

57

 vote to determine the projects that are funded is open to all students and that the families
of each student shall have a minimum of one vote per family.
(xi) Parent, staff, and student surveys means annual surveys of parents, staff, and
students conducted by CSI and TSI schools, identified by the district and administered
annually in a manner prescribed by the Commissioner that encourages stakeholder
participation to provide schools with feedback on each of the following areas: Schoolwide
Systems, Organization and Climate, School Leadership, Curriculum and Instruction,
Social-Emotional Developmental Health, and Family Engagement for the purpose of
providing data to support the development and amendments of the school comprehensive
education plan.
(xii) Principal support report means a report to be completed by school districts
with at least one CSI school that did not meet its Annual Achievement Progression target
as defined in subparagraph (xiv) of this paragraph in which the school district identifies
any areas in which the school district determines that it could more effectively support the
leadership team(s) of its CSI school(s) based upon the specific needs of such school(s).
The report is intended to provide summary information for the district and the State, and
shall be consistent with Education Law sections 3012-c(10) and 3012-d(15) with respect
to personally identifiable information.
(xiii) Principal needs assessment means a comprehensive assessment of the
capacity of the district to support its school leadership team(s), that will be an additional
required component of the District Needs Assessment in any Target District that has at
least one CSI school that fails to meet its Annual Achievement Progression Target for two
consecutive years, using such methodology and form as may be prescribed by the
Commissioner.

The results of such needs assessment shall be submitted to the
58

 Department along with a plan to provide the necessary supports and resources identified
by the assessment and the plan for support based upon the assessment.
(xiv) Annual Achievement Progression Target means:
(a) For elementary and middle schools, an increase between the school’s
performance in the current school year compared to the prior school year based on either
the accountability measures described in subclause (1) or (2) of this clause for the all
students group:
(1) both the Core Subject Performance Index and the Weighted Average
Achievement Index as defined in subdivision (f) of this section; or
(2) the Mean Student Growth Percentile as defined in subparagraph (x) of
paragraph (2) of this subdivision, using only the most current school year results
compared only to the prior school year results; except that if a school receives a Mean
Student Growth Percentile score of 50 or higher, the Annual Achievement Progression
for such school shall be deemed an increase.
(b) For high schools, an increase between the school’s performance in the current
school year compared to the prior school year on one of the accountability measures
described in either subclause (1), (2) or (3) of this clause for the all students group:
(1) Composite Performance Index computed pursuant to (f)(i)(a)(9) of this section;
or
(2) the unweighted average of the Four-Year, Five-Year, and Six-Year Graduation
Rates computed pursuant to clause (b) of subparagraph (i) of paragraph (2) of subdivision
(f) of this section; or
(3) Notwithstanding the provisions of this clause, a school identified as a CSI
school solely because of a Graduation Rate below 67 percent must show an increase on
59

 the Average of the Four-Year, Five-Year, and Six-Year Graduation Rates computed
pursuant to subclause (2) of this clause.
(xv) District comprehensive improvement plan means a district improvement plan,
in such form and format as the Commissioner may prescribe, that Target Districts shall
develop, in collaboration with stakeholders in accordance with the district’s plan for
shared decision making pursuant to the requirements of section 100.11 of this Part. The
plan must include an analysis of the district’s achievement of previous goals; be based
upon data from the district, including but not limited to, the results of the district-level
comprehensive needs assessment or school-level comprehensive needs assessments
or progress needs assessments, and any additional data collected by the district; specify
the accountability measures for which the district has been identified; identify initiatives
that will be implemented to positively affect student learning and to address the
accountability measures for which the district has been identified; identify resource
inequities, which may include a review of school and school district budgeting; explicitly
delineate the plan for annually increasing student performance through comprehensive
instructional programs and services as well as enhancement of teacher and leader
effectiveness, with a focus on the accountability subgroup(s) and measures for which the
district and its schools have been identified; and be first implemented no later than the
beginning of the first day of regular student attendance in the school year following the
district’s identification.
(c) Procedure for registration of public schools.
(1) A school district that seeks to register a public elementary, intermediate,
middle, junior high school, or high school shall submit a petition for registration to the
Board of Regents, in a form prescribed by the Commissioner and containing such
60

 information as the Commissioner may require, no later than March 1 for schools opening
in September of the next successive school year or, for those schools opening during a
current school year, at least 90 days prior to the opening of such school, except that the
Commissioner may waive this timeline for good cause.
(2) The Commissioner shall review the petition and shall recommend its approval
to the Board of Regents if it is satisfactorily demonstrated that the school district has
provided an assurance that the school will be operated in an educationally sound manner;
is in compliance with applicable statutes, rules, and regulations relating to public schools;
and will operate in accordance with applicable building codes and pursuant to a certificate
of occupancy. No new public school will be recommended for registration by the
Commissioner if, in the Commissioner's judgment, the establishment of such school
would conflict with an approved plan for school district reorganization, except where it can
be established to the satisfaction of the Commissioner that such school is essential to the
educational welfare of the students.
(3) Where a school registered pursuant to this paragraph is in a Target District,
the Commissioner shall determine the accountability status of the newly registered school
based upon his or her review of the proposed educational program, including but not
limited to such factors as: school mission, school administration and staff, grade
configurations and groupings of students, zoning patterns, curricula and instruction, and
facilities.
(4) In the event that a school district merges two or more schools or transfers
organizational responsibility for one or more grades from one school to another, the
school district shall inform the Commissioner, in a form prescribed by the Commissioner
and containing such information as the Commissioner may require, no later than March
61

 1 for schools opening in September of the next successive school year or, for those
schools opening during a current school year, at least 90 days prior to the opening of
such school, except that the Commissioner may waive this timeline for good cause. As a
result of such changes, the Commissioner may adjust the accountability status of the
affected schools to reflect such organizational changes.
(d) All registrations approved by the Board of Regents pursuant to this subdivision
shall continue in effect unless revoked by the Board of Regents upon recommendation of
the Commissioner after review of the registration, or the school district closes the school.
In the event that a school district closes a registered school, the school district shall inform
the Commissioner, in a form prescribed by the Commissioner and containing such
information as the Commissioner may require, no later than March 1 for schools that it
will not enroll students in September of the next successive school year, except that the
Commissioner may waive this timeline for good cause.
(e) System of accountability for student success. Each school year, commencing
with the 2017-2018 school year results, the Commissioner shall review the performance
of all public schools and school districts in the State. The Commissioner shall determine
whether such public schools shall be identified as a CSI or TSI school and/or whether
each school district shall be identified as a Target District in accordance with the
accountability criteria set forth in subdivision (f) of this section.
(f) Accountability system for schools and districts.
(1) Accountability system for elementary and middle schools.
(i) CSI school. An elementary/middle school shall be preliminarily identified as a
CSI school using the following decision table, which combines the following measures of
student performance for all students in the school: (1) Composite Performance; (2)
62

 Student Growth; (3) Combined Composite Performance and Student Growth; (4) English
Language Proficiency; (5) Academic Progress; and (6) Chronic Absenteeism. A school
shall be preliminarily identified as a CSI school if one or more of the rows in the decision
table are applicable to the school; provided that in order to be preliminarily identified using
the decision table below, a performance level must be assigned at a minimum to the
Combined Composite Performance and Student Growth measure and one or more of the
following measures: English Language Proficiency, Academic Progress, and/or Chronic
Absenteeism.
Decision

Table

for

Identification

of

Comprehensive

Support

and

Improvement

Elementary/Middle Schools

Both Level 1
Either Level 1

Combined
Composite
Performance &
Growth Level
Level 1
Level 1

Either Level 1

Level 1

English
Language
Proficiency
Level
Any Level
None*
Level 1

Level 1

Level 2

Any Level 1

Level 1

Level 3 or 4

Both Level 1

Composite
Performance
Level

Either Level 1
Either Level 1

Student
Growth
Level

Academic
Progress
Level

Chronic
Absenteeism
Level

Any Level
Any One of the Two is Level 1
Any Level

*”None” means there were not enough English language learners to meet the minimum n-size
requirement.

(a) Composite Performance Level. For each public elementary/middle school
whose all students subgroup meets the minimum n-size requirements as defined in
paragraph (1) of subdivision (b) of this section, a Composite Performance Level using the
results of ELA and Mathematics assessments in grades 3-8 and Science assessments
for grades 4 and 8 shall be computed by the Commissioner in accordance with the
following steps:

63

 (1) The Commissioner shall first determine an ELA and a Mathematics
Achievement Index for each public school in the State.

The ELA and the Math

Achievement Index is a number between 0-250 that is computed separately for ELA and
math for a subgroup by summing the number of continuously enrolled students who
scored at Level 2, plus the number of continuously enrolled students who scored at Level
3 multiplied by 2, plus the number of continuously enrolled students who scored at Level
4 multiplied by 2.5 (numerator) and dividing this result by the greater of the number of
continuously enrolled students in the subgroup with valid test scores or 95% of
continuously enrolled students (denominator). The result of this division is then multiplied
by 100.
(2) The Commissioner shall then determine a Science Achievement Index for each
public school in the State. The Science Achievement Index is a number between 0-250
that is computed for Science for a subgroup by summing the number of continuously
enrolled students who scored at Level 2, plus the number of continuously enrolled
students who scored at Level 3 multiplied by 2, plus the number of continuously enrolled
students who scored at Level 4 multiplied by 2.5 (numerator), and dividing this result by
the greater of the number of continuously enrolled students in the subgroup with valid test
scores or 95% of continuously enrolled students (denominator). The result of this division
is then multiplied by 100.
(3) The Commissioner shall then compute the Weighted Average Achievement
Index, which is a number between 0-250 that is computed as the weighted average of the
ELA, Mathematics, and Science achievement indices.
(4) The Commissioner shall then rank order schools based on their performance
on the Weighted Average Achievement Index.
64

 (5) Each elementary/middle school will then be assigned a Weighted Average
Achievement Level from 1-4 based on such rank ordering using the table below:
Weighted Average
Achievement Rank
10% or Less
10.1 to 50%
50.1 to 75%
Greater than 75%

Weighted Average
Achievement Level
1
2
3
4

(6) The Commissioner shall then compute the Core Subject Performance Index,
which is a number from 0-250 that is computed by summing for elementary/middle-level
ELA, Mathematics, and Science, the number of continuously enrolled students who
scored at Level 2, plus the number of continuously enrolled students who scored at Level
3 multiplied by 2, plus the number of continuously enrolled students who scored at Level
4 multiplied by 2.5 (numerator), and dividing this result by the number of valid test results
for continuously enrolled students in ELA, Mathematics, and Science (denominator). The
result of this division is then multiplied by 100 to determine the Index.
(7) The Commissioner shall then rank order schools by the Core Subject
Performance Index.
(8) Each elementary/middle school will then be assigned a Core Subject
Performance Level 1-4 based on such rank ordering using the table below:
Core Subject
Performance
Index Rank

Core
Subject
Performance
Level
1
2
3
4

10% or Less
10.1 to 50%
50.1 to 75%
Greater than 75%

(9) The Commissioner shall combine the results of the Weighted Average
Achievement Level as calculated in subclause (5) with the Core Subject Performance
Index Level as calculated in subclause (8) to create a Composite Performance Index.
65

 The Composite Performance Index for elementary/middle schools is a calculation by
which the results of the Weighted Average Achievement Level and the Core Subject
Performance Index Level are combined to be used as a measure of academic
achievement pursuant to subdivision (f) of this section.

Provided that, for

elementary/middle schools in the State with the same Composite Performance Index, the
Commissioner shall rank order schools using the higher of the Weighted Average
Achievement rank order as calculated in subclause (4) or the Core Subject Performance
Index rank order as calculated in subclause (7) of this clause.
(10) The Commissioner shall then assign a Composite Performance Achievement
Level from 1-4 for all schools based on the Composite Performance Index rank ordering
described in subclause (9) of this clause using the table below:
Composite
Performance Index
Rank
10% or Less
10.1 to 50%
50.1 to 75%
Greater than 75%

Composite
Performance
Level
1
2
3
4

The resulting Composite Performance Level is then used in the table described in
subparagraph (i) of paragraph (1) of subdivision (f) of this section as one of multiple
measures of performance to determine whether the school is preliminarily identified as a
CSI school.
(11) If the all students subgroup does not meet the minimum n size, as defined in
paragraph (1) of subdivision (b) of this section, then the school shall be identified using
the established process for small schools (self-assessment process), as described in
paragraph (1) of subdivision (b) of this section.

66

 (b) Student Growth Level. For each public elementary/middle school whose all
students subgroup meets the minimum n-size requirements as defined in paragraph (1)
of subdivision (b) of this section, a Student Growth Level will be determined in accordance
with the following steps:
(1) A Mean Growth Percentile for the all students subgroup in each school shall be
calculated by adding the student growth percentile scores for continuously enrolled
students in grades 4-8 ELA to the student growth percentile scores for continuously
enrolled students in grades 4-8 math for the current and the previous two school years,
and dividing the result by the total number of student growth percentile scores in those
grades/subjects and years.
(2) The Commissioner shall then create a rank ordered list of school performance
based on the school’s Mean Growth Percentile score.
(3) A Student Growth Level from 1-4 shall then be assigned to each school using
the table below:
Mean Growth
Percentile
45 or less
45.1 to 50
50.1 to 54
Greater than 54

Student Growth Level
1
2
3
4

(4) The resulting Student Growth Level is then used in the table described in
subparagraph (i) of paragraph (1) of this subdivision as one of multiple measures of
student performance to determine whether the school is preliminarily identified as a CSI
school.
(c) Combined Composite Performance and Growth Level.

For each public

elementary/middle school meeting the minimum n-size requirement as defined in
67

 paragraph (1) of subdivision (b) of this section, a Combined Composite Performance and
Student Growth Level shall be computed by the Commissioner in accordance with the
following steps:
(1) The Commissioner shall generate a combined Composite Performance and
Student Growth rank ordered list by summing a school’s Composite Performance Index
final rank order as described in subclause (9) of clause (a) of this subparagraph and the
school’s Student Growth rank order as described in clause (b) of this subparagraph.
(2) If there is no Student Growth Level for the school because the all students
subgroup did not meet the minimum n size for the Student Growth measure, then the
Combined Composite Performance and Student Growth Level shall be determined
using the Composite Performance Level only.
(3) A Combined Composite Performance and Student Growth Level from 1-4 shall
then be assigned to each school based on the school’s placement on a rank ordered list
in comparison with other schools in accordance with the following table:

Rank Based on Combined
Composite Performance and
Student Growth
In the lowest 10%
Between 10.1% and 50%
Between 50.1 and 75%
In the highest 75%

Level
1
2
3
4

(4) The resulting Combined Composite Performance and Student Growth Level
is then used in the table described in subparagraph (i) of paragraph (1) of this
subdivision as one of multiple measures of performance to determine whether the
school is preliminarily identified as a CSI school.
(d) English Language Proficiency Level. For each public elementary/middle
school meeting the minimum n-size requirements as defined in paragraph (1) of
68

 subdivision (b) of this section, the Commissioner shall compute an English Language
Proficiency Level in accordance with the following steps:
(1) The Commissioner shall first determine an initial level of proficiency and the
corresponding years that the student was identified as an English Language Learner
based upon the student’s performance on the NYSESLAT in the initial year of
identification as an English Language Learner pursuant to Part 154 of this Title.
(2) The Commissioner shall then determine progress rates for each student based
on the years that the student has been identified as an English language learner and the
level achieved on the NYSESLAT in the first year in which the student was identified as
an English Language Learner pursuant to Part 154 of this Title.
(3) The Commissioner shall then calculate each school’s success ratio based on
all continuously enrolled students’ results compared to continuously enrolled students’
progress rates, as determined by the Commissioner. Utilizing this information, each
school shall then be assigned an English Language Proficiency Level from 1-4 in
accordance with the following table:
Success
Ratio
0 - 0.49
0.50 - 0.99
1.0 - 1.24
1.25+

English Language
Proficiency Level
1
2
3
4

(5) The resulting English Language Proficiency Level is then used in the table
described in subparagraph (i) of paragraph (1) of this subdivision as one of multiple
measures of performance to determine whether the school shall be preliminarily identified
as a CSI School.

69

 (e) Academic Progress Level. For each public elementary/middle school meeting
the minimum n-size requirement as defined in paragraph (1) of subdivision (b) of this
section, the Commissioner shall compute an Academic Progress Level in accordance
with the following steps:
(1) The Commissioner shall calculate separate ELA and Mathematics Academic
Achievement Indices from 0-250 for the all students subgroup in the school.
(2) The Commissioner shall then determine a separate State MIP and Long-term
goal for ELA and Mathematics.
(3) The Commissioner shall determine a separate school MIP in ELA and in
Mathematics.
(4) The Commissioner shall then assign an Academic Progress Level in ELA from
1-4 using the table below based on each of the following: whether or not the school’s ELA
Academic Achievement Index met, exceeded, or failed to meet: (1) the State Long-term
goal, (2) the State MIP, and/or (3) the school’s MIP.
(5)

The Commissioner shall then assign an Academic Progress Level in

Mathematics from 1 to 4 using the table below based on each of the following: whether
or not the school’s Mathematics Academic Achievement Index met, exceeded, or failed
to meet: (1) the State Long-term goal, (2) the State MIP and/or, (3) the school’s MIP.
Did Not Meet Long-Term
Goal

Met Long-Term
Goal

Exceeded Long-Term
Goal

Level 1

N/A

N/A

Met lower of State
Level 2
or School MIP

Level 3

Level 4

Met higher of
State or School
MIP

Level 4

Level 4

Did not meet
either MIP

Level 3

70

 (6) The Commissioner shall then average the ELA Academic Progress Level
assigned in subclause (4) of this clause and the Mathematics Academic Progress Level
assigned in subclause (5) of this clause. The resulting average Academic Progress Level
will be rounded down to the nearest whole number that represents the level that will be
used and an Academic Progress Level from 1-4 will be assigned. The resulting Academic
Progress Level is then used in the table described in subparagraph (i) of paragraph (1) of
this subdivision as one of multiple measures of performance to determine whether the
school is preliminarily identified as a CSI School.
(7) Notwithstanding the Academic Progress Level resulting from the table above,
using the all students subgroup’s baseline performance as measured by the previous
school year test results, for purposes of the accountability designation, if the all students
subgroup does not meet the lower of the State or school MIP but increases the
Achievement Index by an amount at least equal to the difference between the higher of
the school’s current year MIP and prior year MIP or the current year State MIP and prior
year State MIP, the all students subgroup will be assigned an Academic Progress Level
2. Provided further that, if the all students subgroup meets either but not both of the
school and State MIP for that subgroup and makes progress that is equivalent to at least
three times the difference between the lower of the school specific current and prior year
MIPs and the State current and prior year MIPs for that subgroup, but if such progress is
insufficient for the subgroup to meet the higher of the State or school MIP or the Longterm goal, the all students subgroup will be assigned an Academic Progress Level 3.
(f) Chronic Absenteeism Level. For each public elementary/middle school meeting
the minimum n-size requirement pursuant to subparagraph (xvii) of paragraph (1) of

71

 subdivision (b) of this section, the Commissioner shall compute a Chronic Absenteeism
Level in accordance with the following steps:
(1) The Commissioner shall first compute the school’s Chronic Absenteeism Rate,
which means the number of students enrolled during the school year in a school for a
minimum of ten instructional days and in attendance at least one of those days who were
absent (excused or unexcused) for at least 10 percent of enrolled instructional days
divided by the total number of students enrolled during the school year, expressed as a
percentage. Suspensions are not counted as excused or unexcused absences, as
suspended students are required to be provided with instruction while they are
suspended.

At the elementary/middle level, Chronic Absenteeism is calculated for

grades 1-8 and ungraded age equivalent students.
(2) The Commissioner shall then determine a State MIP and Long-term goal for
Chronic Absenteeism.
(3) The Commissioner shall also determine a school MIP for Chronic Absenteeism.
(4) The Commissioner shall then assign a Chronic Absenteeism Level from 1-4
based on whether the school’s Chronic Absenteeism Rate, as defined in this clause met,
exceeded, or failed to meet: (1) the State Long-term goal, (2) the State MIP, and/or (3)
the school MIP. Utilizing this information, each school shall then be assigned a Chronic
Absenteeism Level from 1-4 in accordance with the following table:
Did Not Meet Long-Term
Goal

Met Long-Term
Goal

Exceeded Long-Term
Goal

Did not meet
either MIP

Level 1

N/A

N/A

Met lower MIP

Level 2

Level 3

Level 4

Met higher MIP

Level 3

Level 4

Level 4

72

 (5) The resulting Chronic Absenteeism Level is then used in the table described in
subparagraph (i) of paragraph (1) of this subdivision as one of multiple measures of
performance to determine whether the school is preliminarily identified as a CSI school.
(6) Notwithstanding the Chronic Absenteeism Level generated by the table above,
for purposes of the accountability designation, if the all students subgroup does not meet
the lower of the State or school MIP but decreases the Chronic Absenteeism Rate by an
amount equal to the difference between the lower of the school’s current year MIP and
prior year MIP or the current year State MIP and prior year MIP for the all students
subgroup, the all students subgroup will be assigned a Chronic Absenteeism Level 2.
Provided further that, if the all students subgroup meets either but not both the school
and State MIP for that subgroup and makes progress in decreasing the Chronic
Absenteeism Rate that is equivalent to three times the difference between the lower of
the school specific current and prior year MIP and the State current and prior year MIP
for the all students subgroup, but if such progress is insufficient for the all students
subgroup to meet the more rigorous of the State or school MIP or the State Long-term
goal, the all students subgroup will be assigned a Chronic Absenteeism Level 3.
(7) Provided further that, notwithstanding the Chronic Absenteeism Level
determined pursuant to paragraphs (4), (5) and (6), the Commissioner may assign a
Chronic Absenteeism Level 1 to an all students subgroup whose chronic absenteeism
rate is below a percent established by the Commissioner and the Commissioner may
assign a Chronic Absenteeism Level 2 to an all students subgroup whose chronic
absenteeism rate is at or above a percent established by the Commissioner.
(g) For feeder schools: The Weighted Average Achievement Index and Level, the
Core Subject Performance Index and Level, the Composite Performance Index and Level,
73

 and the Academic Progress Level of public schools, school districts, and charter schools
serving grades 1 and/or 2, but not grade 3 or higher (hereafter referred to as "feeder
schools") will be determined using backmapping. In school districts with such feeder
schools and in school districts that accept grade 3 students from feeder schools in other
school districts by contract, the grade 3 State assessment results for each feeder school
student will be attributed to the feeder school as well as to the school in which the student
took the assessment. The student’s results will be attributed to a feeder school only if the
student was continuously enrolled in the feeder school from BEDS day until the end of
the school year in the highest grade served by the feeder school. For feeder schools, the
Combined Composite Performance and Growth Level will be determined using the
Elementary/Middle-Level ELA and Math Composite Performance Level only.
(ii) Targeted Support and Improvement (TSI) Elementary/Middle Schools.

An

elementary/middle school shall be preliminarily identified as a TSI school if the school
meets the criteria for identification outlined in the table below for two consecutive school
years for the same accountability subgroup, except that a school identified as a Priority
or Focus School during the 2017-2018 school year may be identified, using 2017-2018
school year data only, if such school meets the criteria for identification as a TSI school
beginning with the 2018-2019 school year.
(a) The decision table below combines multiple measures of performance for
accountability subgroups in the school using the same methodology used to designate
CSI schools pursuant to subparagraph (i) of this paragraph and using the following
accountability measures: (1) Composite Performance; (2) Student Growth; (3) Combined
Composite Performance and Student Growth; (4) English Language Proficiency; (5)
74

 Academic Progress; and (6) Chronic Absenteeism.
(b) The designations for TSI schools shall be based on the performance of
accountability subgroups, as defined in paragraph (1) of subdivision (b) of this section
and shall not include the performance of the all students accountability subgroup;
provided that, in order to be preliminarily identified using the decision table below, a
performance level must be assigned to, at a minimum, the Combined Composite
Performance and Student Growth measure and one or more of the following measures:
English Language Proficiency, Academic Progress, and/or Chronic Absenteeism.
Decision Table for Identification of Targeted Support and Improvement Elementary/Middle
Schools

Both Level 1

Combined
Composite
Performance &
Growth Level
Level 1

Either Level 1

Level 1

Either Level 1
Either Level 1
Either Level 1

Level 1
Level 1
Level 1

Composite
Performance
Level

Student
Growth
Level

English
Language
Proficiency
Level
Any Level
None*
Level 1
Level 2
Level 3 or 4

Academic
Progress
Level

Chronic
Absenteeism
Level

Any Level
Any One of the Two is
Level 1
Any Level
Any Level 1
Both Level 1

*”None” means there were not enough English Language learners to meet the minimum n size
requirement.

(c) If a school meets the identification criteria for both a CSI and TSI school, the
school shall be designated as a CSI school; provided however that if in the year in which
a CSI school is removed from CSI identification and such school meets the criteria for a
TSI school, the school shall be designated as a TSI school.
(d) When the Commissioner creates a rank ordered list for the racial/ethnic
subgroup for purposes of identification of TSI schools, one rank ordered list will be
75

 generated for all racial/ethnic groups combined.
(iii) TSI schools identified for additional support.
(a) Beginning with the 2018-2019 school year, for each year in which the
Commissioner identifies CSI schools based on the performance of the all students
subgroup in accordance with subparagraph (i) of paragraph (1) of subdivision (f) of this
section, the Commissioner shall identify for additional targeted support any TSI school
with a subgroup whose performance would have caused the school to be identified as a
CSI school using the methods for identification specified in subdivision (f) of this section.
(b) Such school shall be identified for additional targeted support only if the school
had been identified as a TSI school in the prior school year and remains so identified in
the current school year.
(c) Notwithstanding the provisions of clause (a) of this subparagraph, in assigning
Performance Levels for the purpose of determining whether the performance of a
subgroup in a TSI school would have caused the school to be identified as a CSI school,
the Commissioner shall:
(1) Assign to the subgroup the Weighted Average Achievement Level that would
have been assigned to the all students subgroup with the same Weighted Average
Achievement Index for purposes of identifying CSI schools.
(2) Assign to the subgroup the Core Subject Performance Index Level that would
have been assigned to the all students subgroup with the same Core Subject
Performance Index for purposes of identifying CSI schools.

76

 (3) Assign to the subgroup the Composite Performance Achievement Level that
would have been assigned to the all students subgroup with the same Weighted Average
Achievement Level, Weighted Average Achievement Index ranking, Core Subject
Performance Index Level and Core Subject Performance Index ranking for purposes of
identifying CSI schools.
(4) Assign to the subgroup the Student Growth Level that would have been
assigned to the all students subgroup with the same Mean Student Growth Percentile for
purposes of identifying CSI schools.
(5) Assign to the subgroup the Combined Composite Performance and Student
Growth Level that would have been assigned to the all students subgroup with the same
Combined Composite Performance and Growth rank for purposes of identifying CSI
schools.
(6) For measures of English Language Proficiency; Academic Progress; and
Chronic Absenteeism as defined in subdivision (b) of this section, the Commissioner shall
use the State MIP and State Long-term goal applicable to the all students subgroup to
determine the subgroup’s performance level on these measures.
(2) Accountability system for high schools.
(i) CSI schools. A high school shall be preliminarily identified as a CSI school using
the following decision table, which combines multiple measures of performance for all
students in the school, as defined in paragraph (1) of subdivision (b) of this section, using
the following accountability measures: (1) Composite Performance; (2) Graduation Rate;
(3) Combined Composite Performance and Graduation Rate; (4) English Language
Proficiency; (5) Academic Progress; (6) Chronic Absenteeism; and (7) College, Career,
and Civic Readiness; provided that in order to be preliminarily identified using the decision
77

 table below a performance level must be assigned to, at a minimum, the Combined
Composite Performance and Graduation Rate measure and one or more of the following
measures: English Language Proficiency; Academic Progress; Chronic Absenteeism;
and/or College, Career, and Civic Readiness (“CCCR”). A school shall be preliminarily
identified as a CSI school if it meets any of the conditions in the rows of the decision table
below. Provided, however, that notwithstanding the table below, beginning with 20172018 school year graduation results, any public high school with a Four-Year Graduation
Rate below 67 percent and a Five-Year or Six-Year Graduation Rate that is not at or
above 67 percent will be preliminarily identified as a CSI school.
Decision Table for Identification of Comprehensive Support and Improvement High Schools

Composite
Performance
Level

Grad
Rate
Level

Combined
Composite
Performance &
Grad Rate Level

Both Level 1

Level 1

Either Level 1
Either Level 1
Either Level 1

Level 1
Level 1
Level 1

Either Level 1

Level 1

ELP
Level

Progress
Level

Any
Level
None*
Level 1
Level 2
Level 3
or 4

Any Level

Chronic
Absenteeism
Level

CCCR
Level

Any One of the Three is Level 1
Any Level
Any Level 1
Any Two Level 1

*“None” means there were not enough English Language Learners to meet the minimum n-size
requirement.

(a) Composite Performance Level. For each public high school whose all students
group, as an accountability subgroup defined in subparagraph (x) of paragraph (1) of
subdivision (b) of this section, meets the minimum n-size requirements pursuant to
paragraph (1) of subdivision (b) of this section, a Composite Performance Level using the
results of the ELA, Mathematics, Science, and Social Studies assessments for the

78

 Accountability Cohort shall be computed by the Commissioner in accordance with the
following steps:
(1) The Commissioner shall first calculate a Performance Index separately for ELA,
Mathematics, Science, and Social Studies at the secondary level using the following
formula for each subject:
(i) The sum of the number of students in the Accountability Cohort who scored at
Level 2, plus the number who scored at Level 3 multiplied by 2, plus the number who
scored at Level 4 multiplied by 2.5 (numerator), divided by the number of students in the
Accountability Cohort as defined in paragraph (2) of subdivision (b) of this section
(denominator). The result of this division is then multiplied by 100 to establish the
Performance Index for each subject area.
(2) The Commissioner shall then combine the Performance Indices for ELA,
Mathematics, Science, and Social Studies to calculate a Composite Performance Index
in accordance with the following formula:
(i) The sum of the ELA Performance Index multiplied by three, plus the result of
the Mathematics Performance Index multiplied by three, plus the result of the Science
Performance Index multiplied by two, plus the result of the Social Studies Performance
Index multiplied by one, divided by the sum of the multipliers used to make this
calculation.
(3) The Commissioner shall then rank order schools based on their Composite
Performance Index in accordance with subclause (2) of this clause, except that upon a
finding of extenuating or extraordinary circumstances, the Commissioner may in creating
the rank ordered list exclude from the rankings those schools that meet the criteria
established in subparagraphs (vii) and (xviii) of paragraph (b) of this section as well
79

 as schools that are implementing a plan for school closure or phase out that has been
approved by the Commissioner.
(4) The Commissioner shall then assign a Composite Performance Achievement
Level for all schools based on the rank ordering described in subclause (3) of this clause
using the table below:

Composite
Performance
Index Rank
10% or Less
10.1 to 50%
50.1 to 75%
Greater than
75%

Composite
Performance
Achievement
Level
1
2
3
4

*”The Commissioner may exclude from the rank ordered list schools defined in subparagraph (vii) of
paragraph (1) of subdivision (b) of this section or schools defined in subdivision 8 of section 4001 of
the Education Law.

The resulting Composite Performance Achievement Level is then used in the table
described in subparagraph (i) of paragraph (2) of this subdivision as one of multiple
measures of performance to determine whether the school shall be preliminarily identified
as a CSI school.
(5) If the all students subgroup does not meet the minimum n size for the
Composite Performance Achievement Level, as defined in paragraph (1) of subdivision
(b) of this section, then the school shall be identified using the established selfassessment process, as described in paragraph (1) of subdivision (b) of this section.
(b) Graduation Rate Level. For each public high school meeting the minimum nsize requirement pursuant to paragraph (1) of subdivision (b) of this section, the
Commissioner shall compute a Graduation Rate Level for the Four-Year, Five-Year, and
Six-Year Graduation Rate, as applicable in accordance with the following steps:
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 (1) The Commissioner shall first determine a State MIP and Long-term goal based
on the State Four-Year, Five-Year, and Six-Year Graduation Rate.
(2) The Commissioner shall also determine a school MIP based on the school’s
Four-Year, Five-Year, and Six-Year Graduation Rate.
(3) The Commissioner shall then assign a Graduation Rate Level from 1 to 4 based
on the average of the school’s Four-Year, Five-Year and Six-Year Graduation Rates, as
available, based on whether or not the school met, exceeded, or failed to meet each of
the following: (1) the State Long-term goal, (2) the State MIP, and/or (3) the school MIP
for the Four-Year, Five-Year, and Six-Year Graduation Rate in accordance with the
following table:
Did Not Meet Long-Term
Goal

Met Long-Term
Goal

Exceeded Long-Term
Goal

Did not meet
either MIP

Level 1

N/A

N/A

Met lower MIP

Level 2

Level 3

Level 4

Met higher MIP

Level 3

Level 4

Level 4

(4) The Commissioner shall then average the Four-Year, Five-Year, and Six-Year
Graduation Rate Level, as applicable to the school. The resulting average Graduation
Rate Level will be rounded to the nearest level for a Graduation Rate Level from 1-4.
(5) The resulting Graduation Rate Level is then used in the table described in
subparagraph (i) of paragraph (2) of this subdivision as one of multiple measures of
performance to determine whether the school is preliminarily identified as a CSI school.
(6) After the Graduation Rate Level has been assigned to the school, the
Commissioner shall create a Graduation Rate rank order list by first rank ordering schools

81

 by Graduation Rate Level and then rank ordering schools by their average Graduation
Rate within each level.
(7) Provided, however, that notwithstanding the table above, any public high
school with a graduation rate of 67 percent or below on the Four-Year Graduation Rate
cohort that does not have a Five-Year or Six-Year Graduation Rate Cohort at or above
67 percent shall be preliminarily identified as a CSI school.
(8) Provided further that, notwithstanding the Graduation Rate Level generated by
the table above, for purposes of the accountability designation, if the all students
subgroup does not meet the lower of the State or school MIP but increases the graduation
rate by an amount at least equal to the difference between the lower of the school’s
current year MIP and prior year MIP or the State’s current year MIP and prior year MIP
for the all students subgroup, the all students subgroup will be assigned a Graduation
Rate Level 2. Provided further that, if the all students subgroup meets either but not both
of the school and State MIP for the all students subgroup and makes progress that is at
least equal to three times the difference between the lower of the school-specific current
and prior year MIPs and the State’s current and prior year MIPs for the all students
subgroup, but if such progress is insufficient for the all students subgroup to meet the
higher of the State or school MIP or the Long-term goal, the all students subgroup will be
assigned a Graduation Rate Level 3.
(9) Provided further that, notwithstanding the Graduation Rate Level determined
pursuant to paragraphs (7) and (8), the Commissioner may assign a Graduation Level 1
to an all students subgroup whose unweighted average Four-Year, Five-Year, and SixYear graduation rates are below a percent established by the Commissioner and the
Commissioner may assign a Graduation Level 2 to an all students subgroup whose
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 unweighted average Four-Year, Five-Year, and Six-Year graduation rates is at or above
a percent established by the Commissioner.
(c) Combined Composite Performance and Graduation Rate Level. For each
public high school meeting the minimum n-size requirement as defined in paragraph (1)
of subdivision (b) of this section, a Combined Composite Performance and Graduation
Rate Level shall be computed by the Commissioner in accordance with the following
steps:
(1) The Commissioner shall generate a combined Composite Performance and
Graduation Rate rank ordered list by summing a school’s Composite Performance Index
rank order, as described in clause (a) of this subparagraph, and the school’s Graduation
Rate rank order as described in clause (b) of this subparagraph.
(2) A Combined Composite Performance and Graduation Rate Level from 1-4 shall
then be assigned to each school based on the school’s Combined Composite
Performance and Graduation Rate ranking in accordance with the following table.
Rank Based on Combined
Composite Performance and
Graduation Rate Rankings
In the lowest 10%
Between 10.1% and 50%
Between 50.1 and 75%
In the highest 75%

Combined Composite
Performance & Graduation
Rate Level
1
2
3
4

*”The Commissioner may exclude from the rank ordered list schools defined in subparagraph (vii) of
paragraph (1) of subdivision (b) of this section or schools defined in subdivision 8 of section 4001 of
the Education Law.

(3) The resulting Combined Composite Performance and Graduation Rate
Level shall then be used in the table described in subparagraph (i) of paragraph (2) of
this subdivision as one of multiple measures of performance to determine whether the
school is preliminarily identified as a CSI school; provided that if the all students
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 subgroup does not meet the minimum n size for the Graduation Rate measure, as
defined in paragraph (1) of subdivision (b) of this section, then the Combined
Composite Performance and Graduate Rate Level will be determined using the
Composite Performance Level only.
(d) English Language Proficiency Level. For each public high school meeting the
minimum n-size requirements as defined in paragraph (1) of subdivision (b) of this
section, the Commissioner shall compute an English Language Proficiency Level in
accordance with the following steps:
(1) The Commissioner shall first determine an initial level of proficiency and the
corresponding years that the student was identified as an English Language Learner
based upon the student’s performance on the NYSESLAT in the initial year of
identification as an English Language Learner pursuant to Part 154 of this Title.
(2) The Commissioner shall then determine progress rates for each student based
on the years identified as an English language learner and the level achieved on the
NYSESLAT in the first year in which the student was identified as an English Language
Learner pursuant to Part 154 of this Title.
(3) The Commissioner shall then calculate each school’s success ratio based on
all continuously enrolled students’ results compared to the continuously enrolled students’
progress rates, as determined by the Commissioner. Utilizing this information, each
school shall then be assigned an English Language Proficiency Level from 1-4 in
accordance with the following table:
Success Ratio
0 - 0.49
0.50 - 0.99
1.0 - 1.24
1.25+

84

English Language
Proficiency Level
1
2
3
4

 (4) The resulting English Language Proficiency Level is then used in the table
described in subparagraph (i) of paragraph (1) of this subdivision as one of multiple
measures of performance to determine whether the school shall be preliminarily identified
as a CSI school.
(e) Academic Progress Level. For each public high school meeting the minimum
n-size requirement as defined in paragraph (1) of subdivision (b) of this section, the
Commissioner shall compute an Academic Progress Level in accordance with the
following steps:
(1) The Commissioner shall calculate separate ELA and Mathematics Academic
Achievement Indices from 0-250 for the all students subgroup in the school.
(2) The Commissioner shall then determine a separate State MIP and Long-term
goal for ELA and Mathematics.
(3)

The Commissioner shall determine a separate school MIP in ELA and

Mathematics.
(4) The Commissioner shall then assign an Academic Progress Level in ELA from
1-4 using the table below based on each of the following: whether or not the school’s ELA
Academic Achievement Index met, exceeded, or failed to meet: (1) the State Long-term
goal, (2) the State MIP, and/or (3) the school’s MIP.
(5)

The Commissioner shall then assign an Academic Progress Level in

Mathematics from 1-4 using the table below based on whether the school’s Mathematics
Academic Achievement Index met, exceeded, or failed to meet: (1) the State Long-term
goal, (2) the State MIP, and/or (3) the school MIP.

85

 Did Not Meet Long-Term
Goal

Met Long-Term
Goal

Exceeded Long-Term
Goal

Did not meet either
Level 1
MIP

N/A

N/A

Met lower of State
Level 2
or School MIP

Level 3

Level 4

Met higher of State
Level 3
or School MIP

Level 4

Level 4

(6) The Commissioner shall then average the ELA Academic Progress Level
assigned in subclause (4) of this clause and the Mathematics Academic Progress Level
assigned in subclause (5) of this clause. The resulting average Academic Progress Level
will be rounded down to the nearest whole number that represents the level that will be
used and an Academic Progress Level from 1-4 will be assigned. The resulting Academic
Progress Level is then used in the table described in subparagraph (i) of paragraph (1) of
this subdivision as one of multiple measures of performance to determine whether the
school is preliminarily identified as a CSI school.
(7) Notwithstanding the Academic Progress Level resulting from the table above,
using the all students subgroup’s baseline performance as measured by the previous
school year test results, for purposes of the accountability designation, if the all students
subgroup does not meet the lower of the State or school MIP but increases the
Achievement Index by an amount at least equal to the difference between the higher of
the school’s current year MIP and prior year MIP or the current year State MIP and prior
year State MIP, the all students subgroup will be assigned an Academic Progress Level
2. Provided further that, if the all students subgroup meets either but not both of the
school and State MIPs for that subgroup and makes progress that is equivalent to at least
three times the difference between the lower of the school-specific current and prior year
MIPs and the State current and prior year MIPs for that subgroup, but if such progress is
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 insufficient for the subgroup to meet the higher of the State or school MIP or the Longterm goal, the all students subgroup will be assigned an Academic Progress Level 3.
(f) Chronic Absenteeism Level. For each public high school meeting the minimum
n-size requirement pursuant to paragraph (1) of subdivision (b) of this section, the
Commissioner shall compute a Chronic Absenteeism Level in accordance with the
following steps:
(1) The Commissioner shall first compute the school’s Chronic Absenteeism Rate,
which means the number of students enrolled during the school year in a school for a
minimum of ten instructional days and in attendance at least one of those days who were
absent (excused or unexcused) for at least 10 percent of enrolled instructional days
divided by the total number of students enrolled during the school year, expressed as a
percentage. Suspensions are not counted as excused or unexcused absences, as
suspended students are required to be provided with instruction while they are
suspended. At the high school level, chronic absenteeism is calculated for grades nine12 and ungraded age equivalent students.
(2) The Commissioner shall then determine a State MIP and Long-term goal for
Chronic Absenteeism.
(3) The Commissioner shall also determine a school MIP for Chronic Absenteeism.
(4) The Commissioner shall then assign a Chronic Absenteeism Level from 1-4
based on whether the school’s Chronic Absenteeism Rate, as defined in this clause met,
exceeded, or failed to meet: (1) the State Long-term goal, (2) the State MIP, and/or (3)
the school MIP. Each school shall then be assigned a Chronic Absenteeism Level from
1-4 in accordance with the following table:

87

 Did Not Meet Long-Term Met
Goal
Goal
Did
not
either MIP

meet

Long-Term Exceeded
Goal

Level 1

N/A

N/A

Met lower MIP

Level 2

Level 3

Level 4

Met higher MIP

Level 3

Level 4

Level 4

Long-Term

(5) The resulting Chronic Absenteeism Level is then used in the table described
in subparagraph (i) of paragraph (1) of this subdivision as one of multiple measures of
performance to determine whether the school is preliminarily identified as a CSI school.
(6) Notwithstanding the Chronic Absenteeism Level generated by the table above,
for purposes of the accountability designation, if the all students subgroup does not meet
the lower of the State or school MIP but decreases the Chronic Absenteeism Rate by an
amount equal to the difference between the lower of the school’s current year MIP and
prior year MIP or the current year State MIP and prior year MIP for the all students
subgroup, the all students subgroup will be assigned a Chronic Absenteeism Level 2.
Provided further that, if the all students subgroup meets either but not both the school
and State MIP for that subgroup and makes progress toward decreasing the Chronic
Absenteeism Rate that is equivalent to three times the difference between the lower of
the school specific current and prior year MIP and the State current and prior year MIP
for the all students subgroup, but if such progress is insufficient for the all students
subgroup to meet the higher of the State or school MIP or the State Long-term goal, the
all students subgroup will be assigned a Chronic Absenteeism Level 3.
(7) Provided further that, notwithstanding the Chronic Absenteeism Level
determined pursuant to paragraphs (4), (5) and (6), the Commissioner may assign a
Chronic Absenteeism Level 1 to an all students subgroup whose chronic absenteeism
rate is below a percent established by the Commissioner and the Commissioner may
88

 assign a Chronic Absenteeism Level 2 to an all students subgroup whose chronic
absenteeism rate is at or above a percent established by the Commissioner.
(g) College, Career, and Civic Readiness Level. For each public high school
meeting the minimum n-size requirement pursuant to paragraph (1) of subdivision (b) of
this section, the Commissioner shall compute a College, Career, and Civic Readiness
Index.
(1) The Index is calculated using the number of students in the 4-Year Graduation
Rate Cohort as of June 30 of the reporting year plus any members of the English language
learner subgroup who earn a Regents Diploma with a Seal of Biliteracy who are not
members of the 4-Year Graduation Rate Cohort as the denominator.
(2) The numerator is the number of these students demonstrating success on
specific college, career, and civic readiness using specific measures multiplied by the
weighting (0.5 to 2.0) assigned to each of these measures in accordance with table below
plus the number of students who earned a High School Equivalency diploma in the current
reporting year and students who were members of the English language learner subgroup
at the time of graduation who earned a Regents Diploma with a Seal of Biliteracy in the
reporting year, regardless of whether or not they were in the 4-year Graduation Rate
Cohort.
In accordance with the provisions of Section 100.5 of this Part:
Regents Diploma with Advanced Designation
Regents or Local Diploma with CTE Technical Endorsement
Regents Diploma with Seal of Biliteracy
Regents Diploma and score of 3 or higher on an Advanced Placement exam
Regents Diploma and score of 4 or higher on an International Baccalaureate exam
Regents or Local Diploma and the passage of nationally certified Career and Technical
Education (CTE) examination
Regents Diploma and high school credit earned through participation in dual enrollment (in
high school and accredited college) course

89

2.0

 Skills and achievement commencement credential as provided in section 100.6(a) of this Part
and a Level 4 on the New York State Alternate Assessment for students with disabilities as
defined in section 100.1(t)(2)(iv) of this Part.
Annual ELL and earned Regents with Seal of Biliteracy in current reporting year and not in 4year graduation-rate cohort
In accordance with the provisions of Section 100.5 of this Part:
Regents Diploma and high school credit earned through participation in an Advanced
Placement course
Regents Diploma and high school credit earned through participation in an International
Baccalaureate course
Regents Diploma with Career Development and Occupational Studies (CDOS) endorsement
Skills and achievement commencement credential as provided in section 100.6(a) of this Part
and Level 3 on the New York State Alternate Assessment for students with disabilities as
defined in section 100.1(t)(2)(iv) of this Part.
Regents or Local Diploma only in accordance with provisions of section 100.5 of this Part
Skills and achievement commencement credential as provided in section 100.6(a) of this Part
and an achievement Level 2 on the NYSAA
Annual high school equivalency diploma recipients
(included in numerator but not denominator)
New York State career development and occupational studies commencement credential as
provided in section 100.6(b) of this Part.
No high school diploma or high school equivalency diploma.

1.5

1.0

0.5

0

To determine the College, Career, and Civic Readiness Index, the numerator is divided
by the denominator, and the result is multiplied by 100.
(3) The Commissioner shall then assign a College, Career, and Civic Readiness
Level from 1 to 4 based on the table below and whether or not the College, Career, and
Civic Readiness Index met, exceeded, or failed to meet each of the following: (1) the State
Long-term goal, (2) the State MIP, and/or (3) the school MIP.

Did Not Meet Long-Term
Goal

Met Long-Term
Goal

Exceeded Long-Term
Goal

Did not meet
either MIP

Level 1

N/A

N/A

Met lower MIP

Level 2

Level 3

Level 4

Met higher MIP

Level 3

Level 4

Level 4

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 (4) The resulting College, Career, and Civic Readiness Level is then used in the
table described in subparagraph (i) of paragraph (2) of this subdivision as one of multiple
measures of performance to determine whether the school is preliminarily identified as a
CSI school.
(5) Notwithstanding the College, Career, and Civic Readiness Level generated by
the table above, using the all students subgroup’s baseline performance as measured by
the previous school year test results, for purposes of the accountability designation, if the
all students subgroup does not meet the lower of the State or school MIP but increases
the College, Career, and Civil Readiness Index by an amount at least equal to the
difference between the higher of the school’s current year MIP and prior year MIP or the
State current year MIP and prior year MIP, the all students subgroup will be assigned a
College, Career, and Civic Readiness Level 2. Provided further that, if the all students
subgroup meets either but not both of the school and State MIP for that subgroup and
makes progress that is equivalent to at least three times the difference between the lower
of the school-specific current and prior year MIPs and the State current and prior year
MIPs for that subgroup, but if such progress is insufficient for the subgroup to meet the
higher of the State or School MIP or the Long-Term Goal, the all students subgroup will
be assigned a College, Career, and Civic Readiness Level 3.
(6) Provided further that, notwithstanding the College, Career, and Civic Readiness
Level determined pursuant to paragraph (3), (4), and (5), the Commissioner may assign
a College, Career, and Civic Readiness Level 1 to an all students subgroup whose
College, Career, and Civic Readiness Index is below a benchmark established by the
Commissioner and the Commissioner may assign a College, Career, and Civic
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 Readiness Level 2 to an all students subgroup whose College, Career, and Civic
Readiness Index is at or above a benchmark established by the Commissioner.
(ii) Targeted Support and Improvement High Schools. A high school shall be

preliminarily identified as a TSI school if the school meets the criteria for identification
outlined in the table below for two consecutive school years for the same accountability
subgroup, except that a school identified as a Priority or Focus School during the 20172018 school year may be identified, using 2017-2018 school year data only, if such school
meets the criteria for identification as a TSI school beginning with the 2018-2019 school
year.
(a) The decision table below combines multiple measures for accountability
subgroups in the school using the same methodology used to designate CSI schools
pursuant to subparagraph (i) of this paragraph and using the following accountability
measures: (1) Composite Performance; (2) Graduation Rate; (3) Combined Composite
Performance and Graduation Rate; (4) English Language Proficiency; (5) Academic
Progress; (6) Chronic Absenteeism; and (7) College, Career, and Civic Readiness.
(b) The designations for TSI schools shall be based on the performance of
accountability subgroups, as defined in paragraph (1) of subdivision (b) of this section
and shall not include the performance of the all students accountability subgroup;
provided that in order to be preliminarily identified using the decision table below a
performance level must be assigned to, at a minimum, the Combined Composite
Performance and Graduation Rate measure and one or more of the following measures:
English Language Proficiency; Academic Progress; Chronic Absenteeism; and/or
College, Career, and Civic Readiness.
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 Decision Table for Identification of Targeted Support and Improvement High Schools

Combined
English
Composite
Chronic
Language
Progress
CCCR
Performance &
Absenteeism
Proficiency Level
Level
Graduation Rate
Level
Level
Level
Both Level 1
Level 1
Any Level
Any Level
Either Level 1
Level 1
None*
Any One of the Three is Level 1
Either Level 1
Level 1
Level 1
Any Level
Either Level 1
Level 1
Level 2
Any Level 1
Either Level 1
Level 1
Level 3 or 4
Any Two Level 1
*“None” means that there are not a sufficient number of English Language Learners to meet the
minimum n-size requirement.
Composite
Performance
Level

Graduati
on Rate
Level

(c) If a high school meets the identification criteria for both a CSI and TSI school,
the high school shall be designated as a CSI school; provided however that if in the year
in which a CSI school is removed from CSI identification and such school meets the
criteria for a TSI school, the school shall be designated as a TSI school.
(d) When the Commissioner creates a rank ordered list for the racial/ethnic
subgroup for purposes of identification of a TSI school, one rank ordered list will be
generated for all racial/ethnic groups combined.
(iii) TSI High Schools identified for additional support.
(a) Beginning with the 2018-2019 school year, for each year in which the
Commissioner identifies CSI schools based on the performance of the all students
subgroup in accordance with subparagraph (i) of paragraph (1) of subdivision (f) of this
section, the Commissioner shall identify for additional targeted support any TSI high
school with a subgroup whose performance would have caused the school to be identified
as a CSI school using the methods for identification specified in subdivision (f) of this
section.
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 (b) Such high school shall be identified for additional targeted support only if the
school had been identified as a TSI school in the prior school year and remains so
identified in the current school year.
(c) Notwithstanding the provisions of clause (a) of this subparagraph, in assigning
Performance Levels for the purpose of determining whether the performance of a
subgroup in a TSI school would have caused the school to be identified as a CSI school,
the Commissioner shall:
(1) Assign to the subgroup the Composite Performance Level that would have
been assigned to the all students subgroup with the same Composite Performance Index
for purposes of identifying CSI schools.
(2) Assign to the subgroup the Combined Composite Performance and Graduation
Rate Level that would have been assigned to the all students subgroup with the same
Combined Composite Performance and Graduation Rate ranking for purposes of
identifying CSI schools.
(3) For the Graduation Rate, Academic Progress, Chronic Absenteeism, and the
College, Career, and Civil Readiness measures, the Commissioner shall use the State
MIPs and Long-term goals applicable to the all students subgroup to determine the
subgroup’s levels on these indicators.
(3) Target Districts.
(i) Any school district with one or more CSI or TSI schools identified pursuant to
the provisions of this section shall be identified as a Target District.
(ii) Notwithstanding any other provision of this section to the contrary, the
Commissioner shall apply the accountability measures for identification as a CSI or TSI
94

 school to the school district as a whole, and if such district meets the criteria for
identification as a CSI or TSI school, the district shall be identified as a Target District in
accordance with the timelines and procedures prescribed in this section for identification
of CSI schools and TSI schools.
(g) For each school preliminarily identified as a TSI school or CSI school, and for
each school district preliminarily identified as a Target District pursuant to subdivision (f)
of this section, the school district or charter school shall be given the opportunity to
present to the Commissioner additional data and/or any relevant information concerning
extenuating or extraordinary circumstances faced by the school or district that should be
cause for the Commissioner not to identify the school as a CSI or TSI school or the district
as a Target District.
(h) Public notification of identification as a CSI or TSI school or a Target District.
(1) Upon receipt of a designation as a CSI or TSI school or Target District, the
board of education (in New York City, the chancellor or the chancellor’s designee) or
charter school board of trustees shall take appropriate action to notify the general public
of the issuance of such designation. Such action shall include, but not be limited to, direct
notification, within 30 days of receipt of the Commissioner’s designation, in English and
translated, when appropriate and to the extent practicable for the most frequently used
languages in the district, into the recipient’s native language or mode of communication,
to persons in parental relation of children attending the school that it has been designated
as a CSI or TSI school, or Target District and disclosure of such designation by the school
district at the next public meeting of the local board of education or by the charter school
board of trustees at the next public meeting.

95

 (2) Each school year during which a school remains identified as a CSI or TSI
school or Target District, by June 30th or at the time of a student's initial application or
admission to the school, whichever is earliest, the board of education or charter school
board of trustees shall provide direct notification to parents or other persons in parental
relation to children attending the school or district, as applicable, that the school or district
remains a CSI or TSI school or Target District, as applicable. Such notification shall
include a summary of the actions that the school district and school are taking to improve
student results and an explanation of any district programs of choice, magnet programs,
transfer policies, or other options that a parent or a person in parental relation may have
to place the child in a different public school within the school district. Such notification
shall include the timelines and process for parents exercising their rights to school choice.
(3) Notwithstanding the provisions of paragraphs (1) or (2) of this subdivision, in
the event that a CSI school has been identified as a struggling school or a persistently
struggling school pursuant to section 100.19 of this Part and/or a school under registration
review pursuant to this section, the district may use a single notification to fulfill the annual
public notification requirements of this section and section 100.19(c)(1)(ii) of this Part.
(i) Interventions. Beginning with accountability designations made on or after July
1, 2018, all CSI and TSI schools and Target Districts shall implement all interventions
applicable to such designations under this subdivision. Provided, however, that a charter
school identified as a CSI or TSI school shall not be required to implement the
interventions applicable to the school accountability designation pursuant to this
subdivision and, in lieu of such interventions, such identified charter school shall take
such actions as are required by its charter authorizer pursuant to Article 56 of the
Education Law consistent with the charter agreement that each charter school has with
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 its charter authorizer. Provided further, however, that any school identified as of June 30,
2018 as a priority or focus school pursuant to section 100.18 of this Part shall implement
a school comprehensive education plan in the 2018-2019 school year that meets the
requirements for such plan as specified in section 100.18 of this Part. Provided further
that any school required to offer public school choice prior to July 1, 2018 pursuant to
section 100.18 of this Part shall continue to permit any students to remain in the school
to which they have transferred and provide transportation until such students have
completed the highest grade level in the school to which such students have transferred,
in the manner required by the provisions of section 120.3 of this Part.
(1) Interventions for CSI Schools.
(i) In the first school year in which the school is identified as a CSI school, the
school must:
(a) participate in a comprehensive needs assessment conducted in accordance
with subparagraph (ii) of paragraph (4) of subdivision (b) of this section;
(b) develop, in consultation with parents, school staff, and other stakeholders
pursuant to section 100.11 of this Part, a school comprehensive education plan as defined
in subparagraph (viii) of paragraph (4) of subdivision (b) of this section. Such plan shall:
(1) be formally approved by the board of education (in New York City, approved by
the chancellor or chancellor’s designee) and submitted for approval to the Commissioner
by July 1 of the school year in which the plan is required to be implemented;
(2) be implemented no later than the first day of regular student attendance of the
next school year after the school year in which the school was identified;
(3) be updated annually and incorporate the findings of the comprehensive needs
assessment or progress needs assessment as applicable, and be implemented no later
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 than the first day of regular student attendance of each year that the school remains a
CSI school;
(4) be made widely available through public means by either posting on the
district’s or school’s website, if one exists, or displayed conspicuously within the school,
according to such timeline as may be prescribed by the Commissioner;
(5) be developed in consultation with parents, school staff, and others pursuant to
section 100.11 of this Part; and
(6) include a description of the goals, targets, and activities, and include timelines
for the implementation of school-level evidence-based interventions and job-embedded
professional development as defined in subparagraphs (v) and (ix) and of paragraph (4)
of subdivision (b) of this section.
(c) limit incoming teachers transfers to teachers rated effective or highly effective
pursuant to Education Law §3012-d by a school district in the previous school year,
subject to collective bargaining as required under article 14 of the Civil Service Law, and
require that any successor collective bargaining agreement authorize such transfers
unless otherwise prohibited by law;
(d) establish a participatory budgeting process as defined in subparagraph (x)
subparagraph (4) of subdivision (b) of this section or provide opportunities for parent and
student engagement in a manner prescribed by the Commissioner;
(e) conduct parent, staff, and student surveys as defined in subparagraph (xi) of
paragraph (4) of subdivision (b) of this section; and
(f) notify parents and the public of the school’s designation as a CSI school in
accordance with subdivision (i) of this section.
(ii) In the second school year of identification as a CSI school:
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 (a) except as otherwise provided in this subparagraph, the school shall continue
to implement the requirements established by subparagraph (i) of this subdivision,
including the school comprehensive education plan;
(b) obtain prior approval of the Commissioner for any significant modification to the
school’s approved comprehensive education plan;
(c) the principal must submit to the district on a quarterly basis a report of the
leading indicators identified in the comprehensive education plan detailing the progress
made toward meeting the goals set forth in the school’s comprehensive education plan;
(d) any CSI school that has met or exceeded its Annual Achievement Progression
targets, as defined in paragraph (4) of subdivision (a) of this section, in the first set of
available annual assessment data following the school’s identification will receive a
progress needs assessment, which will inform the development of and/or any
amendments or modifications to the school comprehensive education plan to be
implemented in the following school year;
(e) Any CSI school that has not met or exceeded its Annual Achievement
Progression targets, as defined in paragraph (4) of subdivision (a) of this section, in the
first set of available annual assessment data following the school’s identification, will
receive either a progress needs assessment or a comprehensive needs assessment, as
determined by the Commissioner and based on the needs of the school as exhibited by
the most recent performance on the accountability measures. In addition to the needs
assessment, as determined by the Commissioner, the district shall also submit a principal
support report, as defined in subparagraph (xii) of paragraph (4) of subdivision (b) of this
section;
(iii) In the third school year of identification as a CSI school:
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 (a) except as otherwise provided in this subparagraph, the school must continue
to implement the requirements established by subparagraph (ii) of this paragraph,
including the school comprehensive education plan;
(b) the principal must continue to submit to the district on a quarterly basis a report
of the leading indicators identified in the comprehensive needs assessment detailing the
progress made toward meeting the goals set forth in the school comprehensive education
plan;
(c) Any CSI school that has met or exceeded its Annual Achievement Progression
targets, as defined in paragraph (4) of subdivision (b) of this section, in both the first set
of available annual assessment data following the school’s identification and the second
set of available data following identification, will receive a progress needs assessment,
which will inform the development of and/or any modifications to the school
comprehensive education plan to be implemented in the following school year. Provided
that, if such school makes sufficient progress to be removed from the accountability
designation as set forth in subdivision (j) of this section, such school shall be removed
from the designation as a CSI school;
(d) Any CSI school that did not meet or exceed its Annual Achievement
Progression targets as defined in paragraph (4) of subdivision (b) of this section, based
on the first set of available annual assessment data following the school’s identification,
but did meet, or exceeded, its Annual Achievement Progression targets based on the
second set of available annual assessment data, will receive either a progress needs
assessment, which will inform the development of the comprehensive education plan to
be implemented in the following school year.

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 (e) Any CSI that did not meet or exceed its Annual Achievement Progression
target in the first and second set of available assessment data following the release of
accountability determinations will receive a progress needs assessment or
comprehensive needs assessment, as determined by the Commissioner and based on
the needs of the school as exhibited by the most recent performance on the
accountability measures. Provided that, if a progress needs assessment was
conducted in previous year of identification, a comprehensive needs assessment must
be completed. Any CSI school that did not meet its Annual Achievement Progression
target in the first and second set of available assessment data following the release of
accountability determinations will also be required to amend the current year’s
comprehensive education plan, and submit such amendment for the Commissioner’s
approval, within 60 days of the release of the school’s Annual Achievement Progression
results to identify how the school will partner with a BOCES, Regional Bilingual
Educational Resource Network, Teacher Center, or other Regional Technical
Assistance Center, or other technical assistance provider as determined by the
Commissioner to support the implementation of its comprehensive education plan.
Additionally, a Principal Needs Assessment, as defined in subparagraph (xiii) of
paragraph (4) of subdivision (a) of this section, will be added to the District Needs
Assessment process for any district with a CSI school that does not reach its Annual
Achievement Progression targets for two consecutive years; and
(f) Any CSI school that met, or exceeded, its Annual Achievement Progression
target as defined in paragraph (4) of subdivision (a) of this section, based on the first set
of available annual assessment data following the school’s identification, but did not meet
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 its Annual Achievement Progression target based on the second set of available annual
assessment data, will receive either a progress needs assessment or a comprehensive
needs assessment, as determined by the Commissioner and based on the needs of the
school as exhibited by the most recent performance on the accountability measures. In
addition to the needs assessment, as determined by the Commissioner, the district shall
also submit a principal support report, as defined in paragraph (4) of subdivision (a) of
this section.
(g) In any CSI school that has a decline in its Core Subject Performance Index for
elementary/middle schools or its Composite Performance Index for high schools for the
all students subgroup, as determined by the Commissioner, for two consecutive years,
the school district must provide all students enrolled in the school with public school
choice in accordance with section 120.1 and paragraph (4) of subdivision (b) of this
section. Provided further that, in instances when there are no schools in Good Standing
or TSI schools serving the grade levels served by the CSI school that is required to
provide public school choice, the district shall ensure that the CSI school expends for
Participatory Budgeting an amount equal to or greater than three times the amount
expended by such school during the first year in which such school implemented
Participatory Budgeting. The tripling of the amount to expend is considered to be a onetime action, and the school will be required to expend the resulting amount each year until
it is no longer a CSI school (e.g., if district spent $2,000 in Year 1, such amount is tripled
to $6,000 in Year 2, and the district must spend $6,000 in Year 3 and each year thereafter
until it is no longer a CSI school). In instances when there are schools within the school
district that are in Good Standing or TSI but the district is unable to fulfill all of the public
school choice transfer requests submitted on behalf of students from the CSI school
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 because there are not enough available seats to accommodate all transfer requests
received, then the district must ensure that the CSI school expends for Participatory
Budgeting an amount equal to or greater than at least two times the amount set aside at
such school during the first year in which such school implemented participatory
budgeting. The doubling of the amount to expend is considered to be a one time action,
and the school will be required to expend the resulting amount each year until it is no
longer a CSI school. Schools that are required to offer Public School Choice but were
unable to do so and that instead fulfilled the annual participatory budgeting requirement
identified in this subdivision through increasing opportunities for parent and student
engagement as prescribed by the Commissioner will be required to provide additional
opportunities for increased parent and student engagement in a manner prescribed by
the Commissioner.
(iv) For any CSI school that is required to offer public school choice or increase
the amount expended for Participatory Budgeting as outlined in clause (g) of
subparagraph (iii), that school shall continue to provide all students enrolled in the
school with public school choice during the period the school is identified as a CSI
school. For schools that were unable to offer to public school choice as outlined in
clause (g) of subparagraph (iii), and have fulfilled the annual participatory budgeting
requirement described in this subdivision through an alternate means of increasing
opportunities for parent and student engagement prescribed by the Commissioner will
be required to continue to provide additional opportunities for increased parent and
student engagement as outlined in clause (g) of subparagraph (iii) for each year the
school is identified as a CSI school.

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 If a school’s designation as a CSI school is removed, the school shall no longer be
required to provide all students in the school with public school choice in the following
school year; provided further that any student receiving public school choice at the time
the CSI designation is removed, shall continue to be provided the opportunity to remain
in the school to which they have transferred and be provided with transportation until the
student has completed the highest grade level in the school to which such students have
transferred, in the manner required by the provisions of section 120.3 of this Part.
(v) Notwithstanding the provisions of this paragraph, a school district, on behalf of
a transfer high school that has been identified as a CSI school, may petition the
Commissioner to differentiate the required interventions for such transfer high school.
Such petition may include, but need not be limited to, a request for one or more of the
following:
(a) the school comprehensive education plan shall be subject to approval only by
the district;
(b) a transfer high school shall not be required to offer public school choice;
(c) a transfer high school shall not be required to amend its school comprehensive
education plan to partner with a BOCES, Regional Bilingual Educational Resource
Network, Teacher Center, or other Regional Technical Assistance Center or other
technical assistance provider as determined by the Commissioner to support the
implementation of its school comprehensive education plan.
(vi) CSI Schools Identified as Persistently Struggling Schools, Struggling Schools
and/or Schools Under Registration Review.
(a) Notwithstanding the provisions of subdivision (i) of this section, in the event
that a CSI school has been identified as a struggling school or a persistently struggling
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 school pursuant to section 100.19 of this Part and/or a school under registration review
pursuant to this section, the district may use a single notification to fulfill the annual public
notification requirements of this subdivision and section 100.19(c)(1)(ii) of this Part.
(b) For schools designated as struggling or persistently struggling pursuant to
section 100.19 of this Part, in creating the school comprehensive education plan or in
revising the department-approved intervention model, the school receiver shall ensure
that the plan addresses the tenets of the diagnostic tool for school and district
effectiveness and include student outcome data pursuant to section 100.19(f)(4) of this
Part.
(c) For schools that are identified as persistently struggling or struggling pursuant
to section 100.19 of this Part, the requirements for the school comprehensive education
plan include, in addition to those required in this section, the requirements specified in
section 100.19(d)(1) of this Part related to development of a community engagement plan
and inclusion of rigorous performance metrics and goals.
(2) Interventions for TSI Schools.
(i) In the first school year of identification as a TSI school, and for every school
year thereafter during which the school remains so identified, the school must:
(a)

participate in a comprehensive needs assessment in the first year of

identification and a comprehensive needs assessment or a progress needs assessment
in subsequent years in which the school is identified;
(b) develop a school comprehensive education plan. Such plan shall:
(1) be formally approved by the board of education (in New York City, approved by
the chancellor or chancellor’s designee;
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 (2) be implemented no later than the first day of regular student attendance of the
next school year after the school year in which the school was identified;
(3) be updated annually and incorporate the findings of the comprehensive needs
assessment or progress needs assessment as applicable, and be implemented no later
than the first day of regular student attendance of each school year that the school
remains a TSI school;
(4) be made widely available through public means by either posting on the
district’s or school’s website, if one exists, or displayed conspicuously within the school,
according to such timeline as may be prescribed by the Commissioner;
(5) be developed in consultation with parents, school staff, and others pursuant to
section 100.11 of this Part; and
(6) include a description of the goals, targets, and activities, and include timelines
for the implementation of school-level evidence-based interventions and job-embedded
professional development.
(3) Interventions for Target Districts.
(i) In the first year of identification as a Target District, and for every school year
thereafter during which the district remains so identified, the district must:
(a) participate in a comprehensive needs assessment;
(b) develop a district comprehensive improvement plan. Such plan shall:
(1) be formally approved by the board of education (in New York City, approved by
the chancellor or chancellor’s designee);
(2) be implemented no later than the first day of regular student attendance of the
next school year after the school year in which the district was identified;

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 (3) be updated annually and incorporate the findings of the comprehensive needs
assessment;
(4) be made widely available through public means by either posting on the
district’s website, if one exists, or displayed conspicuously within the district, according to
such timeline as may be prescribed by the Commissioner;
(5) be developed in consultation with parents, school staff, and others, consistent
with the district plan pursuant to section 100.11 of this Part; and
(6) include a description of the goals, targets, and activities, and include timelines
for the implementation of interventions and professional development that address the
needs identified by the district and school needs assessments.
(c) for the second year of identification and each subsequent school year thereafter
that the school district is identified as a Target District, obtain prior approval of the
Commissioner for any significant modification of the district’s comprehensive
improvement plan;
(4) Interventions for schools with subgroups performing at Level 1 on an
accountability measure.
(i) Any school with any accountability measure of Level 1 for any subgroup, as
calculated pursuant to subdivision (f) of this section, that is not a CSI or TSI school shall:
(a) participate in a needs assessment, in a format as may be prescribed by the
Commissioner, to determine the additional support that the school needs to improve
performance. Such needs assessment must identify the academic achievement gaps
between accountability subgroups within the school, the root causes for the gaps, and
delineate the resources and strategies that the district will use to support the school to
address such gaps.
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 (b) based on the needs assessment, in a format as may be prescribed by the
Commissioner, the district, in consultation with parents, school staff, and other
stakeholders at the school, consistent with the district plan pursuant to section 100.11 of
this Part, shall identify additional resources that the district will provide to the school to
assist it to increase performance on the accountability measure for the identified group(s).
Provided that in its consolidated application submitted to the Department, the district must
identify the additional resources and professional development that the district will provide
the school to improve performance.
(ii) Any TSI school that is identified for additional targeted support may be required
to implement additional actions, as determined by the Commissioner, including
submission of their annual school comprehensive education plan to the Commissioner
for approval; partnering with a BOCES, Regional Bilingual Educational Resource
Network, Teacher Center, or other Regional Technical Assistance Center, or other
technical assistance provider; and/or implementing a participatory budgeting process.
Districts with TSI schools identified for additional targeted support may be required to
implement additional actions, as determined by the Commissioner, including submitting
a principal support report.
(5) Interventions for schools that fail to demonstrate an assessment participation
rate of 95 percent.
(i) Pursuant to paragraph (1) of subdivision (b) of this section, the Commissioner
shall annually determine the participation rate for each accountability subgroup in each
public school in which the subgroup has 40 or more students. The Commissioner shall
determine that the subgroup has met the participation rate requirement if:
(a) the participation rate for the current year equals or exceeds 95 percent; or
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 (b) the weighted average of the current year and prior year participation rates
equals or exceeds 95 percent;
(ii) Beginning with 2017-2018 and 2018-2019 school year results, any public
elementary/middle or high school that has a Weighted Average Achievement Level of 1
or 2 and that fails to meet the required 95 percent participation rate for the same
subgroup(s), in the same subject (i.e., ELA or math) for two consecutive years, and that
fails to improve participation rate as compared to the previous year for the same
subgroup(s) and subject(s), as determined by the Commissioner, must conduct a
participation rate self-assessment and develop a participation rate improvement plan, in
such form and according to such timeline as determined by the Commissioner. Such
school participation rate self-assessment and improvement plan shall be developed in
collaboration with a committee composed of the school principal or his/her designee(s);
school staff, including teachers and student support staff selected by the representative
collective bargaining organization(s), and parents (not employed by the district or a
collective bargaining organization representing teachers or administrators in the district)
selected by school-related parent organizations; except that a school district may
designate that a school-based management team established pursuant to section 100.11
of this Part or a community engagement team established pursuant to 100.19 of this Part
may serve as the committee required by this paragraph. Such school plan must address
participation of students from all subgroups for which the school has failed to meet the
required 95 percent participation rate and failed to improve the participation rate as
compared to the previous year. Such school plan must be adopted by the district Board
of Education (in New York City, the chancellor or chancellor's designee), after
consultation with the committee, no later than 60 days following notification to the district
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 that such a plan is required. The Board of Education (in New York City, the chancellor or
chancellor's designee) shall take appropriate action to notify the general public upon
adoption of the school plan; such action shall include, but not be limited to, publishing on
the district website, if one exists, or direct notification, within 30 days of adoption, in
English and translated, when appropriate, into the recipient’s native language or mode of
communication.
(iii) Beginning with 2018-2019 and 2019-2020 school year results, for any school
that completed a school participation rate self-assessment and improvement plan in the
previous school year and that fails to improve its participation rates for the subgroup(s)
and subject(s), as determined by the Commissioner, for which the plan was required, the
district shall conduct a participation rate audit and develop an updated participation rate
improvement plan. Such district participation improvement plan shall be developed in
collaboration with a committee composed of the superintendent or his/her designee(s);
the school principal or his/her designee(s); school staff, including teachers and student
support staff selected by the representative collective bargaining organization(s); and
parents (not employed by the district or a collective bargaining organization representing
teachers or administrators in the district) selected by district-related and/or school-related
parent organizations. Such district plan must be adopted by the district board of
education, no later than 60 days following notification to the district that such a plan is
required. The board of education (in New York City, the chancellor or chancellor's
designee) shall take appropriate action to notify the general public upon adoption of the
school plan; such action shall include, but not be limited to, publishing on the district
website, if one exists, or direct notification to the parents, within 30 days of adoption, in

110

 English and translated, when appropriate, into the recipient’s native language or mode of
communication.
(iv) Beginning with 2019-2020 and 2020-2021 school year results, for any school
for which a district audit and district participation rate improvement plan was completed
in the previous school year and that fails to improve its participation rates for the
subgroup(s) and subject(s), as determined by the Commissioner, for which the plan was
required, the district must partner with a Board of Cooperative Educational Services
(BOCES) or other technical assistance center to conduct a participation rate audit and
develop an updated participation rate plan. Such participation rate improvement plan shall
be developed in collaboration with a committee composed of BOCES staff, the
superintendent or his/her designee(s); the school principal or his/her designee(s); school
staff, including teachers and student support staff, no more than fifty percent of whom
shall be selected by the representative collective bargaining organization(s); and parents
(not employed by the district or a collective bargaining organization representing teachers
or administrators in the district) selected by district-related and/or school-related parent
organizations. Such plan must be adopted by the district board of education no later than
60 days following notification to the district that such a plan is required. The board of
education (in New York City, the chancellor or chancellor's designee) shall take
appropriate action to notify the general public upon adoption of the school plan; such
action shall include, but not be limited to, publishing on the district website, if one exists,
or direct notification to the parents, within 30 days of adoption, in English and translated,
when appropriate, into the recipient’s native language or mode of communication.
(v) Beginning with 2020-2021 and 2021-2022 school year results, for any school
for which an audit and participation rate improvement plan was completed pursuant to
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 subparagraph (iv) of this paragraph in the previous school year and that fails to improve
its participation rates for the subgroup(s) and subject(s), as determined by the
Commissioner, for which the plan was required, the Department shall conduct an audit of
the participation rate and the school may be required by the Commissioner to address
recommendations contained in the participation rate audit.
(vi) Beginning with 2017-2018 and 2018-2019 school year results, for any public
elementary/middle or high school that is required to develop a participation rate
improvement plan and is among the lowest 10 percent of schools within the State for
participation rate as determined by the Commissioner, the district must submit such plan
for approval by the Commissioner no later than 60 days following notification to the district
that such plan is required.
(vii) Notwithstanding the requirements of this subdivision, the Commissioner may
make a determination that a school may be excused from development of a selfassessment and participation rate improvement plan if the school demonstrates
extenuating or extraordinary circumstances that should cause the school to be so
excused as determined by the Commissioner.
(viii) Any school that is required to conduct a self-assessment and develop a
participation rate improvement plan shall be required to update such plan annually until
the school is no longer failing to meet the 95 percent participation rate for any subgroup(s)
and subject(s) which caused it to be required to conduct such self-assessment and
develop such plan. For schools that have demonstrated improvement towards meeting
the 95 percent participation rate requirement for the accountability group(s) for which such
plan is required, the school shall not be required to conduct a new self-assessment or

112

 develop a new plan but instead shall be required to update its plan and/or provide the
Department with an assurance that participation improvement strategies shall continue.
(j) Removal from accountability designation.
(1) For elementary/middle schools:
(i) To exit CSI status, a CSI elementary/middle school must, for two consecutive
years, exceed the levels that would cause it to be identified for CSI status in each such
school year.
(ii) Elementary/middle schools may exit CSI status if, for two consecutive years:
(a) The elementary/middle school’s Composite Performance Level and Student
Growth Level are both Level 2 or higher; or
(b) Both the Composite Performance Index and Mean Growth Percentile are
higher than at the time of identification; and the Combined Composite Performance and
Student Growth Level is a Level 2 or higher; and none of the following is Level 1:
Academic Progress, English Language Proficiency, and Chronic Absenteeism.
(c) Notwithstanding any provision of this subdivision to the contrary, an
elementary/middle school may also exit CSI status if such elementary/middle school is
not on the new list of identified CSI schools that is created every third year, as a
consequence of the school having improved performance on the measures used to
identify such schools.
(d) Notwithstanding any provision of this subdivision to the contrary including
clause (c) of this subparagraph, an elementary/middle school may not exit CSI status if
the school is required to implement a participation rate plan improvement pursuant to
paragraph (5) of subdivision (i) of this section and the school has performed at Level 1 on
the Weighed Academic Achievement Index for the all students group.
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 (iii) To exit TSI status, the performance of a TSI elementary/middle school must,
for two consecutive years, be such that it would no longer be identified as a TSI School
under the criteria listed in subdivision (f) of this section. For an elementary/middle school
to be removed from TSI status, all identified subgroups must meet the specified exit
criteria. Provided that to be removed from designation as a TSI elementary/middle
school, a school must not be identified for any accountability subgroup and the school
may not be among those required to implement a participation rate improvement plan for
the accountability subgroup(s) for which the school has been identified, except that this
provision shall not apply to any accountability subgroup that performs at or above Level
2 on the Weighted Averageveage Achievement Index.
(2) For high schools:
(i) High schools may exit CSI status if, for two consecutive years:
(a) The high school’s Composite Performance Level and Graduation Rate Level
are both Level 2 or higher; or
(b) Both the Composite Performance Index and average of the Four-Year, FiveYear, and Six-Year Graduation Rates are higher than at the time of identification; and the
Combined Composite Performance and Graduation Rate Level is a Level 2 or higher; and
none of the following are Level 1: English Language Proficiency; Academic Progress;
Chronic Absenteeism; and College, Career, and Civic Readiness.
(c) Notwithstanding any provision of this subdivision to the contrary, a high school
may also exit CSI status if such school is not on the new list of identified CSI schools that
is created every third year as a consequence of the school having improved performance
on the measures used to identify high schools.

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 (d) Notwithstanding any provision of this subdivision to the contrary, a high school
may not exit CSI status if the school is required to implement a participation rate
improvement plan.
(ii) To exit TSI status, the performance of a TSI high school must, for two
consecutive years, be such that it would no longer be identified as a TSI school under
subdivision (f) of this section. For a high school to be removed from TSI status, all
identified subgroups must meet the specified exit criteria and the school shall not be
among those required to implement a participation rate plan pursuant to this section.
Provided that to be removed from the designation as a TSI school, a high school shall not
be identified as a TSI school for any accountability subgroup.
(3) Provided that, any CSI school or TSI school which is identified for both the
elementary and middle school, or the middle and high school, each identified grade span
level must meet the exit criteria described in this subdivision.
(4) Provided further that, any elementary, middle, or high school that has been
identified as a CSI school for three consecutive school years shall be preliminarily
identified as a struggling school and subject to the provisions of section 100.19 of this
Part.
(5) Provided further that any TSI elementary, middle or high school that continues
to be identified for three consecutive school years after designation for additional targeted
support for the performance of the same accountability subgroup(s) for which the school
was identified for additional targeted support shall be preliminarily identified as a CSI
school.
(6) Removal of designation as a Target District. A district may be removed from
Target District status if:
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 (i) all of the schools in the district are in Good Standing; and
(ii) if the district has been identified as a Target District because of district-wide
performance, the district’s performance must, for two consecutive years, be such that it
would no longer be identified as a Target District under subdivision (f) of this section.
(k) Identification of schools for public school registration review.
(1) The Commissioner shall place under preliminary registration review those
schools identified for receivership in accordance with section 100.19 of this Title;
provided, however, that the Commissioner may also place under preliminary registration
review any school identified as a CSI school in accordance with this section for at least
three consecutive years.
(2) The Commissioner may also place under preliminary registration review any
school that has conditions that threaten the health, safety, and/or educational welfare of
students or has been the subject of persistent complaints to the department by parents
or persons in parental relation to the student, and has been identified by the
Commissioner as a poor learning environment based upon a combination of factors
affecting student learning, including but not limited to: high rates of student absenteeism,
high levels of school violence, excessive rates of student suspensions, violation of
applicable building health and safety standards, high rates of teacher and administrator
turnover, excessive rates of referral of students to or participation in special education or
excessive rates of participation of students with disabilities in the alternate assessment,
evidence that the school does not maintain required programs and services; evidence of
failure to appropriately refer for identification and/or provide required programs and
services to students with disabilities pursuant to Part 200 of this Title; evidence of failure
to appropriately identify and/or provide required programs and services to English
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 language learners pursuant to Part 154 of this Title, excessive transfers of students to
alternative high school and high school equivalency programs and excessive use of
uncertified teachers or teachers in subject areas other than those for which they possess
certification. Notwithstanding the provisions of subdivision (g) of this section, any school
that is identified as a school under registration review pursuant to this paragraph shall
also be identified as a CSI school and shall be subject to all of the requirements of this
section.
(3) The Commissioner may also place under preliminary registration review any
school for which a school district fails to provide in a timely manner the student
performance data required by the Commissioner to conduct the annual assessment of
the school's performance or any school in which excessive percentages of students fail
to fully participate in the State assessment program.
(4) For each school identified for preliminary registration review pursuant to
paragraph (1) of this subdivision, the school district shall be given the opportunity to
present to the Commissioner additional data and relevant information concerning
extenuating or extraordinary circumstances faced by the school that should be cause for
the Commissioner to not identify the school for registration review.
(5) For each school identified as a poor learning environment and placed under
preliminary registration review pursuant to paragraph (2) of this subdivision, the school
district shall be given the opportunity to present evidence to the Commissioner that the
conditions in the school do not threaten the health or safety or educational welfare of
students and do not adversely affect student performance.
(6) The Commissioner shall review the additional information provided by the
school district and determine which of the schools identified for preliminary registration
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 review pursuant to paragraph (1) of this subdivision, or identified as poor learning
environments pursuant to paragraph (2) of this subdivision, shall be placed under
registration review.
(l) Public school registration review.
(1) Upon placing the registration of a school under review, the Commissioner shall
warn the board of education (in New York City, the chancellor or chancellor’s designee)
that the school has been placed under registration review, and that the school is at risk
of having its registration revoked. The Commissioner shall include in any warning issued
pursuant to this paragraph the actions that must be taken and/or the progress that must
be demonstrated in order for a school to be removed from consideration for revocation of
registration, except that for a school identified as a poor learning environment pursuant
to this paragraph the Commissioner need not inform the board of education of the actions
that must be taken and/or the progress that must be demonstrated in order for the school
to be removed from consideration for revocation of registration until the Commissioner
has completed the review of the recommendations of the integrated intervention team.
(i) Upon receipt of such warning, the board of education (in New York City, the
chancellor or chancellor's designee) shall take appropriate action to notify the general
public of the issuance of such warning. Such action shall include, but not be limited to,
direct notification, within 30 days of receipt of the Commissioner's warning, in English and
translated, when appropriate and to the extent practicable for the most frequently used
languages in the district, into the recipient's native language or mode of communication,
to persons in parental relation of students attending the school that it has been placed
under registration review and is at risk of having its registration revoked, and disclosure

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 by the school district at the next public meeting of the local board of education of such
warning.
(ii) Each school year during which a school remains under registration review, by
June 30 or at the time of a student's initial application or admission to the school,
whichever is earliest, the board of education shall provide direct notification to parents or
other persons in parental relation to students attending the school that the school remains
under registration review and is at risk of having its registration revoked. Such notification
shall include a summary of the actions that the school district and school are taking to
improve student results and an explanation of any school district programs of choice,
magnet programs, transfer policies, or other options that a parent or a person in parental
relation may have to place the student in a different public school within the school district.
Such notification shall include the timelines and process for parents exercising their rights
to school choice. Notwithstanding the provisions of this subparagraph, in the event that
the Commissioner places a struggling or persistently struggling school pursuant to section
100.19 of this Part under registration review, the district may use a single notification to
fulfill the annual public notification requirements of this section and section 100.19(c)(1)(ii)
of this Part.
(2) Schools with poor learning environments identified for registration review.
(i) Following the placement of a school under registration review pursuant to
paragraph (2) of subdivision (k) of this section, an integrated intervention team, which
may include a distinguished educator, as appointed by the Commissioner, pursuant to
section 100.17(c)(3)(i) of this Part, shall conduct a diagnostic review of the school and
recommend to the Commissioner for his or her approval interventions based upon the

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 reason for which the school was identified for registration review, which may include but
need not be limited to whether the school should:
(a) continue to implement its current improvement plan or any interventions
required under subdivision (h) of this section, as modified by recommendations of the
integrated intervention team;
(b) implement a new intervention plan that addresses the recommendations of the
integrated intervention team; or
(c) be phased out or closed.
(ii) The Commissioner shall review the recommendations of the integrated
intervention team and may approve, or modify and approve as so modified, such
recommendations. Upon such approval, the Commissioner shall direct that the school
district submit in a format and according to a timeline prescribed by the Commissioner a
revised improvement plan or intervention plan, a new intervention plan, or a plan for phase
out or closure that implements the recommendations of the integrated intervention team.
Upon approval of the plan by the Commissioner, the school shall be required to implement
such plan. If the school district fails to submit an approvable plan, the Commissioner may
recommend to the Board of Regents that the registration be revoked and the school be
declared an unsound educational environment pursuant to paragraph (7) of this
subdivision. If the school fails for two consecutive years to take the actions or make the
progress required by the Commissioner, the Commissioner may direct that the district
submit a plan to implement one of the following actions:
(a) enter into a contract with the State university trustees, subject to the approval
of the Commissioner of Education, pursuant to Education Law section 355(n) for the
education of the children of the school;
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 (b) for the city school district of the City of New York, enter into a contract with the
city board and the city university of New York pursuant to Education Law section 2590(k)
to administer a New York City public high school; or
(c) close or phase out the school.
(ii) In the event that the school district does not submit an acceptable plan in such
format and in such timeline as the Commissioner may establish, the Commissioner may
direct that the school district close or phase out the school pursuant to a plan approved
by the Commissioner.
(3) Receivership schools.
(i) A school that is identified for registration review that has also been identified as
a struggling school or persistently struggling school pursuant to section 100.19 of this
Part shall implement the school receivership provisions of that section, except that if the
school fails to make demonstrable improvement pursuant to section 100.19 of this Part
for two consecutive years the Commissioner may direct that the school receivership be
terminated and the district submit a plan to take one of the following actions:
(a) enter into a contract with the State university trustees, subject to the approval
of the Commissioner of Education, pursuant to Education Law section 355(n) for the
education of the children of the school;
(b) for the city school district of the City of New York, entering into a contract with
the city board and the city university of New York pursuant to Education Law section
2590(k) to administer a New York City public high school or
(c) close or phase out the school.
(ii) In the event that the school district does not submit an acceptable plan in such
format and in such timeline as the Commissioner may establish, the Commissioner may
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 direct that the school district close or phase out the school pursuant to a plan approved
by the Commissioner.
(4)

CSI schools identified for registration review that are not struggling or

persistently struggling schools.
(i) A school that is identified for registration review that has been identified as a
CSI school that is not a struggling or persistently school pursuant to section 100.19 of this
Part shall continue to implement its current improvement plan and/or any interventions
required under this section. If the school fails for two consecutive years to take the actions
or make the progress required by the Commissioner, the Commissioner may direct the
district to submit a plan to take one of the following actions:
(a) enter into a contract with the State university trustees, subject to the approval
of the Commissioner of Education, pursuant to Education Law section 355(n) for the
education of the children of the school;
(b) for the city school district of the City of New York, entering into a contract with
the city board and the city university of New York pursuant to Education Law section
2590(k) to administer a New York City public high school; or
(c) close or phase out the school.
(ii) In the event that the school district does not submit an acceptable plan in such
format and in such timeline as the Commissioner may establish, the Commissioner may
direct that the school district close or phase out the school pursuant to a plan approved
by the Commissioner.
(5) In the event that a school district seeks to register a new school to replace a
school under registration review that is being closed or phased out pursuant to
paragraphs (2), (3), or (4) of this subdivision or to close and replace a struggling or
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 persistently struggling school pursuant to section 100.19 of this Part, the Commissioner
may direct the school district to provide information in such format and according to such
timeline as prescribed by the Commissioner that includes, but is not limited to, the
following:
(i) an overview of the instructional design, programs, partnerships, and curriculum
for the school that shall be opened and the timeline by which each of these elements shall
be put in place, as well as the professional development that shall be provided to the staff
members of the school;
(ii) the additional resources that will be provided to any schools to which students
from the closing or phasing out school may be reassigned, as well as additional resources
to ensure implementation of plans for any new school to be opened;
(iii) evidence that key stakeholder groups were involved in the decisions regarding
the plan for the closure and opening of schools;
(iv) the process for identifying and appointing the leadership and staff of the new
school, which must result in the selection of school leaders with a track record of success
as school leaders and a staff that consists primarily of experienced teachers (i.e., at least
three years of teaching experience) who are certified in the subject area(s) they will teach,
have been rated Effective or Highly Effective pursuant to Education Law §3012-d in each
of the past three years, and are not currently assigned to the school to be closed or
phased out, unless approval has been granted by the Commissioner to waive any of these
requirements, subject to collective bargaining as required under article 14 of the Civil
Service Law, and require that any successor collective bargaining agreement authorize
such appointments unless otherwise prohibited by law;

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 (v) evidence that the school’s enrollment will not increase socio-economic and/or
racial/ethnic isolation of students in the new school and the staff of the new school has
been trained in culturally responsive-sustaining practices and can meet the needs of all
students, including students with disabilities and English language learners/multilingual
learners; and
(vi) the Commissioner may further direct that a district that seeks to register a new
school to replace a school under registration review or a struggling or persistently
struggling school that is being closed or phased out contract with an independent monitor
to oversee the closure or phase process and the opening of the new school. The
independent monitor shall be appointed by the Commissioner, in consultation with the
superintendent of the school district, and shall report to the Commissioner according to
such timeframe and in such manner as the Commissioner shall direct. The independent
monitor shall be:
(a) a consultant to the school district, which shall pay for such services, but shall
report to the Commissioner or her designee.
(b) serve on any committee(s) that are part of the process of hiring school leaders
and staff for any school that shall be opened.
(c) shall neither have been an employee of the school district in the past two years,
nor be engaged in any other work with the school district while serving as an independent
monitor.
(vii) The Commissioner shall forward to the Board of Regents a petition to register
a new school to replace a school under registration review or a persistently struggling or
struggling school only upon a finding by the Commissioner that the school district has

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 submitted a plan to create a new and satisfactory educational environment for students
and has the capacity to implement successfully such plan.
(6) The Commissioner may require a school district to submit such reports and
data as the Commissioner deems necessary to monitor the implementation of the
improvement plan, school comprehensive education plan, or closure or phase out plan
and to determine the degree to which the school has achieved the progress required by
the Commissioner. Such reports shall be in a format and in accordance with such
timeframe as are prescribed by the Commissioner. The Commissioner may upon a finding
of good cause extend the deadline for submission of a required plan.
(7) If the school has not taken the required actions to close or phase out a school
as delineated by the Commissioner pursuant to paragraphs (2), (3), (4), or (5) of this
subdivision, the Commissioner shall recommend to the Board of Regents that the
registration be revoked and the school be declared an unsound educational environment,
except that the Commissioner may upon a finding of extenuating circumstances extend
the period during which the school must demonstrate progress. The board of education
of the school district which operates the school (in New York City, the chancellor or
chancellor’s designee) shall be afforded notice of such recommendation and an
opportunity to be heard in accordance with paragraph (9) of this subdivision.
(8) Upon approval of revocation of registration by the Board of Regents, the
Commissioner will develop a plan to ensure that the educational welfare of the students
of the school is protected. Such plan shall specify the instructional program into which
students who had attended the school will be placed, how their participation in the
specified programs will be funded, and the measures that will be taken to ensure that the

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 selected placements appropriately meet the educational needs of the students. The
Commissioner shall require the board of education to implement such plan.
(9) Decisions to revoke the registration of a public school shall be made in
accordance with the following procedures:
(i) The Commissioner shall provide written notice of his or her recommendation
and the reasons therefore to the board of education, which operates the school (in New
York City, both the chancellor and any community school board having jurisdiction over
the school). Such notice shall also set forth:
(a) the board of education's right to submit a response to the recommendation and
request oral argument pursuant to subparagraph (ii) of this paragraph;
(b) the place, date, and time the matter will be reviewed, and if requested, an oral
argument heard by a three-member panel of the Board of Regents for recommendation
to the full Board of Regents; and
(c) notification that failure to submit a response will result in the Commissioner's
recommendation being submitted to the Board of Regents for determination.
(ii) Within 15 days of receiving notice of the recommendation to revoke registration,
the board of education (in New York City, both the chancellor or chancellor’s designee
and any community school board having jurisdiction over the school) may submit a written
response to the Commissioner's recommendation. The response shall be in the form of
a written statement which presents the board of education's position, all evidence and
information which the board of education believes is pertinent to the case, and legal
argument. If the board of education desires, it may include in its response a request for
oral argument. Such response must be filed with the Office of Counsel, New York State
Education Department, State Education Building, Albany, NY 12234.
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 (iii) Within 30 days of the date of notice of the Commissioner's recommendation, a
panel comprised of three members of the Board of Regents, appointed by the chancellor,
shall convene to consider the Commissioner's recommendation, review any written
response submitted by the board of education and, if timely requested by the board of
education, hear the oral argument.
(m) Removal of schools from registration review, school phase-out or closure.
(1) In the event that a school has demonstrated the progress necessary to be
removed from registration review, the superintendent may petition the Commissioner to
remove the school from registration review.
(2) A school shall not be removed from registration review if, in the Commissioner's
judgment, conditions that may contribute to a poor learning environment, as identified in
paragraph (2) of subdivision (k) of this section, remain present in the school.
(3) In the event that a school placed under registration review prior to the 20182019 school year demonstrates that it has met its previously established progress targets
pursuant to paragraph (p) of section 100.2 or section 100.18 of this Part, but is identified
in the 2018-2019 school year as a CSI school pursuant to this section, the school shall
remain under registration review and shall follow the intervention requirements pursuant
to subdivision (i) of this section and meet the targets for removal from designation as a
CSI school pursuant to subdivision (j) of this section, pursuant to a timeline prescribed by
the Commissioner.
(4) In the event that a school placed under registration review prior to the 20182019 school year demonstrates that it has met its previously established progress targets
pursuant to paragraph (p) of section 100.2 or section 100,19 of this Part, and is not

127

 identified in the 2018-2019 school year as a CSI school pursuant to subdivision (g) of this
section, the school shall be removed from registration review.
(5) In the event that a board of education either seeks to phase out or close a
school under registration review or is required to close or phase out a school pursuant to
paragraph (l)(3) of this section, the board of education (in New York City, the chancellor
or chancellor's designee) shall submit for Commissioner's approval, a plan identifying the
intervention that will be implemented and will result in phase out or closure, in the form
and containing such content as prescribed by the Commissioner. The Commissioner will
consider the academic impact of such phase out or closure on other schools within the
school district and may grant approval of such plan provided that:
(i) official resolutions or other approvals to phase out or close the existing school
have been adopted by the local board of education (in New York City, the chancellor or
chancellor's designee);
(ii) a formal phase out or closure plan has been developed and approved in
accordance with the requirements of the intervention prescribed by the Commissioner
pursuant to subdivision (i) of this section; and
(iii) parents, teachers, administrators, and community members have been
provided an opportunity to participate in the development of the phase out or closure plan.
(m) Severability. If any provision of this section or the application thereof to any
person or circumstances is adjudged invalid by a court of competent jurisdiction, such
judgment shall not affect or impair the validity of the other provisions of this section or
the application thereof to other persons and circumstances.

128

 7. Part 120 of the Regulations of the Commissioner of Education is amended,
effective July 1, 2018, as follows:
Part 120. [No Child Left Behind Act of 2001] School Choice and Supplemental
Educational Service Providers.
§ 120.1. [Purpose. The purpose of this Part is to implement key provisions of the
Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child
Left Behind Act of 2001, Public Law, section 107-110 (NCLB). The provisions of this Part
shall be construed in a manner consistent with Federal law, and shall not be construed to
create greater rights than are conferred under Federal law, except as specifically
authorized by State statute.
§120.2. General definitions…
§120.3]. Title I public school choice.
(a) For school years prior to the 2018-2019 school year, [Each] each Title I LEA
that has a Title I school in a Priority or Focus designation shall provide all students
enrolled in the school the option to transfer to another public school served by the Title I
LEA at the same grade level that is not a school identified as a persistently dangerous
school pursuant to section 120.5 of this Part, or that is not a Priority or Focus School
pursuant to section 100.18 of this Title, regardless of whether or not such school is
receiving title I funds, to the extent required by section 1116(b)(1)(E) of the NCLB, 20
U.S.C. section 6316(b)(1)(E) (Public Law, section 107-110, section 1116(b)(1)(E), 115
STAT. 1479; Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education
Building, Room 148, Albany, NY 12234); provided, however, that students enrolled in a
school pursuant to public school choice under this section prior to the 2018-2019 school
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 year shall continue to be given the choice to enroll in such school until such student
completes the highest grade level of the school to which the student transferred. For
school years commencing with the 2018-2019 school year, schools required to provide
students enrolled in the school with the option to transfer to another public school served
by the Title I LEA at the same grade level pursuant to section 100.21(i) of this Title shall
be required to comply with this section. Nothing in this section shall be construed to
confer a right to transfer to a magnet school or special focus school having entrance
requirements based on academic or other skills without meeting such requirements, or to
transfer to a school where such transfer would violate health and safety code
requirements or would otherwise be in violation of law. If more than one school served by
the Title I LEA meets the requirements of this subdivision, the Title I LEA shall provide
the parents or other persons in parental relationship to such students with a choice of
more than one such school, and shall take into account the preferences of the parents or
other persons in parental relationship among the choices offered by the Title I LEA.
(b) …
(c) …
(d) Transportation shall be provided to the school the student attends to the extent
required by sections 100.18 100.21 of this Title and the provisions of section 1116(b)(9)
and (13), 20 U.S.C. section 6316(b)(9) and (13) or the applicable provisions of the
Education Law (Public Law, section 107-110, section 1116(b)(9) and (13), 115 STAT.
1486 and 115 STAT. 1487; Superintendent of Documents, U.S. Government Printing
Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State
Education Building, Room 148, Albany, NY 12234).
(e) …
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 (f) …
(g) …
[§120.4]. §120.2. Supplemental educational services…
[§120.5.] §120.3. Unsafe school choice. Each local educational agency shall
ensure that any student who attends a persistently dangerous public elementary or
secondary school, as determined by the [commissioner] Commissioner pursuant to
subdivision (a) of this section, or who is a victim of a violent criminal offense, as defined
pursuant to subdivision (b) of this section, that occurred on the grounds of a public
elementary or secondary school that the student attends, shall be allowed to attend a safe
public school at the same grade level within the local educational agency. For purposes
of this section, a safe public school shall mean a public school that has not been
designated by the [commissioner] Commissioner as a persistently dangerous public
elementary or secondary school.
(a) Persistently dangerous schools. Pursuant to guidelines to be developed by the
[commissioner] Commissioner in consultation with a representative sample of local
educational agencies, the [commissioner] Commissioner shall determine which public
elementary and secondary schools are persistently dangerous. A determination that a
school is persistently dangerous shall be based upon objective information including, at
a minimum, data submitted through the uniform violent incident reporting system,
established pursuant to section 2802 of the Education Law, over a period of two years.
(1) On or before July 1st of each year commencing in 2003, the [commissioner]
Commissioner shall annually notify the local educational agencies of those schools which
the information described in this subdivision indicate may be persistently dangerous
public elementary and secondary schools.
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 (2) Upon notification that a school has been identified for potential designation as
a persistently dangerous public elementary or secondary school, the local educational
agency shall be given the opportunity to present evidence to the [commissioner]
Commissioner that conditions in the school do not unreasonably threaten the safety of
students, that it has taken appropriate action or actions to improve safety at the school,
and any other such evidence in support of its position that the school should not be
designated as persistently dangerous. The [commissioner] Commissioner shall request
local educational agencies to submit, by a date prescribed by the [commissioner]
Commissioner, data for the current school year that is reportable under the uniform violent
incident reporting system and is deemed necessary to make a final determination that a
school should be designated as persistently dangerous. If a local educational agency fails
to submit such data by such date, such final determination shall be based on data on file
with the [commissioner] Commissioner.
(3) The [commissioner] Commissioner shall consider any evidence presented to
him pursuant to paragraph (2) of this subdivision and shall notify the local educational
agency no later than August 1st immediately following his initial notification of the final
determination on whether the school has been designated as a persistently dangerous
public elementary or secondary school.
(b) …
(c) …
(d) ….
(1) Where the [commissioner] Commissioner has determined that a school is a
persistently dangerous public elementary or secondary school, the local educational
agency shall notify the parents of, or persons in parental relation to, all students attending
132

 such school of their right to transfer to a safe public school within the local educational
agency and the procedures for such transfer. The local educational agency shall so notify
the parents of, or persons in parental relation to, all such students no later than 10 days
after such local educational agency has been advised that the [commissioner]
Commissioner has determined that a school is a persistently dangerous public
elementary or secondary school.
(2) ….
(e) Duration of unsafe school choice.
(1) The transfer of a student to a safe public school from a school that has been
designated by the [commissioner] Commissioner as a persistently dangerous public
elementary or secondary school pursuant to the provisions of this section may be either
temporary or permanent, as determined by the local educational agency, provided,
however, that a temporary transfer shall remain in effect at least as long as such student’s
transferring school continues to be identified as persistently dangerous, unless the parent
or other person in parental relationship to the student requests that the student transfer
back to the transferring school pursuant to paragraph (3) of this subdivision. In
determining whether a transfer will be temporary or permanent, a local educational
agency shall evaluate the educational needs of the student and any other relevant factors
affecting such student’s ability to succeed if returned to the transferring school, and shall
make the transfer permanent if such evaluation indicates that a permanent transfer would
be in the best educational interests of the student. For purposes of this subdivision,
permanent transfer shall mean a transfer that ends when the student has completed the
highest grade level in the school such student has transferred to, or when the parent or

133

 other person in parental relationship to the student has requested that the student transfer
back to the transferring school pursuant to paragraph (3) of this subdivision.
(2) …
(3) …
(f) When the [commissioner] Commissioner has designated a school of a local
educational agency as a persistently dangerous public elementary or secondary school,
or when a student has been the victim of a violent criminal offense that occurred on the
grounds of a public elementary or secondary school that the student attends, it shall be
the responsibility of such local educational agency, based on objective criteria, to
designate a safe public school or schools within the local educational agency to which
students may transfer. Nothing in this subdivision shall be construed to require a local
educational agency to designate a safe public school where there are no other public
schools within the local educational agency at the same grade level or such transfer to a
safe public school within the local educational agency is otherwise impossible or to
require a local educational agency that has only one public school within the local
educational agency or only one public school at each grade level to make such a
designation.
(g) …
(h) In the event that a local educational agency fails to comply with the school
choice provisions of this section or section 2802 of the Education Law, the parent or
person in parental relation to a student attending a school that has been designated as
persistently dangerous and the parent, or persons in parental relation to a student who is
the victim of a violent criminal offense, may commence an appeal to the [commissioner]
Commissioner pursuant to section 310 of the Education Law.
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 (i) Removal of persistently dangerous public elementary or secondary school
designation. In the event that a local educational agency believes that a school has
demonstrated the progress necessary to have its designation as a persistently dangerous
public elementary or secondary school removed for the next school year, such local
educational agency may petition the [commissioner] Commissioner to remove such
designation by the date prescribed by the [commissioner] Commissioner. A school’s
designation as persistently dangerous shall not be removed if, in the [commissioner’s]
Commissioner’s judgment, conditions that may contribute to a dangerous environment
remain present at the school.
[§ 120.6. Qualifications of teachers and paraprofessionals.
(a) For the purpose of compliance with the NCLB, a local educational agency shall
ensure that its teachers of core academic subjects are highly qualified in accordance with
the requirements and definitions prescribed in 34 CFR 200.55, 200.56 (Code of Federal
Regulations, revised as of July 1, 2003, title 34, volume 1, Superintendent of Documents,
U.S. Government Printing Office, Washington, DC 20402-0001, 2003; available at the
NYS Education Department, Office of Higher Education, 2M West Wing, Education
Building, 89 Washington Avenue, Albany, NY 12234.) For the purpose of compliance with
the Individuals with Disabilities Education Act (IDEA) and the NCLB, a local educational
agency shall ensure that special education teachers who teach core academic subjects
are highly qualified in accordance with 34 CFR 300.18 (Code of Federal Regulations,
2006 edition, title 34, section 300.18, Federal Register / Vol. 71, No. 156 / August 14,
2006 / pp. 46758-46759—Office of the Federal Register, National Archives and Records
Administration, 800 North Capital Street, NW, Suite 700, Washington, DC 20001;
available at the Office of Vocational and Educational Services for Individuals with
135

 Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234). A local educational
agency shall provide a teacher of core academic subjects who is not new to the profession
the opportunity to meet the NCLB and IDEA requirements to be highly qualified, in part,
through passing the high objective uniform State standard of evaluation (HOUSSE). The
HOUSSE shall be an evaluation, prescribed by the department and conducted locally
either during a pre-employment review or at the time of an annual professional
performance review prescribed in section 100.2(o) of this Title, that enables a teacher
who is beyond the first year of the effective date of the teacher's first teaching certificate,
or in accordance with the provisions of 34 CFR 300.18, to demonstrate subject matter
competency in all core academic
subjects that the teacher teaches. The evaluation shall be based upon objective, coherent
information as prescribed by the department, and shall include, but not be limited to,
information on the teacher's education, credentials, professional experience, and
professional development.
(b) For the purpose of compliance with the NCLB, a local educational agency shall
ensure that a paraprofessional who is hired by the LEA and works in a program supported
with funds under Title I meets qualifications in accordance with the requirements of 34
CFR 200.58 (Code of Federal Regulations, revised as of July 1, 2003, title 34, volume 1,
Superintendent of Documents, U.S. Government Printing Office, Washington, DC 204020001, 2003; available at the New York State Education Department, Office of Higher
Education, 2M West Wing, Education Building, 89 Washington Avenue, Albany, NY
12234.)]

136

 Attachment C
STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE
EMERGENCY ACTION
On December 10, 2015, the Every Student Succeeds Act (ESSA) was signed into
law by President Obama. This bipartisan measure reauthorized the 50-year-old
Elementary and Secondary Education Act, which provides federal funds to improve
elementary and secondary education in the nation's public schools and requires states
and school districts, as a condition of funding, to take a variety of actions to ensure all
children, regardless of race, income, background, or where they live, receive the
education they need to prepare them for success in postsecondary education, careers,
and citizenship. New York State receives approximately $1.6 billion annually in funding
through ESSA.
After an extensive, 18-month long public engagement process, the Department,
with Board approval, submitted New York State’s ESSA plan to the USDE for review on
September 17, 2018. Subsequently, the Department met regularly with the USDE to
provide clarifications on the plan. On January 17, 2018, the USDE approved the State’s
plan. In January 2018, the Department provided the Board of Regents with an update on
the approved plan and in March 2018, the Department provided an update regarding the
financial transparency requirements related to ESSA. In April 2018, the Department
provided Board of Regents with a detailed summary of the proposed amendment and the
Board of Regents voted to authorize Department staff to publish the proposed
amendment in the State Register for the 60-day public comment period so that the
Department had an opportunity to receive as much public comment as possible before
adoption as an emergency rule for the 2018-2019 school year, as required under ESSA.
137

 In order to implement the State’s USDE approved ESSA Plan and to prepare for
implementation of the plan beginning with the 2018-19 school year, a new section 100.21
and amendments to Commissioner's Regulations sections 100.2(ff), 100.2(m), 100.18,
100.19 and Part 120 were made to align the Commissioner's Regulations with the
approved ESSA plan, relating to New York State's updated accountability system.
A Notice of Proposed Rulemaking was published in the State Register on May 9,
2018 and based on comments from the field, revisions were made to the proposed
amendment. As a result, a Notice of Emergency Adoption and Revised Rule Making was
published in the State Register on July 18, 2018. Based on comments received during
the public comment period on the revised rule making, the Department recommends
making further revisions to the regulation. Because the Board of Regents meets at
scheduled intervals, the December 2018 Regents meeting is the earliest the proposed
rule could be presented for adoption, after expiration of the 30-day public comment period
required under the State Administrative Procedure Act for a revised rulemaking.
However, since the 2018-2019 school year began on July 1, 2018 emergency adoption
is necessary for the preservation of the general welfare to ensure that the emergency rule
adopted at the June 2018 Regents and the revisions adopted at the September 2018
Regents meeting remain continuously in effect until the rule can be adopted as a
permanent rule in order to timely implement New York State's approved ESSA plan, so
that school districts may timely meet school/school district accountability requirements for
the 2018-2019 school year and beyond, consistent with the approved ESSA plan and
pursuant to statutory requirements.

It is anticipated that the proposed rule will be

presented to the Board of Regents for permanent adoption at its December 2018 meeting.

138

 Attachment D
ASSESSMENT OF PUBLIC COMMENT
Previously Published as Part of the June 2018 Board of Regents Item
(COMMENT RECEIVED AS OF June 4, 2018)

Following publication of the Notice of Proposed Rule Making in the State
Register on May 9, 2018 through June 4, 2018, the Department received the following
comments on the proposed amendment:
1. COMMENT: A student should be credited as achieving Level 2 on the high
school Composite Performance Level based on whether the student has met the
graduation assessment in the subject as opposed to scoring at least 65 on the
examination. This would ensure equal weighting for students with disabilities who are
eligible for the safety net provision.
DEPARTMENT RESPONSE: No change necessary.

ESSA requires that a

uniform standard be applied to all students in computing Academic Achievement. It would
be inconsistent with ESSA to define achievement levels differently for different groups of
students.
2. COMMENT: The levels assigned to the ELP success ratio should be revised.
The threshold would be a more reliable measure if the Success Ratio for Level 2 were
0.50 to 0.85 (or 0.90) and Level 3 were 0.86 to 1.24.
DEPARTMENT RESP0NSE: No change necessary. The ELP success ratio has
been designed so that schools that have below average performance receive Level 2.
3. COMMENT: The commenter indicates that the proposed regulation allows a
single student to be counted multiple times to determine if there are 30 or more students.
139

 The commenter recommends that there be a minimum of 80% of the students being
counted only once for each of the 3 subject areas. This will prevent the situation where
the results from a very small number of students over two years could result in a school
meeting the minimum n-size of 30 for an accountability group.
DEPARTMENT RESPONSE: The computation of minimum n-size in the draft
regulations is consistent with the requirements of ESSA and New York’s approved ESSA
plan. While it is true that a student may be calculated twice over a two-year period, the
calculation used for minimum n-size was developed to strike a balance between ensuring
reliability of the measure and maximizing the number of students for whom a school is
held accountable. The Department does not believe a change is necessary.
4. COMMENT: Those who are at the 40th or 45th percentile should be assigned a
Level 3 in the conversion chart so that 55 to 60% of the schools will be at Level 3 or 4 on
measures such as Composite Performance or student growth.
DEPARTMENT RESPONSE: These measures have been designed so that
schools that have below average performance receive Level 2. The Department does
not believe that a school that performing at the 40th or 45th percentile should be assigned
Level 3 because these percentiles mean that on average students in the accountability
group have shown less growth than their peers. Therefore, no change is necessary.
5. COMMENT: It seems unfair to expect a newly arrived ELL to graduate within a
four-year window. Perhaps there could be some leeway to examine the graduation of
newly arrived ELLs within a different cohort for graduation and accountability purposes.
DEPARTMENT RESPONSE: Schools have flexibility to determine the appropriate
grade to which to assign a newly arrived ELL. Once a student has been assigned to a
high school cohort, ESSA does not allow for different rules to be applied to how the
140

 graduation rate is computed for English language learners. However, New York uses a
four-, five-, and six-year graduation rate for accountability purposes in recognition of the
fact that some students will need more than four years to graduate from high school. The
Department does not believe any change is warranted.
6. COMMENT: The College Career and Civic Readiness Index is based on the
four-year graduation rate cohort. Although Skills and Achievement Commencement
Credentials are included in the 2.0 weighting and 1.5 weightings, these students typically
do not graduate in 4 years. They are most likely to attend school until they are 21. The
commenter recommends that students with disabilities on track for a Skills and
Achievement Credential should not be held to the four-year graduation criteria.
DEPARTMENT RESPONSE: Ungraded students with disabilities are included in
the Accountability Cohort and the Four-Year, Five-Year, and Six-Year Graduation Rate
Cohorts in the school year in which they attain the age of 17. The Department does not
believe a change is warranted.
7. COMMENT: Several commenters expressed concern with the process by which
the draft regulations were presented to the Board of Regents and believes that the Board
should have seen and had the opportunity to review and discuss the full text of the
proposed regulations prior to their publication as a proposed rulemaking in the State
Register.
DEPARTMENT RESPONSE: At its April 2018 meeting, the Board of Regents was
presented with a detailed summary of the proposed amendment and the Board of
Regents voted to authorize Department staff to publish the proposed amendment in the
State Register for the 60-day public comment period so that the Department had an
opportunity to receive as much public comment as possible before adoption as an
141

 emergency rule for the 2018-2019 school year, as required under ESSA. On April 24, the
Board of Regents was provided with the materials filed with the Department of State for
publication in the State Register, and as soon as the full text was finalized and posted on
the Department’s website on May 9, the text was made available to the Board of Regents.
The Board of Regents will be presented with the full text for emergency adoption at the
June 2018 meeting.
8. COMMENT: Several commenters expressed the position that the proposed
ESSA regulations make a direct frontal assault on the rights of parents to opt-out their
children from the state testing system. This is contrary to the intent of ESSA and good
public policy. Further, a number of these provisions were never discussed in public and
were not detailed in the summary provided to the Board of Regents at the April Regents
meeting.
DEPARTMENT RESPONSE: ESSA requires that LEAs provide parents upon their
request with information on any state or local policy or procedures and parental rights
regarding student participation in mandated assessments, where applicable. ESSA also
makes clear that it does not preempt any state or local law with regard to a parental
decision regarding participation in State assessments.

The proposed regulations,

therefore, contain no provisions relating to the right of parents to opt their children out of
the State assessment system.
ESSA requires that State assessments annually measure the achievement of not
less than 95% of all students, and 95% of all students in each subgroup of students.
Therefore, the proposed regulations, consistent with the requirements of ESSA and New
York’s approved plan, specify how academic achievement is computed and what the
consequences are for schools when, for at least two consecutive years, fewer than 95%
142

 of students in an accountability subgroup do not participate in the grades 3-8 English
language arts or mathematics assessment.
9. COMMENT:

In the plan that New York submitted to the United States

Department of Education, Academic Achievement in elementary/middle ELA and math
was to be computed using the higher of two ways of ranking performance: one using as
the denominator the greater of the number of continuously enrolled students tested or
95% of the number of continuously enrolled students and the other using as the
denominator the number of continuously enrolled students tested.

However, in the

proposed regulations, these two performance scores are added together to calculate the
“Composite Performance Index.” This has the effect of lowering the “score” in schools
with higher opt-out rates for the Composite Performance Index that is then used to identify
schools for CSI and TSI status. The higher score will only be used as a “tiebreaker” when
two schools have the identical Composite Performance Index score.
DEPARTMENT RESPONSE: This revision (to add the two performance scores
together) was made to the State’s ESSA plan based on discussions with the United States
Department of Education that ultimately led to approval of New York’s plan in January
2018. The proposed regulatory provisions conform to the State’s approved ESSA plan.
10. COMMENT: The proposed regulations establish an Academic Progress Index
for each school. This Index is based on performance levels on the ELA and Math
assessments using continuously enrolled students as the student count. This is a
measure used to identify CSI and TSI schools. Several commenters expressed that this
measure penalizes schools with opt-outs since it assumes all students are taking the state
assessments.

143

 DEPARTMENT RESPPONSE: As indicated in the April summary of the proposed
regulations, the Academic Progress Index is computed based upon the State long-term
goals and Measures of Interim Progress (MIPs) in the schools. ESSA requires that goals
and MIPs be computed using as the denominator for the computations the greater of the
number of continuously enrolled students tested or 95% of the number of continuously
enrolled students. These long-term goals and MIPs are computed using the above
denominator as the baseline, thus taking into account that not all students participate in
State assessments.
11. COMMENT: The proposed regulations provide that a school cannot exit CSI
or TSI status if the school has a participation rate below 95 percent, regardless of all other
indicators. This will block schools from exiting CSI or TSI status which otherwise have
met performance targets set by SED.
DEPARTMENT RESPONSE: The proposed regulations provide that a school that
is required to implement a participation rate improvement plan may not exit CSI or and
man not exit TSI status if it is required to implement a participation rate improvement plan
for an accountability group for which it has been identified as CSI. This provision is a
modification of the existing more rigorous provisions pertaining to Priority and Focus
Schools, which require that, in order to exit Priority or Focus status, the school must meet
the 95% participation rate requirement for all groups for which the school is accountable
for two consecutive years.
12. COMMENT: Several commenters expressed concern with the provision that
permits the Commissioner to place under preliminary registration review (SURR) any
school with “excessive percentages of students that fail to fully participate in the state
assessment program.” This authority does not exist in the current SURR regs. If these
144

 regulations are enacted the Commissioner would have the unilateral authority to close
schools that have high opt-out rates but are otherwise high performing.
DEPARTMENT RESPONSE: These are not new requirements.

Section

100.18(k)(3) of the Commissioner’s regulations currently authorizes the Commissioner to
place under registration review any school in “which excessive percentages of students
fail to fully participate in the State assessment program,” and a similar provision has
existed in §100.2(p) for over a decade.
13. COMMENT: Several commenters expresses concerns with the provisions that
permit the Commissioner to impose a financial penalty by requiring districts to set aside
Title I funds if the participation rate on state tests do not improve by the third year. This
provision was not included in the summary provided to the Regents at the April Regents
meeting.
DEPARTMENT RESPONSE: This provision, which permits but does not mandate
that the Commissioner require a set aside to increase student participation, is consistent
with New York’s approved ESSA plan and was referenced in the April Regents summary
as follows:
“In the third year of identification, for any school for which a district audit and district
participation improvement plan was completed in the previous school year and that
fails to improve its participation rates for the subgroup(s) and subject(s) for which
the plan was required, the district must work with a Board of Cooperative
Educational Services (BOCES) to conduct a participation rate audit and develop
an updated participation rate plan.”
“In the fourth year of identification, for any school for which a BOCES audit and
BOCES participation improvement plan was completed in the previous school year
145

 and that fails to improve its participation rates for the subgroup(s) and subject(s)
for which the plan was required, the Department will conduct an audit of the
participation rate and the school may be required by the Commissioner to
undertake additional activities to raise student participation in State assessments.”
14. COMMENT: The proposed regulations require any new collective bargaining
agreement to limit teachers transferring into a CSI school to those rated effective/highly
effective. Many collective bargaining agreements contain provisions that govern the
transfer of teachers. Several commenters expressed concern and believe that this
provision of the draft regulations would impair these existing and long standing collective
bargaining agreements by requiring that any future agreement preclude certain teacher
transfers.
DEPARTMENT RESPONSE: The proposed regulation provides that any such
requirement would not affect current CBAs and would only be applicable to the extent
permitted by law. Therefore, this provision would not impair existing collective bargaining
agreements. No change is warranted.
15. COMMENT:

Districts that create a new school to replace a closed and

restructured SURR/CSI school must select staff that consists “primarily” of experienced
teachers (at least three years) who have been rated Effective/Highly Effective in each of
the past three years and are not currently assigned to the school. Several commenters
expressed concern and believe that this is in an inappropriate intrusion into collective
bargaining.
DEPARTMENT

RESPONSE:

This

provision

is

consistent

with

current

requirements in Commissioner’s regulations §100.18 for implementation of a whole
school reform model, which currently requires that districts review “the quality of all staff
146

 and retain only those who have the ability to be successful in the turnaround effort.”
Nevertheless, in an effort to address the commenter’s concerns, the Department
recommends revising the proposed amendment to make it clear that this provision shall
not abrogate any existing collective bargaining agreement and that any new successor
agreement shall authorize such appointments.
16. COMMENT: The committee that is established to develop the corrective action
plan in schools with high opt-out rates must include teaching and support staff. However,
beginning with the third year of a corrective action plan, only half the staff members can
be selected by the bargaining unit. All staff should be selected by the respective
bargaining units.

Several commenters expressed concern and believe that it is

inappropriate for the administration to select employees to serve on such committees.
DEPARTMENT RESPONSE: This provision is applicable only after a school has failed to
improve its participation rate following two years of implementing a participation rate
improvement plan. The intent is to allow districts to select teachers to participate in
development of the next plan who may have new ideas for increasing participation rates.
Therefore, the Department does not believe any change is warranted.

147

 Attachment E

ASSESSMENT OF PUBLIC COMMENT
(COMMENT RECEIVED AS OF AUGUST 17, 2018)

Following publication of the Notice of Proposed Rule Making in the State
Register on May 9, 2018 through August 17, 2018, the Department received the
following comments on the proposed amendment. These comments include those listed
in Attachment D that had been received between May 9 and June 4, but the
Department’s response has been updated in some instances:
1.

COMMENT: A student should be credited as achieving Level 2 on the high

school Composite Performance Level based on whether the student has met the
graduation assessment in the subject as opposed to scoring at least 65 on the
examination. This would ensure equal weighting for students with disabilities who are
eligible for the safety net provision.
DEPARTMENT RESPONSE: No change necessary. ESSA requires that a
uniform standard be applied to all students in computing Academic Achievement. It
would be inconsistent with ESSA to define achievement levels differently for different
groups of students.
2.

COMMENT: The levels assigned to the ELP success ratio should be

revised. The threshold would be a more reliable measure if the Success Ratio for Level
2 were 0.50 to 0.85 (or 0.90) and Level 3 were 0.86 to 1.24.
DEPARTMENT RESP0NSE: No change necessary. The ELP success ratio has
been designed so that schools that have below average performance receive Level 2.
148

 3.

COMMENT: The commenter indicates that the proposed regulation allows

a single student to be counted multiple times to determine if there are 30 or more
students. The commenter recommends that there be a minimum of 80% of the students
being counted only once for each of the 3 subject areas. This will prevent the situation
where the results from a very small number of students over two years could result in a
school meeting the minimum n-size of 30 for an accountability group.
DEPARTMENT RESPONSE: The computation of minimum n-size in the draft
regulations is consistent with the requirements of ESSA and New York’s approved
ESSA plan. While it is true that a student may be calculated twice over a two-year
period, the calculation used for minimum n-size was developed to strike a balance
between ensuring reliability of the measure and maximizing the number of students for
whom a school is held accountable. However, the Department has made changes to
the regulations to make it less likely that an elementary or middle school that has been
assigned a Weighted Average Achievement Level will not be assigned a Core Subject
Performance Level or a high school that is assigned a Composite Performance Level is
not assigned a Graduation Rate Level. This has been accomplished by lowering the nsize to 15 for assignment of a Level in certain instances for the Core Subject
Performance measure and the 4-, 5-, and 6-year Graduation Rate measures.
4.

COMMENT: Those who are at the 40th or 45th percentile should be

assigned a Level 3 in the conversion chart so that 55 to 60% of the schools will be at
Level 3 or 4 on measures such as Composite Performance or student growth.
DEPARTMENT RESPONSE: These measures have been designed so that
schools that have below average performance receive Level 2. The Department does
not believe that a school performing at the 40th or 45th percentile should be assigned
149

 Level 3 because these percentiles mean that on average students in the accountability
group have shown less growth than their peers. Therefore, no change is necessary.
5.

COMMENT: It seems unfair to expect a newly arrived ELL to graduate

within a four-year window. Perhaps there could be some leeway to examine the
graduation of newly arrived ELLs within a different cohort for graduation and
accountability purposes.
DEPARTMENT RESPONSE: Schools have flexibility to determine the
appropriate grade to which to assign a newly arrived ELL. Once a student has been
assigned to a high school cohort, ESSA does not allow for different rules to be applied
to how the graduation rate is computed for English language learners. However, New
York uses a four-, five-, and six-year graduation rate for accountability purposes in
recognition of the fact that some students will need more than four years to graduate
from high school. The Department does not believe any change is warranted.
6.

COMMENT: The College Career and Civic Readiness Index is based on

the four-year graduation rate cohort. Although Skills and Achievement Commencement
Credentials are included in the 2.0 weighting and 1.5 weightings, these students
typically do not graduate in 4 years. They are most likely to attend school until they are
21. The commenter recommends that students with disabilities on track for a Skills and
Achievement Credential should not be held to the four-year graduation criteria.
DEPARTMENT RESPONSE: Ungraded students with disabilities are included in
the Accountability Cohort and the Four-Year, Five-Year, and Six-Year Graduation Rate
Cohorts in the school year in which they attain the age of 17. The Department does not
believe a change is warranted.

150

 7.

COMMENT: Several commenters expressed concern with the process by

which the draft regulations were presented to the Board of Regents and believes that
the Board should have seen and had the opportunity to review and discuss the full text
of the proposed regulations prior to their publication as a proposed rulemaking in the
State Register.
DEPARTMENT RESPONSE: At its April 2018 meeting, the Board of Regents
was presented with a detailed summary of the proposed amendment and the Board of
Regents voted to authorize Department staff to publish the proposed amendment in the
State Register for the 60-day public comment period so that the Department had an
opportunity to receive as much public comment as possible before adoption as an
emergency rule for the 2018-2019 school year, as required under ESSA. On April 24,
the Board of Regents was provided with the materials filed with the Department of State
for publication in the State Register, and as soon as the full text was finalized and
posted on the Department’s website on May 9, the text was made available to the Board
of Regents. The Board of Regents was presented with the full text for emergency
adoption at the June 2018 meeting.
8.

COMMENT: Several commenters expressed the position that the

proposed ESSA regulations make a direct frontal assault on the rights of parents to optout their children from the state testing system. Commenters expressed the position that
the Department should not seek to punish schools where parents and student exercise
their right to opt out, and they strongly encouraged the Department to remove this
provision in the draft regulations and respect parents’ and students’ rights to opt out.
According to the commenters, creating new high stakes consequences for schools with
high opt out rates is a significant step in the wrong direction. Several commenters stated
151

 that all educational factors in a school should be used when assessing its effectiveness
rather than primarily focusing on one assessment. This is contrary to the intent of ESSA
and good public policy. Further, a number of these provisions were never discussed in
public and were not detailed in the summary provided to the Board of Regents at the
April Regents meeting.
DEPARTMENT RESPONSE: ESSA requires that LEAs provide parents upon their
request with information on any state or local policy or procedures and parental rights
regarding student participation in mandated assessments, where applicable. ESSA also
makes clear that it does not preempt any state or local law with regard to a parental
decision regarding participation in State assessments.

The proposed regulations,

therefore, contain no provisions relating to the right of parents to opt their children out of
the State assessment system.
.
In a letter received by the Department on August 23, 2018, Mr. Patrick Rooney,
Deputy Director of the USDE’s Office of State Support, reiterated that each state and
local educational agency “must implement a set of high-quality, yearly, academic
assessments that includes at a minimum, assessments in mathematics,
reading/language arts, and science to all public elementary and secondary school
students….This requirement does not permit certain students or a specific percentage
of students to be excluded from assessments. Rather it sets out the rule that all
students in tested grades must be assessed.” ESSA requires that State assessments
annually measure the achievement of not less than 95% of all students, and 95% of all
students in each subgroup of students. Therefore, the proposed regulations, consistent
with the requirements of ESSA and New York’s approved plan, specify how academic
152

 achievement is computed and what the consequences are for schools when, for at least
two consecutive years, fewer than 95% of students in an accountability subgroup do not
participate in the grades 3-8 English language arts or mathematics assessment.
9.

COMMENT: In the plan that New York submitted to the United States

Department of Education, Academic Achievement in elementary/middle ELA and math
was to be computed using the higher of two ways of ranking performance: one using as
the denominator the greater of the number of continuously enrolled students tested or
95% of the number of continuously enrolled students and the other using as the
denominator the number of continuously enrolled students tested. However, in the
proposed regulations, these two performance scores are added together to calculate
the “Composite Performance Index.” This has the effect of lowering the “score” in
schools with higher opt-out rates for the Composite Performance Index that is then used
to identify schools for CSI and TSI status. The higher score will only be used as a
“tiebreaker” when two schools have the identical Composite Performance Index score.
DEPARTMENT RESPONSE: This revision (to add the two performance scores
together) was made to the State’s ESSA plan based on discussions with the United
States Department of Education that ultimately led to approval of New York’s plan in
January 2018. The proposed regulatory provisions conform to the State’s approved
ESSA plan.
10.

COMMENT: The proposed regulations establish an Academic Progress

Index for each school. This Index is based on performance levels on the ELA and Math
assessments using continuously enrolled students as the student count. This is a
measure used to identify CSI and TSI schools. Several commenters expressed that this

153

 measure penalizes schools with opt-outs since it assumes all students are taking the
state assessments.
DEPARTMENT RESPONSE: As indicated in the April summary of the proposed
regulations, the Academic Progress Index is computed based upon the State long-term
goals and Measures of Interim Progress (MIPs) in the schools. ESSA requires that
goals and MIPs be computed using as the denominator for the computations the greater
of the number of continuously enrolled students tested or 95% of the number of
continuously enrolled students. These long-term goals and MIPs are computed using
the above denominator as the baseline, thus taking into account that not all students
participate in State assessments.
11.

COMMENT: The proposed regulations provide that a school cannot exit

CSI or TSI status if the school has a participation rate below 95 percent, regardless of
all other indicators. This will block schools from exiting CSI or TSI status which
otherwise have met performance targets set by SED.
DEPARTMENT RESPONSE. The regulations have been revised so that schools
can be removed from TSI and CSI status so long as the accountability group(s) for
which the school is required to do a participation rate improvement plan are not
performing at Level 1 on the Weighted Average Achievement measure.
12.

COMMENT: Several commenters expressed concern over the provision

that permits the Commissioner to place under preliminary registration review (SURR)
any school with “excessive percentages of students that fail to fully participate in the
state assessment program.” This authority does not exist in the current SURR regs. If
these regulations are enacted the Commissioner would have the unilateral authority to
close schools that have high opt-out rates but are otherwise high performing.
154

 DEPARTMENT RESPONSE: These are not new requirements. Section
100.18(k)(3) of the Commissioner’s regulations currently authorizes the Commissioner
to place under registration review any school in “which excessive percentages of
students fail to fully participate in the State assessment program,” and a similar
provision has existed in §100.2(p) for over a decade. The Commissioner will only use
this authority in the most unusual and egregious situations. In fact, although this
provision has been in place for at least a decade, this provision has never been
implemented.

Additionally, while the provision allows the Commissioner to place a

school under registration review, it does not require that the school be closed.
13.

COMMENT: Several commenters expressed concerns with the provisions

that permit the Commissioner to impose a financial penalty by requiring districts to set
aside Title I funds if the participation rate on state tests do not improve by the third year.
This provision was not included in the summary provided to the Regents at the April
Regents meeting.
DEPARTMENT RESPONSE: In response to public comment received, the
regulations have been revised to remove this provision. However, to be clear, the
comment is inaccurate in its characterization of this provision of the regulations. This
provision permitted, but did not mandate, that the Commissioner require a set aside to
be used to increase student participation, and the set aside was not a financial penalty,
but rather represented the possibility of the school district redirecting funds for this
purpose.
However, in response to public comment received, this provision has been
removed and a new provision has been substituted, which provides that for any school
for which the Department conducts an audit based on a minimum of five years of low
155

 participation rates, the school may be required to undertake additional activities to raise
student participation rates on State assessments.
14.

COMMENT: The proposed regulations require any new collective

bargaining agreement to limit teachers transferring into a CSI school to those rated
effective/highly effective. Many collective bargaining agreements contain provisions that
govern the transfer of teachers. This provision of the draft regulations would impair
these existing and long-standing collective bargaining agreements by requiring that any
future agreement preclude certain teacher transfers.
DEPARTMENT RESPONSE: The proposed regulation provides that any such
requirement would not affect current collective bargaining agreements (CBAs) and
would only be applicable to the extent permitted by law. Therefore, this provision would
not impair existing CBAs. No change is warranted.
15.

COMMENT: Districts that create a new school to replace a closed and

restructured SURR/CSI school must select staff that consists “primarily” of experienced
teachers (at least three years) who have been rated Effective/Highly Effective in each of
the past three years and are not currently assigned to the school. Several commenters
expressed concern and believe that this is in an inappropriate intrusion into collective
bargaining.
DEPARTMENT RESPONSE: This provision is consistent with current
requirements in Commissioner’s regulations §100.18 for implementation of a whole
school reform model, which currently requires that districts review “the quality of all staff
and retain only those who have the ability to be successful in the turnaround effort.”
The emergency regulations adopted in June make it clear that this provision shall not

156

 abrogate any existing collective bargaining agreement and that any new successor
agreement shall authorize such appointments.
16.

COMMENT: The committee that is established to develop the corrective

action plan in schools with high opt-out rates must include teaching and support staff.
However, beginning with the third year of a corrective action plan, only half the staff
members can be selected by the bargaining unit. All staff should be selected by the
respective bargaining units. Several commenters expressed concern and believe that it
is inappropriate for the administration to select employees to serve on such committees.
DEPARTMENT RESPONSE: This provision is applicable only after a school has
failed to improve its participation rate following two years of implementing a participation
rate improvement plan. The intent is to allow districts to select teachers to participate in
development of the next plan who may have new ideas for increasing participation
rates. Therefore, the Department does not believe any change is warranted.
17.

COMMENT: Several commenters expressed concern surrounding the

content and administration of the 3-8 assessments. Although required by ESSA, many
commenters expressed dismay over the impact the act of taking the assessments has
on children, and the rigidity of a statewide assessment system which does not allow for
local control of student assessments.
DEPARTMENT RESPONSE: This comment is outside the scope of the
regulations. Therefore, no response is necessary.
Nevertheless, the Department responds that the assessments within the New
York State Testing Program are rigorously developed to measure the extent to which
students achieve the New York State Learning Standards. New York State teachers
certified in teaching the specific content area participate in all important steps in the
157

 process of developing the tests including, but not limited to, writing test questions,
selecting test questions for each administration of the examinations, rating student
responses, and establishing standards for passing and achieving mastery. The final
decisions regarding which questions to include on each test are made by teachers of
that grade level. This helps to ensure that the tests are developmentally appropriate and
reflect what is happening in classrooms across the state. No revisions are necessary.
18.

COMMENT: A commenter asked the Department to consider eliminating

the requirement that the school comprehensive education plan (SCEP) developed by
TSI schools and the district comprehensive improvement plan (DCIP) developed by
Target districts be formally approved by the board of education. For TSI schools, under
ESSA, the requirement that the SCEP be submitted to NYSED for review and approval
has been eliminated. The SCEP will instead be reviewed by the district. Likewise, the
proposed regulations do not require that the DCIP be submitted to NYSED for review
and approval. Therefore, the need for the SCEP and DCIP to be formally approved by
the board of education is unnecessary and an unduly regulatory burden. The benefit
derived by NYSED by requiring formal approval of the SCEP and DCIP by the board of
education is not apparent and this approval should be eliminated or, at the very least,
made optional. The SCEP and DCIP will be developed, reviewed, approved, and
monitored locally and, as such, the decision as to whether these plans require board of
education approval should similarly be locally made.
DEPARTMENT RESPONSE: Because implementation of DCIPs and SCEPs
are best accomplished through the collective effort of all stakeholders and may require a
reallocation of resources, the Department believes that it is important that Boards of

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 Education, as the chief policymakers for school districts, review and approve these
plans, regardless of whether they must be submitted to the Department.
19.

COMMENT: A commenter expressed the position that the regulations give

money to private industries in the form of charter schools, which unfairly punishes
districts with high percentages of students from low-income families.
DEPARTMENT RESPONSE: The regulations relate to the implementation of
New York’s approved ESSA plan, and as such the comment is outside the scope and
no response is necessary.
20.

COMMENT: Commenter expressed concern related to the exit criteria for

schools designated as CSI or TSI. Specifically, commenter opposes conditioning such
removal for schools on the absence of a participation rate improvement plan.
Commenter expressed concern related to the operational implications of retaining
schools in accountability status because of conditions beyond their control and
unrelated to student nonperformance. Must such schools continue to implement
improvement strategies that are no longer relevant or appropriate? Will school districts
be precluded from redistributing resources previously allocated for such schools to
others still in need of improvement?
DEPARTMENT RESPONSE:

In response to public comment received, the

regulations have been revised so that a school implementing a Participation Rate
Improvement Plan would be eligible for removal from CSI or TSI status so long as the
accountability group(s) for which a plan is required is/are not performing at Level 1 on
the Weighed Academic Achievement Index.
21.

COMMENT: Commenter expressed the opinion that the design of the

participatory budgeting process is more prescriptive and usurps the statutory authority
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 of school boards to make decisions regarding the allocation and distribution of local
resources for school purposes. Decisions related to the expenditure of revenues that
are raised locally for school purposes rest exclusively within the authority of school
boards. These issues can and should be resolved through use of the Plan’s
collaborative process.
DEPARTMENT RESPONSE: The Department routinely requires that funds be
set aside to implement provisions of school improvement plans. However, the
regulations have been amended to allow schools to select alternate forms of promoting
parent and student engagement from a list determined by the Commissioner in lieu of
setting aside funds to support participatory budgeting.
22.

COMMENT: Commenter expressed concern over the provisions that

require CSI schools that are required to provide public school choice but are unable to
do so to expend additional funds for participatory budgeting. Such process contravenes
the statutory authority of school boards over the allocation and distribution of local
resources for school purposes. Additionally, without limitations on the expenditure of
such additional moneys, implementation of this requirement could result in the diversion
of funds away from educational services and supports necessary to improve student
achievement outcomes and the school’s underperformance.
DEPARTMENT RESPONSE:

The Department routinely requires that funds be

set aside to implement provisions of school improvement plans. Participatory Budgeting
is intended to be a vehicle to increase communication and understanding about the
needs that exist between the school and stakeholders. However, the regulations have
been amended to allow schools to select alternate forms of promoting parent and

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 student engagement from a list determined by the Commissioner in lieu of setting aside
funds to support participatory budgeting.

23.

COMMENT: Commenter expressed concern that the calculation of the

amount of funds required for participatory budgeting could rise exponentially.
Additionally, there is a lack of limitations on the scope and duration of the financial
obligations imposed by this requirement, and that the potential fiscal liability of school
districts under such circumstances would certainly have a direct impact on the
education of all students in any given school.
DEPARTMENT RESPONSE: The regulations have been clarified to specify that
the additional amount to be spent on participatory budgeting is based on the school’s
first year allocation for participatory budgeting and does not continue to double or triple
each year (for example, if a school spent $2,000 for participatory budgeting in Year 1,
then a school that is unable to accommodate any transfer requests must spend $6,000
in Year 2 and $6,000 in Year 3 if the school remains identified for CSI and is unable to
offer any transfers).
24.

COMMENT: Commenter opposed the provision that requires CSI schools

to provide public school choice if they experience a decline in their Core Subject
Performance Index if an elementary or middle school, or their Composite Performance
Index for two consecutive years (elementary or middle) or a decline in the Composite
Performance Index for two consecutive years (high school). Commenter opposes this
provision indicating that ESSA no longer requires public school choice, but instead
makes school choice an option at the discretion of a local educational agency (school
district) at 20 USC 6311(d)(1)(D)).
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 DEPARTMENT RESPONSE: The amendments to ESSA continue to permit
public school choice as an intervention for identified schools, provided that there is no
state law prohibiting such intervention. Therefore, no change is necessary.
25.

COMMENT: Commenter opposes the use of public school choice as an

intervention, indicating that such intervention does not always support school
improvement or better opportunities for students. Additionally, the commenter
expressed concern that those shortcomings can be made worse by the automatic
increase of participatory budgeting funds which can be spent in ways not necessarily
connected to a school district’s efforts to mitigate the conditions that prevent it from
being able to offer public school choice.
DEPARTMENT RESPONSE: The Department routinely requires that funds
be set aside to implement provisions of school improvement plans. The New York State
ESSA plan has been developed to allow flexibility to identified districts and schools that
make progress, while providing additional support and oversight to the districts and
schools that do not make gains. However, the Department recognizes that all students
deserve access to a quality education, and if a school that had been identified continues
to decline for two consecutive years after identification as a CSI school, the Department
would be concerned about the LEA’s ability to improve outcomes at the school and
would want to provide additional options to the students attending this school. The
increase to participatory budgeting expenditures would only occur in schools that do not
make gains for two consecutive years AND are unable to provide public school choice.
Schools that are able to offer public school choice would not be required to offer an
additional amount toward participatory budgeting. In addition, the regulations have

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 been amended to give schools alternate opportunities to promote parent and student
engagement in lieu of setting aside of local funds to support participatory budgeting.
26.

COMMENT: Commenter expressed concern surrounding the impact of the

n-size on schools housing grades K-3, indicating that it seems somewhat unreasonable
for smaller K-3 elementary schools to be evaluated within a system that would base
student performance outcomes solely on achievement at one grade level (third), with
subgroups that might barely reach the minimum “n.” At the very least, these schools are
susceptible to significantly fluctuating performance/achievement indices from one year
to the next. Further, as there would be no growth index available for these schools nor
science assessments administered (in addition to ELA and math), an accountability
determination would be made based on particularly limited criteria.
DEPARTMENT RESPONSE: Schools with a grade K-3 configuration will be
able to be evaluated based upon the Composite Performance Level indicator, the
Academic Progress Indicator, the Chronic Absenteeism Indicator, and the English
language proficiency indicator. The only indicator to which these schools would not be
subject is student growth. Should a school believe its preliminary designation is
incorrect, consistent with the regulation, the district may appeal that designation and
provide evidence to support the school receiving a different designation.
27.

COMMENT: For students taking Algebra I in Grade 8: The regulations

indicate that when a student passes the Algebra I Regents examination in grade 8, this
result counts toward middle school accountability only (assuming the grade 8
assessment is not administered to the student as well). As such, should the student
elect to improve upon a score at the high school level, a higher score earned on the
Algebra I Regents would not contribute to high school accountability – even in a case
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 where a student’s score might increase from 65 to 90, for example. That seems
counterintuitive, as it would seem that high school instruction would have made a
considerable difference in the student’s performance on the re-take in such a situation.
DEPARTMENT RESPONSE: Consistent with the requirements of ESSA, a
student who passes a Regents exam in middle school in lieu of taking the grade level
assessment must take a more rigorous exam in high school for the high school to
receive accountability credit. Results on the same Regents exam may not be used to
give credit to both a middle school and a high school.
28.

COMMENT: Multiple commenters expressed concern that the

performance index computation awards a Level 2 performance in Algebra the same
credit as a Level 2 performance in higher level math courses such as Geometry and
Algebra 2. Commenters suggested adjusting/lowering the Level 3 score for Algebra 2
and Geometry to reward students who have met success in those courses.
DEPARTMENT RESPONSE: High schools receive credit for the best
performance of a student on a Regents examination in a subject using the performance
levels associated with the examination. Therefore, no change is necessary.
29.

COMMENT: Commenter advocates for the discontinuance of statewide

assessments for 3rd through 5th graders to allow teachers/administration to assess
whether a child should be able to go to the next grade. The commenter argued that
teachers know how a child learns or approaches solving problems, and statewide tests
may not allow for that.
DEPARTMENT RESPONSE: ESSA requires that all students in grades 3-8 be
assessed annually in English language arts and mathematics using a common valid and
reliable assessment. However, both the Education Law and Commissioner’s
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 regulations prohibit the use of the assessments as the primary basis by which decisions
are made to promote or retain students.
30.

COMMENT: A commenter expressed concern about graduation rate

targets being set at 95%, 96% and 97%, and the impact of those on small schools.
When graduating a class of 17 students, just one failure causes the school to miss this
target. Schools with such a small graduating class are most likely rural and poor, thus
increasing the odds of a student who may not graduate. The commenter suggested that
there should be rigor but not when it places more stress on small, rural, poor districts
with high percentages of students with learning disabilities.
DEPARTMENT RESPONSE: The commenter is referring to the state’s “end
goal.” Schools can achieve the highest performance level (4) for graduation rate by
either exceeding the state long-term goal or meeting the state long-term goal and the
school’s Measure of Interim Progress, if it is higher than the state long-term goal.
Schools do not have to meet the end goal to receive a Level 4 on this indicator. It
should also be noted that schools are only accountable for graduation rate cohorts in
which there are at least 30 student results or, as a result of a proposed change to the
regulations, 15 student results in those situations where a Composite Performance
Level has been assigned to a group.
31.

COMMENT: A few commenters expressed concern that requiring English

Language Learners to sit for the state assessments one-year into their arrival is
untenable. Students should sit for the exam when their classroom teacher and ELL
teacher determine that they are ready.
DEPARTMENT RESPONSE: The State Education Department sought a waiver
from the United States Department of Education to extend the exemption for newly
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 arrived ELLs from participation in the ELA exam. Since this waiver is not approved, the
Department must adhere to the requirements of ESSA that these students participate in
the ELA examination after they have received on year of instruction.
32.

COMMENT: Commenter expressed that ESSA provisions

1111(c)(4)(E)(iii) and 1111 (e)(1)(B)(iii)(XI) make it clear that individual states, not
USDOE, determine how opt-outs will factor into the accountability system. Commenter
questioned the inclusion of the participation rate plan into the regulation, and suggests
that if USDOE conditioned its approval of New York’s ESSA plan on such requirement,
then USDOE has exceeded its statutory authority in opposition to Congressional intent.
DEPARTMENT RESPONSE: In a letter received by the Department on August
23, 2018, Mr. Patrick Rooney, Deputy Director of the USDE’s Office of State Support,
wrote that with respect to a State's accountability system the ESEA requires an SEA to
calculate the Academic Achievement indicator to account for assessment participation
rates. According to Mr. Rooney, “ESEA section 1111 (c)(4)(E)(ii) specifically requires
that an SEA include in the denominator of this indicator the greater of (1) 95 percent of
all students (or 95 percent of students in each subgroup, as the case may be) or (2) the
number of students participating in the assessments. Thus, the statute allows for up to
five percent of students to not participate in annual reading/language arts and
mathematics assessment without it factoring into the calculation of the Academic
Achievement indicator.” Mr. Rooney further wrote that: “In addition, each State is
required to implement with fidelity the consolidated State plan it submitted and
Secretary DeVos approved, including the requirement in section A.4.vii to describe the
State's annual measurement of achievement to factor in the requirement for 95 percent
student participation in the statewide reading/language arts and mathematics
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 assessments. The New York State Education Department (NYSED) indicated in its
consolidated State plan a series of actions it would take if any LEA or school exhibited a
consistent pattern of testing fewer than 95 percent of all students and/or fewer than 95
percent of students in a particular subgroup, including that it would require schools that
fail to meet the 95 percent participation requirement to submit a self-assessment and
participation rate improvement plan to NYSED for the Commissioner's approval no less
than three months prior to the next test administration period.” Finally, Mr. Rooney
noted that should a state not meet the 95% participation requirement, the Secretary of
Education could take actions that include “sending a written request to the SEA that it
come into compliance, increasing monitoring, placing a condition on the SEA's Title I,
Part A grant award, placing the SEA on high-risk status (2 C.F.R. §§200.207 and
3474.10), issuing a cease and desist order (GEPA section 456 (20 U.S.C. §1234e)),
entering into a compliance agreement with the SEA to secure compliance (GEPA 457
(20 U.S.C. §1234f)), withholding all or a portion of the SEA's Title I, Part A
administrative funds (ESEA section 1111(a)(7) (20 U.S.C. §6311 (a)(7))), and
suspending, and then withholding, all or a portion of the State's Title I, Part A
programmatic funds (GEPA section 455 (20 U.S.C. §1234d)).”
Nevertheless, in response to feedback from stakeholders, the Department
proposed a number of revisions to the regulations, including eliminating the requirement
for a participation rate plan if a school has a Weighted Average Achievement Level of 3
or above; revising the requirement that a school otherwise eligible for removal from TSI
or CSI status remain identified if the school is implementing a participation rate
improvement plan by limiting this provision to subgroups that perform at Level 1 on the
Weighted Average Achievement Indicator; and eliminating the requirement that the
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 Commissioner may require schools that have received a State participation rate audit
set aside a portion of the district’s Title I funds to support implementation of the audit’s
recommendations.
33.

COMMENT: A commenter applauded the inclusion of Chronic

Absenteeism as one of the metrics in the current regulations. The commenter
suggested several different ways to measure the average number of instructional hours
per student per year achieved by the district. This should be computed by adding the
number of minutes per day of instruction with a qualified educator, subtracting days for
absence or suspension; also subtracting days or half days for superintendents
conferences or school cancellations; also subtracting days for state-mandated
assessments or practice assessments. Use of this metric could encourage productive
policies like better block scheduling and limiting non-educational superintendent
conference days, as well as programs to decrease absenteeism and minimize
suspensions. A variation would be to weight educational hours by the number of
educators in the room (with qualified teachers counting higher than aides) and also
inversely by the number of students in the room. This may be a particularly informative
measure for the Students with Disabilities subgroup, where levels of support for
students in integrated classrooms can vary significantly across programs.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive, but the Department notes that it has adopted the United States Department
of Education’s definition for measuring Chronic Absenteeism.
34.

COMMENT: A commenter praised the inclusion of Career and Technical

Education in components of the Plan.

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 DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
35.

COMMENT: A commenter praised the balance given to participation rates

in the regulations. The commenter also praised the inclusion of credit for 4-6 year
graduates as well as GED completers.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
36.

COMMENT: A commenter suggested that the testing window is too long

and the test format should be shorter to allow schools to more readily use the data.
DEPARTMENT RESPONSE: The comment is outside of the scope of the
regulations. Therefore, no response is necessary. However, in 2017, the Board of
Regents decided to reduce the number of test sessions on the Grades 3–8 English
Language Arts and Mathematics Tests from three sessions to two, effective with the
2018 administration. The length of the testing window is designed to allow sufficient
time to administer the tests and provide make-ups for those students who are absent
during the designated administration date(s). In addition, the window is necessary to
provide flexibility for schools that are closed due to unexpected events, such as power
outages, and to provide the multiple-day testing accommodation to students pursuant to
an Individualized Education Program (IEP) or 504 plan.
37.

COMMENT: A commenter noted several semantic suggestions and/or

inconsistencies throughout the plan (e.g., “Composite Performance Achievement Level”
versus “Composite Performance Level”).

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 DEPARTMENT RESPONSE: Technical, non-substantive revisions have been
made to the regulations as appropriate to address any inconsistencies in the terms of
the regulations .
38.

COMMENT: A commenter expressed concern that the instrument used to

measure academic progress is biased, and that authentic local tests and portfolio
assessments more accurately show student progress.
DEPARTMENT RESPONSE: No change necessary. Hundreds of New York
State educators are involved in creating and reviewing questions for the Grades 3-8
ELA and Math Tests, including selecting the questions for the test forms. The
assessments feature test questions written by New York State teachers specifically for
the annual New York State tests. Teachers from across the State serve on committees
to write, evaluate and select questions for the tests to help ensure fairness and freedom
from bias.
39.

COMMENT: A commenter suggested NYSED revamp the state exams

and the way in which they are scored, as well as the Common Core standards on which
they are based, to improve their fairness, reliability, validity, and diagnostic utility, and
ensure that they are less onerous and stressful for children.
DEPARTMENT RESPONSE: No change necessary. In 2015, New York State
(NYS) began a process of review and revision of its current English Language Arts
(ELA) and Mathematics Learning Standards. The New York State Next Generation
English Language Arts and Mathematics Learning Standards (Revised 2017) were
developed through numerous phases of public comment as well as virtual and face-toface meetings with committees consisting of NYS educators, teachers of English
Language Learners/Multilingual Learners and differently abled students, parents,
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 curriculum specialists, school administrators, college professors, and experts in
cognitive research. These revised standards reflect the collaborative efforts and
expertise among all constituents involved.
The State Education Department is working with District Superintendents,
superintendents, the Staff and Curriculum Development Network, and teacher centers
to provide guidance on professional development for teachers to implement the new
standards. The projected timeline for new grade 3-8 tests measuring the Next
Generation Learning Standards is Spring 2021.
Based on extensive feedback, NYSED removed time limits from the tests
in 2016. In general, this means that as long as students are working productively, they
will have as much time as they need to complete each test session, within the confines
of the regular school day.
In 2017, the Board of Regents decided to reduce the number of test
sessions on the Grades 3–8 English Language Arts and Mathematics Tests from three
sessions to two, effective with the 2018 administration. Fewer test sessions lessen test
fatigue for students and better enable them to demonstrate what they know and are
able to do.
40.

COMMENT: The plan states that “a district or charter school may add any

other appropriate information” to the New York State report card. We request that this
item be amended to provide examples of the types of information that districts may add
to their State Report Card. Within the state ESSA plan (page 44), the NY Board of
Regents has committed to incorporating additional measures of school quality and
student success into the state’s accountability system over time, and to regularly
publishing a set of indicators (not part of the accountability system) that highlight school
171

 conditions and student opportunities to learn. These indicators will provide parents and
others with information that creates a more comprehensive picture of a school’s efforts
for continual improvement around attendance and supporting the whole child. We
particularly support the indicators focused on school climate and safety, access to
specific learning opportunities including physical education, and teacher turnover,
absence, and working conditions, and recommend that these items be highlighted within
the regulations.
DEPARTMENT RESPONSE: The regulation has been revised to make clear
that districts may include additional information on the report card. The revised
regulation includes examples that districts may include on the report card, including
indicators of school climate and safety; access to specific learning opportunities
including physical education; and teacher turnover, absence, and working conditions.
41.

COMMENT: We commend NYSED’s use of the diagnostic tool for school

and district effectiveness (DTSDE) as the primary tool for comprehensive needs
assessments. The DTSDE includes data collection on Student Social and Emotional
Developmental Health and Family and Consumer Engagement, but lacks data collection
around indicators of physical health and the health and wellness environment within the
school. We therefore request that this item be amended to include the following types of
data in addition to the DTSDE: Data from the New York State Physical Education
Profile; information about the health status of students such as the number of students
attending school with asthma, diabetes, or other chronic health conditions (this data is
available in student health information cards and from local public health agencies);
school climate and safety, such as through the U.S. Department of Education’s School
Climate Survey; school discipline policies; school health policies and practices using the
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 Healthier Generation’s Healthy Schools Program assessment; staffing patterns, such as
the ratio of qualified health professionals to students, including but not limited to school
nurses, social workers, and school counselors, using district human resources data; and
free-and reduced-priced percentages, participation in community eligibility provision,
and participation in school lunch and breakfast programs (as compared to eligibility).
DEPARTMENT RESPONSE:
The Department recognizes the importance of social-emotional learning, school
climate, and student physical health and wellness, and anticipates that each of these
will be reviewed and analyzed as part of the multifaceted Needs Assessment process.
This process will include a review of specific data related to many of the indicators
suggested in the commenter’s letter, including school climate data, school safety and
discipline data, and the ratio of qualified health professionals to students. The
Department will also consider the U.S. Department of Education’s School Climate
Survey to fulfil the survey requirement for students, parents, and teachers when LEAs
supplement the School Climate Survey with additional questions on instruction and
leadership identified by the Department. In addition to incorporating these various
indicators into the Needs Assessment process, the on-site Needs Assessment will
include a component that reviews how the school has analyzed and addressed these
data and how the school has developed systems and structures to support student’s
health and well-being.
42.

COMMENT: Commenter recommends that the annual surveys of parents,

staff, and students conducted by CSI and TSI schools, include parent (and those in
parental relations to the student), staff, and student perceptions of the “Physical Health
and Wellness Environment” within the school. A positive health and wellness
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 environment contributes to school climate, social emotional health, and family
engagement, as well as to student attendance and academic outcomes.
DEPARTMENT RESPONSE: The Department agrees that parent, staff, and
student perceptions of the physical health and wellness environment are important
indicators for schools to consider when identifying a school’s needs. The Department
organized its definition of surveys around the tenets of the Diagnostic Tool for School
and District Effectiveness to be consistent with other components of the school
improvement process, including the needs assessment and the School Comprehensive
Educational Plan. The Department will provide guidance to ensure that schools and
Districts consider health and wellness as essential components within these Tenets.
43.

COMMENT: Definition of Chronic Absenteeism—Elementary/Middle Level

(pages 41) (1) states that, “The Commissioner shall first compute the school’s Chronic
Absenteeism Rate, which means the number of students enrolled during the school
year in a school for a minimum of ten instructional days, and in attendance at least one
of those days who were absent (excused or unexcused) for at least 10 percent of
enrolled instructional days divided by the total number of students enrolled during the
school year, expressed as a percentage. Suspensions are not counted as excused or
unexcused absences, as suspended students are required to be provided with
instruction while they are suspended...” A couple of commenters equested that this
item be amended such that absences due to suspensions be included in the
computation of the Chronic Absenteeism Rate.
DEPARTMENT RESPONSE: The Department has adopted the United States
Department of Education’s definition for measuring Chronic Absenteeism, which states
that a student absence is defined as “not participating in instruction or instruction-related
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 activities at an approved off-grounds location.” In New York State, because suspended
students must be provided with instruction, they are not absent pursuant to the United
States Department of Education definition.
44.

COMMENT: Several commenters requested that the participation of

parents (or those in parental relation to the student) and teachers be required for the
needs assessments and plan development process for schools that are in their third
year of CSI identification.
DEPARTMENT RESPONSE: Parents and students will be included in the Needs
Assessment process each year a school is identified. In addition, as outlined in the
regulations, parents and secondary students will be involved in the development of the
school improvement plan each year. The proposed regulations have been revised to
clarify that the Department will reject CSI school comprehensive education plans that do
not demonstrate meaningful participation from parents and secondary students.
45.

COMMENT: A commenter applauded the inclusion of schools with

conditions that threaten the health or safety of students in the preliminary registration
review.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
46.

COMMENT: Several commenters expressed that districts should decide

the process for increasing test participation rates.
DEPARTMENT RESPONSE: The regulations provide broad flexibility to schools
and districts to develop strategies for improving participation rates.
47.

COMMENT: Commenter supports the proposed regulation and suggests

that for accountability purposes schools with high opt-out rates should either be treated
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 the same as underperforming schools or just get rid of testing altogether. The latter is
not a realistic option. If opting-out is considered a valid pathway, then underperforming
students will be pressured to opt-out and no accurate snapshot of a school can be had.
Commenter further encouraged the improvement of the assessment content and
administration.
DEPARTMENT RESPONSE: The interaction among the Weighted Average
Achievement measure, Core Subject Performance measure and Academic Progress
Indicator are designed to meet the participation rate requirements of ESSA, ensure that
schools are identified that have academic issues rather than just participation rate
issues, and incentivize increased participation in state assessments. While “curation” of
test takers could, in theory, increase a subgroup’s Core Subject Performance Index,
such action would also decrease a school’s Weighted Average Achievement Index, with
potential negative implications for a subgroup’s Composite Performance Level and
Academic Progress Level.
48.

COMMENT: Commenter supports appropriate assessments and suggests

that tests should be part of a school’s final exam week and that schools should be
allowed to safely grade their own tests and have them count as a student’s score for
part of the year.
DEPARTMENT RESPONSE: The comment is outside the scope of the
regulation; therefore, no response is necessary. Nevertheless, the New York State
Grades 3-8 English Language Arts and Mathematics tests were not designed to be
“final exams” that measure what a student has been taught by their teacher from
September to June of a given academic year. The tests are designed to measure how
well students are mastering the learning standards that guide classroom instruction and
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 help to ensure that students are on track to graduate from high school with the critical
thinking, problem solving, and reasoning skills needed for success in college and the
workplace. The tests also show how schools and districts are progressing with the
learning standards.
Arranging for the scoring of the English Language Arts and Mathematics Tests is
the responsibility of each school or school district. Schools have several scoring model
options to choose from, including but not limited to, regional scoring, three or more
schools within a district, one school if doing paper-based testing, and private contractor.
Regardless of the scoring model being used, a minimum of three scorers is necessary
to score each student’s test. However, to comply with a State requirement, none of the
scorers assigned to score a student’s test responses may be that of the student’s
teacher.
49.

COMMENT: The commenter applauds the inclusion of a College, Career,

and Civic Readiness Index which recognizes civics education as a critical component of
ensuring students receive a well-rounded education. While the CCCRI establishes a
baseline for holding schools accountable for ensuring students’ civic readiness, the
proposed regulations do not establish a civic readiness standard. Commenter
recommends that the State Education Department adopt regulations to define civic
readiness.
DEPARTMENT RESPONSE: Civic Readiness is embedded within the Social
Studies Frameworks. The Department at the direction of the Board of Regents will be
convening stakeholders to develop resources and tools to assist schools in improving
instruction related to civics and civic engagement. This group of stakeholders will be
asked to make a recommendation to the Board of Regents regarding whether
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 Commissioner’s regulations should be amended to include a specific definition of civic
readiness.
50.

COMMENT: Commenter was excited to learn recently of the Board’s plan

to create a “civics seal.” Many states, including New York, already have a seal of
biliteracy; however, students in advanced courses are better prepared to attain this seal
based on the current point system. Commenter urges the Board to establish equitable
standards when deciding the prerequisites to earn a civics seal in order to incentivize
more students rather than widen the civic engagement gap. Commenter believes that
the civics seal prerequisites should, at minimum, include two capstone projects to be
sequenced in eighth grade social studies and the existing Participation in Government
course, which includes these Action Civics elements: community examination, issue
identification, research, strategizing, taking action, and reflection.
DEPARTMENT RESPONSE: The Department at the direction of the Board of
Regents will be convening stakeholders to develop resources and tools to assist
schools in improving instruction related to civics and civic engagement as well as
examine policies related to social studies education. One specific charge to this group
of stakeholders will be to make recommends regarding creation of a seal of Civic
Readiness and potential requirements for a student earning such a seal. Materials
related to this initiative will be posted for public comment and feedback. The
recommendation of the commenter will be shared with the group.
51.

COMMENT: In tandem with the civics seal, the state must allocate funding

to districts to provide teachers with the necessary professional development that aligns
to implementing these changes. Commenter recommends that the majority of those
funds be allocated towards Title I schools.
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 DEPARTMENT RESPONSE: The Department will provide appropriate
professional development in regard to any changes in civics standards or requirements.
Districts will have flexibility to decide what funds to use to support any necessary
professional development in this area.
52.

COMMENT: A commenter applauded NYSED for developing an ESSA

plan that recognizes the effect of school environment on student academic performance
and supports efforts to improve the climate of all schools.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
53.

COMMENT: Several commenters appreciated the inclusive and

transparent process that the Board of Regents and NYSED have worked to maintain
while creating the ESSA state plan. In particular, commenters point to the importance of
preserving the provisions regarding test participation, which are an essential equity
protection for historically under-served groups of students whose needs are too often
ignored in our education system. Throughout the ESSA process, NYSED and the Board
of Regents worked to find common ground among opposing views on this issue. For
some stakeholders, even these reasonable compromises will never be enough. There
are those who have asked the Department to violate federal law and ignore test
participation altogether. Others have called for provisions that would effectively enable
schools to systemically exclude certain groups of students from state assessments.
These commenters state that they stand with civil rights, education, parent, and
business community partners in urging the Department to maintain the current
provisions.

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 DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
54.

COMMENT: Several commenters requested that §100.2(m)(4) be

amended to specify that NYSED will produce, and school districts shall make available,
the report card in at least the 10 most frequently used languages statewide. In the case
of any school districts where local laws, regulations, and policies mandate translation
into more than 10 languages, the regulation should specify that districts must follow
local policies and/or regulations to make the report card available in additional
languages.
DEPARTMENT RESPONSE: The draft regulations have been revised to require
that to the extent practicable, the district or charter school shall provide the reports and
additional information in a language that parents can understand for the most frequently
used languages in the district. The Department anticipates issuing guidance regarding
how districts can meet these provisions and will work toward obtaining additional
resources to support them in doing so.
55.

COMMENT: Several commenters requested that §100.21(h) be amended

such that notification of CSI or TSI designation be made in the 10 most frequently used
languages statewide. In addition to making this requirement clear (including, but not
limited to, by removing “when appropriate” from paragraph (1)), the commenters request
that the requirement for notification in the 10 most frequently used languages statewide
be added to paragraph (2).
DEPARTMENT RESPONSE: The draft regulations have been revised to require
that to the extent practicable, the district or charter school shall provide the reports and
additional information in a language that parents can understand for the most frequently
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 used languages in the district. The Department anticipates issuing guidance regarding
how districts can implement these provisions and will work toward obtaining additional
resources to support them in doing so.

56.

COMMENT: Several commenters noted that as allowed by ESSA, the

proposed regulation at §100.21(b)(1)(xi) includes former students with disabilities in the
students with disabilities subgroup and former English language learners (ELLs) in the
ELL subgroup for the purpose of accountability determinations. While they do not seek
to change the provision, they have requested that the regulation be amended to provide
for disaggregated reporting of accountability data for current versus former members of
these subgroups.
DEPARTMENT RESPONSE: No change necessary. The numbers of ELLs,
former ELLs, students with disabilities, and former students with disabilities separately
are small in many schools and districts. As such, in order to protect the privacy of
students, the Department would have to suppress outcomes for these subgroups,
limiting the amount of data the Department could make available. These suppression
rules can have the unintended consequence of surpressing information for other groups
of students as well. However, the Department agrees that it would be helpful to have
this disaggregated reporting in the future and the Department will work with
stakeholders to determine how this might be accomplished in future years.
57.

COMMENT: Several commenters expressed that §100.21(b)(1)(xi) should

ensure that schools develop an action plan to address the academic needs of current

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 members of these subgroups if their achievement, without factoring in former subgroup
members, would have resulted in the school receiving a “1” for such subgroup.
DEPARTMENT RESPONSE: NYSED understands why current members of a
subgroup might benefit from an action plan to address their specific academic needs
when their scores, without factoring in former members of the subgroup, would have
resulted in a school receiving a “1” for that subgroup. However, for students with
disabilities, there are existing regulations that require the individual identification,
servicing, and progress monitoring of a student’s academic achievement and functional
performance needs. Any additional plans to address the achievement of this subgroup
would be more appropriately addressed via guidance and technical assistance.
58.

COMMENT: Several commenters stated that New York’s approved ESSA

plan provides that out-of-school suspensions will become an accountability indicator
“beginning with the 2018-19 school year results,” which the commenters strongly
support. Commenters request that this language be incorporated in the regulations, as
well, including by adding it to the definition of “accountability measure” (and noting the
school year for which the addition goes into effect) and by replacing “within a timeframe
prescribed by the Commissioner” in the “out-of-school suspension rate” definition with a
date certain that is consistent with the state’s ESSA plan. Conforming changes should
be made throughout the regulation where accountability indicators are listed.
DEPARTMENT RESPONSE: The regulations have been revised to clarify
thatthe out-of-school suspension levels in 2017-18 will be used as the baseline and
using the 2018-19 school year results, the Commissioner shall report for each
accountability group for which a school or district is accountable a Level from 1-4. For
2019-20 school year results, districts will be required to address in their consolidated
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 applications any subgroup in a school or in the district that performs at Level 1 on the
out-of-school suspension indicator. Beginning with 2020-21 school year results, this
indicator will be incorporated into the methodology for determining the accountability
status of schools and districts.
59.

COMMENT: Several commenters noted that TSI schools could be under-

performing for one or more subgroups of students. New York’s ESSA plan already
constrains the definition of “additional targeted support” schools to a narrow set of
extremely low-performing schools. At §100.21(b)(3)(i)(b), the phrase “for the
performance of the same accountability subgroup(s)” should be removed so that any
school that has been designated for additional targeted support and has been in TSI for
three consecutive school years is subsequently identified for CSI in order to provide
escalated support and intervention. This change would ensure that schools that are
seriously under-performing for historically under-served groups of students will receive
the urgent attention and support that they need.
DEPARTMENT RESPONSE: The Department believes there is a significant
difference between a school in which the same group meets the criteria for identification
year after year and a school in which different subgroups of students might cause a
school over time to be identified as TSI. While the Department believes it is appropriate
for the Department to provide additional support to the former group of schools, the
Department will monitor the performance of TSI schools to determine if more robust
intervention in schools that are identified for different groups of students over time is
warranted.
60.

COMMENT: Several commenters commended NYSED for identifying

Target Districts as part of the state’s ESSA plan and regulations. This approach will help
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 ensure that school districts receive the support that they need to help under-performing
school and can help identify district-level capacity challenges that would impede the
school improvement process. Focusing on district-level as well as school- level
improvement is an important hallmark of an effective strategy to support increased
student achievement.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
61.

COMMENT: Several commenters requested that NYSED provide

additional opportunities for public input on the definition of “Recognition schools,” either
by specifying the criteria in the regulation or by committing to seeking public input in the
future.
DEPARTMENT RESPONSE: The Department plans to seek stakeholder
feedback on the proposed methodology for identification of recognition schools.
62.

COMMENT: Several commenters applauded New York’s approved ESSA

plan for the appropriately strong language about the importance of parent involvement
in the school improvement process, specifying that “the State will reject plans from CSI
schools that do not provide adequate evidence of involvement from parents and
families.” They requested that the regulation conform to the state plan in this regard.
Two specific changes to the proposed regulation were asked for: 1) Schools identified
as CSI will submit their plans to the Department for approval, which shall [may] reject
any plan that does not adhere to the directions provided by the Department and [and/or]
provide sufficient evidence in such format as prescribed by the Commissioner that
parents and pedagogical staff and in high schools, students, meaningfully participated in
the development of the plan;” and 2) requested strong and specific provisions to ensure
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 that parents’ voices are heard throughout the improvement process. This should
include, but not be limited to, a provision consistent with the ESEA Title I requirement
that “if the LEA’s plan is not satisfactory to the parents of participating children, the LEA
must submit any parent comments, along with the LEA’s plan, to the SEA.”
DEPARTMENT RESPONSE: The regulations have been modified to indicate
that the Department shall reject any plan that does not adhere to the directions provided
by the Department and does not contain sufficient evidence of parent, staff, and in
secondary schools, student participation.
Parents will be able to submit comments regarding any concerns they
have with the plan submitted. This provision will be handled through guidance to LEAs
and to modifications to the SCEP and DCIP template, rather than through regulation.
63.

COMMENT: Several commenters commended NYSED for including

student input in the creation of high school improvement plans and encourage NYSED
to maintain this provision.
DEPARTMENT RESPONSE: No change necessary as the comments are
supportive of the regulations.
64.

COMMENT: Several commenters requested §100.21(i)(2)(i)(b)(5)

(development of comprehensive education plans for TSI schools) be amended to
specify that the parents be parents of students in the subgroup(s) for which the school
was identified for TSI.
DEPARTMENT RESPONSE: The Department is supportive of the suggestion
that the parents involved in the development of the SCEP at a TSI school include
representatives from the subgroup(s) for which the school has been identified. The
Department is also sensitive to the privacy rights of individuals, and as a result, the
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 Department would prefer to issue guidance to LEAs identifying the importance of
including parent representatives of identified subgroups in the development of TSI
SCEPs rather than mandating their inclusion through regulation.
65.

COMMENT: Several commenters requested that the regulation specify

that the notification to parents of a school’s identification for TSI, CSI, and relevant
school improvement status changes must also include information (in multiple
languages) about how parents can participate in the school improvement process.
DEPARTMENT RESPONSE: See responses to Comments #54 and #55.
NYSED agrees that information about school improvement status, school report cards
and a school’s TSI or CSI categorization must, to the extent practicable, be made
available in the home/native languages spoken most frequently by a district’s ELL
students. The draft regulations have been revised to require that to the extent
practicable, such information be provided in a language that parents can understand for
the most frequently used languages in the district. The Department anticipates issuing
guidance regarding how districts can implement these provisions and will work toward
obtaining additional resources to support them in doing so. In addition, the Department
will be working towards developing additional resources to districts to support them in
communicating to parents about school improvement status, school report cards, and
the school’s CSI or TSI status.
66.

COMMENT: Several commenters expressed concern that the proposed

criteria for demonstrating progress are far too weak to signify meaningful school
improvement. Under the definition at §100.21(b)(4)(xiv), any increase in the school’s
performance index – no matter how small – would result in the school making sufficient
progress. Likewise, demonstrating growth at the state average would result in the
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 school making sufficient progress, no matter how far behind its students already are.
Commenters requested more ambitious targets tied to demonstrating that the school is
on track to meet its accountability measures.
DEPARTMENT RESPONSE: The Annual Achievement Progression Target is
not intended to be used as a means of determining whether or not the school is making
sufficient progress toward being removed from accountability status. Instead, the
purpose of the Annual Achievement Progression Target is to identify the CSI schools
that have not made gains from the previous year and, therefore, should receive
additional support and oversight from the Department. The Annual Achievement
Progression Target will enable the Department to determine the schools that require
additional support.
67.

COMMENT: Several commenters expressed concern about the use of the

Core Subject Performance Index at §100.21(b)(4)(xiv) to determine the progress of an
identified school. Based on the definition, it appears that a school could meet its target
simply by encouraging low-performing students to opt-out of the state assessment.
Commenters requested that the factors used to calculate the Weighted Average
Achievement Index be used instead to make this determination.
DEPARTMENT RESPONSE: The purpose of the Annual Achievement
Progression Target is to identify the CSI schools that have not made gains from the
previous year and, therefore, should receive additional support and oversight from the
Department. The Department originally selected the Core Subject Performance Index
as its preferred measure of determining if the school has made gains rather than the
Weighted Average Achievement Index, since the Core Subject Performance Index is
computed using solely the results of the students who took the exam. Based on the
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 commenters’ concern that this could work at cross purposes with initiatives to increase
participation rates, the regulations have been modified to require that a school increase
both its Core Subject Performance Index and its Weighted Average Achievement Index
in order to demonstrate progress through this means.
68.

COMMENT: Commenter supports the methodology used to calculate the

Core Subject Performance Index, as defined in the regulation and further explained by
NYSED at the June meeting of the Board of Regents, which means that schools that
have low test participation (high opt-out) cannot be identified for improvement unless
they also have very low achievement for the students who do take the assessments.
This methodology appears consistent with federal law and, in the short-term, appears to
strike a reasonable balance between the interests described above.
DEPARTMENT RESPONSE: No change necessary as the comments are
supportive of the regulations.
69.

COMMENT: Several commenters requested clarification on the impact of

provision §100.21(f)(1)(iii)(b), which requires that in order to be identified for additional
targeted support and improvement (ATSI) a school must have been identified as a TSI
school in the current and prior school years and why this provision is necessary. The
commenters are interested in the specific circumstances for which the provision seeks
to avoid identifying schools for ATSI. If the language would prevent extremely lowachieving schools for a particular subgroup from receiving additional attention via
identification for ATSI, commenters recommend this provision be removed.
DEPARTMENT RESPONSE: This provision ensures that a school would not be
identified for additional targeted support and improvement until it has been a Targeted
Support and Improvement School for at least one year.
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 70.

COMMENT: Several commenters requested that treatment of dual

enrollment courses align with the language of the state’s approved ESSA plan, which
states that: “New York State’s College, Career, and Civic Readiness Index will give
credit to schools for students who pass high school courses and additional credit for
students who achieve specified scores on nationally recognized exams associated with
these courses or who earn college credit for participation in dual enrollment courses.”
To effectuate this change, dual enrollment courses should be treated more consistently
with AP and IB courses in the calculation of the College, Career & Civic Readiness
accountability indicator. To that end, the regulation should specify that as soon as data
collection permits, student participation in the course should be included at the 1.5 level
and success in the course should be included at the 2.0 level, e.g.: Regents Diploma
and high school credit earned through participation in dual enrollment (in high school
and accredited college) course – 1.5; and Regents Diploma and college credit earned
through participation in dual enrollment (in high school and accredited college) course –
2.0.
DEPARTMENT RESPONSE: Once such data is available, the Department will
consider whether the weighting for the College, Career, and Civic Readiness indicator
should be adjusted.
71.

COMMENT: Several commenters commended NYSED for including

§100.21(i)(1)(i)(c) in the ESSA plan and regulations, which states that, “In the first
school year in which the school is identified as a CSI school, the school must… limit
incoming teachers transfers to teachers rated effective or highly effective pursuant to
Education Law §3012-d by a school district in the previous school year, subject to
collective bargaining as required under article 14 of the Civil Service Law, and require
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 that any successor collective bargaining agreement authorize such transfers unless
otherwise prohibited by law…”
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
72.

COMMENT: Several commenters requested several specific changes to

§100.21(i)(1)(iii)(g), the provisions for public school choice: Rather than being available
only for students in CSI schools with declining achievement on the performance index,
public school choice should be available for students in all CSI schools. The
commenters note that CSI schools are already the bottom-performing schools in the
state.
DEPARTMENT RESPONSE: Rather than mandate Public School Choice upon
identification, as had been required under No Child Left Behind, the proposed
regulations give schools the opportunity to improve first, and if improvements are not
realized for two consecutive years, then require schools to offer Public School Choice.
The proposed regulations make Public School Choice an option, but not a requirement,
for any district with a CSI school that believes that Public School Choice will support
stronger outcomes for students and for CSI schools.
73.

COMMENT: Several commenters requested several specific changes to

§100.21(i)(1)(iii)(g), the provisions for public school choice. If there are no schools in
good standing or TSI schools serving the grade levels served by the CSI school that is
required to provide public school choice, the school district should be required to create
additional seats in schools in good standing or open additional schools in good
standing.

190

 DEPARTMENT RESPONSE: The Commissioner can intervene with schools
struggling to make gains, regardless of their ability to offer Public School Choice, to
ensure that the students have access to a quality education, by designating the school
as a School Under Registration Review (SURR), or if the school is in the Receivership
program, appointing an Independent Receiver to manage and operate the school. If a
school fails to make demonstrable improvement while subject to Independent
Receivership, then the Commissioner may direct that the school receivership be
terminated and the district submit a plan to take one of the following actions: place the
school under management of the State University of New York or the City University of
New York, or phase out and close the school. While converting the school to a charter
school was previously included in this list of actions, the Department has revised the
regulations to remove this action.
74.

COMMENT: Several commenters requested several specific changes to

§100.21(i)(1)(iii)(g), the provisions for public school choice. The commenters do not
believe that Participatory Budgeting is, or should be described as, an alternative to
public school choice. Both concepts are valuable and should be advanced
independently.
DEPARTMENT RESPONSE: The Department is interested in promoting multiple
ways to promote students and parent voice. Based on comments received on the
proposed regulations, the Department has revised the proposed regulations to provide
greater flexibility to districts in how they promote greater parental and student
involvement in engagement. Districts may now choose to take other actions to promote
parent and student engagement in lieu of implementing participatory budgeting.

191

 75.

COMMENT: Several commenters noted that if schools are systemically

excluding certain groups of students from state assessments, there must be urgency
and action to protect the ability of all students to participate in state assessments and
have the students’ used to make accountability determinations. The draft regulation
provides extensive opportunities for schools to improve their test participation rates.
This includes – over multiple years – a self-assessment, help from the school district,
and help from a BOCES. Commenters commend the Department for this reasonable
and balanced approach to supporting schools in improving their participation rates.
Commenters suggested that If anything is to improve, they believe the process may be
too elongated, and would benefit from combining the district and BOCES steps.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
76.

COMMENT: Several commenters commended NYSED for including

provision §100.21(i)(5)(vi), which requires that for the lowest 10 percent of schools
within the State for participation rate as determined by the Commissioner, the district
must submit a participation rate plan for approval by the Commissioner no later than 60
days following notification to the district that such plan is required. This will ensure that
schools with the lowest participation rates in the state take immediate steps to improve
test participation in partnership with parents and will enable NYSED to support these
schools in their efforts.
DEPARTMENT RESPONSE: No change necessary as the comment is
supportive of the regulations.
77.

COMMENT: Several commenters expressed concern with another

commenter’s public letter regarding the draft regulations.
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 DEPARTMENT RESPONSE: No response is necessary to these
comments because they are responses to other comments the Department received on
the regulation and not comments on the regulations themselves. Moreover, these
comments are generally supportive of the regulation.
78.

COMMENT: A commenter requested a new subdivision (n) of section

100.18 of the Regulations of the Commissioner of Education be added for the purpose
of expanding the data included in the annual report by the Board of Regents to the
Governor and the Legislature in accordance with Education Law §215-a providing easy
public access to such report. Commenter suggested the following language: (n) All of
the items required to be included in an annual report by the regents to the governor and
the legislature pursuant to section 215-a of the Education Law shall be set forth in a
single, easily accessible portal the department’s website, and in an easy to comprehend
format, all of the information required by section 215-a, and, in addition, class sizes,
indicators of student achievement in social studies; college, career and civic readiness
rates; expenditures per pupil for services for English language learners; and numbers of
students eligible for, but not receiving, specific courses and services mandated by
federal or state statutes and regulations, including, but not limited to, academic
intervention services, response to intervention services, special education and related
services, bilingual or English as a second language instruction, guidance services,
mandated courses or sequences of courses, pathways to graduation, physical
education, health services, adequate science laboratories, and reasonable access to
up-to-date textbooks, computers, software and other instructional materials. To the
extent practicable, all such information shall be displayed on a statewide, individual-

193

 school-district and individual-school basis, and by racial/ethnic group, gender, economic
status, English-language-learner status, and migrant status.
DEPARTMENT RESPONSE: Information necessary to meet the requirements of
Education Law section 215-a can be accessed through the Department’s “Chapter 655”
Webpage. New York State Report Cards will include data required by ESSA at the
statewide level; by individual public and charter school; by district; and by racial/ethnic
groups, gender, economic status, ELL status, and migrant status. College, career, and
civic readiness rates as well as student achievement in social studies (as part of the
Composite Performance Measure) will be included in the accountability section of the
report cards. Class size will be included in a Student and Educator Report on
data.nysed.gov. Expenditures per pupil per ESSA will be included in report cards
beginning in 2018-19; however, ESSA does not require that SEAs report expenditures
per pupil for English language learners. The small number of ELLs in many schools
would result in significant data suppressions. ESSA also does not require SEAs to
report numbers of students eligible for, but not receiving, specific courses and services
mandated by federal or state statutes and regulations, including, but not limited to,
academic intervention services, response to intervention services, special education
and related services, bilingual or English as a second language instruction, guidance
services, mandated courses or sequences of courses, pathways to graduation, physical
education, health services, adequate science laboratories, and reasonable access to
up-to-date textbooks, computers, software and other instructional materials. The
Department will consider whether any of this information should be collected and
reported publicly, bearing in mind the potential benefit of reporting such data balanced

194

 by the additional resources that districts would need to allocate to reliably collect such
information.
79.

COMMENT: A commenter expressed concern that the provision of a

needs assessment and support report, focused on one particular administrative title, is
too narrowly focused, duplicative with other improvement planning processes, and
susceptible to creating unintended consequences. The commenter recommended the
principal needs assessment and support report be deleted and any needed support for
the entire administrative team should be included in the Comprehensive Improvement
Plan.
DEPARTMENT RESPONSE:
The purpose of the Principal Support Report and Principal Needs Assessment
has evolved so that both documents no longer involve an evaluation of the school
leader and now focus on ensuring that the district is providing sufficient supports to
principals and a school’s leadership team. Based on comments received, the
Department has modified the regulations so that this report addresses supports
provided to the entire school leadership team. For the Principal Support Report,
districts will identify the supports they are providing to the school leadership team of a
school that does not make gains after one year. If the school does not make gains for
two consecutive years, then as part of the District Needs Assessment, the district will
need to reflect as to why the supports listed in the Principal Support Report were not
enough to result in improved outcomes. The intent of these provisions is to ensure that
school leaders receive the supports they need from their district to succeed. There is
no component of either of these reports that involves an evaluation of the principal or
any other title.
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 80.

COMMENT: The regulations indicate that a continuously enrolled student

is a “student enrolled on BEDS day and enrolled during the test administration period for
the subject tested...” (8 NYCRR§I00.2l(b)(IXix)). As written, a student could be enrolled
on BEDS day, leave the school, and re-enroll during the testing period and be counted
as continuously enrolled. A commenter suggested the definition of a continuously
enrolled student should be clarified to indicate that continuous enrollment is based on
students enrolled on BEDS day and each day through the test administration period.
DEPARTMENT RESPONSE: No change required. The language included in
the proposed regulations accurately reflects how the Department has for many years
defined and collected information regarding continuously enrolled students. Revising
this definition would require significant preparation and revision to data collection
procedures. The Department will consult with key stakeholders regarding the
advisability of making such a revision in the future to the definition of continuous
enrollment.
81.

COMMENT: A commenter expressed concern that measurements, such

as the calculation for chronic absenteeism, can lead to unintended consequences. A
small school would have a higher probability of being classified as low-performing, as
even a few chronically absent students would impact results (e.g., one student in a
building of 200 students equals .5%. If one student is absent one day, that student's
absence could mean the difference between Level 3 or Levels 1 or 2). Commenter
recommends that chronic absenteeism be calculated through a tiered approach based
on school building size so as to accommodate small districts and schools.
DEPARTMENT RESPONSE:

There is no measurement error associated with

the chronic absenteeism indicator. (That is, in a particular year it is known exactly what
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 percent of students in an accountability group in a school have been reported as
meeting the definition of having been chronically absent.) However, in those instances
where the attendance pattern of a small group of students within an accountability group
produces anomalous results, the school may appeal the group’s accountability
designation.
82.

COMMENT: According to 8 NYCRR§100.21(b)(4)(xi), parent, staff, and

student surveys must be conducted in schools identified as Comprehensive Support
and Improvement and Targeted Support and Improvement schools. Student surveys in
grades K-3 will be very challenging. Student surveys should be required for students
beginning in grade 4.
DEPARTMENT RESPONSE: The regulations do not stipulate which grade
levels must be included as part of the student survey requirement. The Department will
issue guidance to clarify that the survey selected by a district is to be administered to
students in the grade levels for which the survey has been designed.
83.

COMMENT: A provision of the regulations currently reads: “(xv)

Accountability level means a level from 1 to 4 derived when scores earned on Regents
examinations and Regents alternative examinations as defined in this subdivision are
converted to four accountability levels based on predetermined accountability cut scores
established by the Commissioner.” There are now five (5) scoring levels for Regents
Exams. Are these references to 1-4 levels a typo?
DEPARTMENT RESPONSE: This is not a typo. Although English language arts
and mathematics Regents exam results are reported to individual students using five
levels, these are converted to four “accountability levels” by combining Regents exam
Levels 1 and 2 into a single level for institutional accountability purposes.
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 84.

COMMENT: A commenter recommends modifying the definition of

suspension rate to measure the total number of instructional days lost due to
suspensions that exclude students from their regular program and classroom regardless
of whether the student remains in the same school or is sent to another one.
“Instructional Days Lost” should include any time a student is suspended from school
and does not receive regularly programmed instruction in their regular classroom. The
commenter also recommends counting any suspension that causes a student to miss
more than 50 percent of their regularly programmed instruction in their regular
classroom in a day as a full-day suspension for purposes of calculating Lost Instruction
Time to reflect the significant amount of classroom instruction missed that day. To
account for schools of different sizes, the measure should be expressed as a “per 100
students” metric, using BEDS Day Enrollment numbers. Such an indicator would be
responsive to the various suspension scenarios at different schools. It would also be
linked to a metric - instructional time - closely related to student outcomes. Furthermore,
the measure would better capture longer and more frequent suspensions (which Black
students and students with disabilities receive disproportionately), neither of which is
captured sufficiently by the current definition. This measure would more accurately
capture high rates of student suspensions in schools across the State.
DEPARTMENT RESPONSE: The Department engaged in extensive outreach to
solicit input from educators, policymakers, stakeholders and the public regarding the
indicators to be included in the ESSA accountability system. Based on this feedback,
the Department determined that the most important metric in terms of student
suspension is the percentage of students in an accountability group who are suspended
out-of-school one or more times during the school year. The Department believes that,
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 for example, the suspension of one student for 50 days of instruction is very different
than the suspension of 10 students from five days of instruction.
85.

COMMENT: A commenter expressed concern that the proposed

calculation of chronic absenteeism for elementary schools does not include the
attendance of kindergarten students. The commenter recommends that the Regents
amend §100.21(f)(1) to state that, at the elementary/middle school level, chronic
absenteeism is calculated for grades Kindergarten-8 and ungraded age-equivalent
students.
DEPARTMENT RESPONSE: Because attendance in kindergarten is not
compulsory, the Department believes it is inappropriate to include kindergarteners in the
computation of chronic absenteeism.
86.

COMMENT: A commenter expressed concern that the State is proposing

to calculate chronic absenteeism only at the school level. Such calculations may mask
the chronic absenteeism of highly mobile students, such as students in temporary
housing, who may transfer schools multiple times over the course of a school year. The
commenter recommends that the Regents amend §100.21(f) to add a district-level
calculation of chronic absenteeism and ensure that the district measure of interim
progress accounts for the district-level calculation of chronic absenteeism.
DEPARTMENT RESPONSE: Chronic Absenteeism will also be calculated at
the District Level and be used to make Target District determinations. Therefore, no
change is necessary.
87.

COMMENT: In order to ensure that families understand critical information

about how their children’s school is performing, a commenter requests that the
Department amend regulatory language pertaining to report cards and required notices
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 to specify that the Department will produce and school districts will make available the
school report card and CSI or TSI designation notices in at least the 10 most frequently
used language statewide. However, if the top 10 statewide languages do not include the
top 5 local languages of the district, the commenter recommends that report cards and
notices be translated into those top 5 languages, as well.
DEPARTMENT RESPONSE: The draft regulations have been revised to require
that to the extent practicable, the district or charter school shall provide the reports and
additional information in a language that parents can understand in the most frequently
used languages in the district. The Department will be issuing guidance regarding how
districts can implement these provisions and will work toward obtaining additional
resources to support them in doing so. The proposed regulations allow districts and
charter schools the flexibility to focus on the languages of the parents/guardians of the
students they serve.
88.

COMMENT: A commenter expressed concern that the draft regulations

move away from previous agreements with respect to performance calculations. It was
the commenter’s understanding the higher performance calculation (i.e., the higher of a
school’s Weighted Average Achievement Level or Core Subject Performance Level)
would be used to make accountability determinations. The current regulations reflect
that an averaging of the two Levels will be used. This change would allow refusal rates
to impact school accountability determinations.
DEPARTMENT RESPONSE: The current regulations reflect changes that were
made in the plan submitted to the United States Department of Education to secure plan
approval. The “higher performance calculation” is still used to rank schools that have the

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 same Composite Performance Index in order to determine a subgroup’s Composite
Performance Level.
89.

COMMENT: A commenter expresses appreciation for NYSED’s process

that provided multiple opportunities for school districts and other stakeholders to
participate in its ESSA plan development and now implementation. This commenter
describes other aspects of the new ESSA accountability system that they view
favorably, including the addition of chronic absenteeism and college readiness
indicators at the state level; the continued emphasis on student growth in elementary
and middle school accountability -- the Department’s approach to place it in equal
standing with student achievement as a key driver of school improvement; and the
inclusion of five- and six-year rates in the graduation rate indicator, so that more
students, schools, and communities can see their success reflected in this metric.
DEPARTMENT RESPONSE: No response necessary as the comment is
supportive of the regulations.
90.

COMMENT: Provide Grades 3-8 test exam results quicker, so that schools

and districts can plan appropriately for the next school year. The commenter strongly
encourages NYSED to minimize the lag between testing and reporting test results on
the Grades 3-8 exam, as it does not allow schools and districts to plan appropriately for
the start of the next school year.
DEPARTMENT RESPONSE: The comment is outside the scope of the
regulation. Therefore, no response is necessary. Moreover, in June of each year, the
Department authorized the release of instructional reports for the Grades 3-8 ELA and
Mathematics Tests. The reports allow authorized school personnel to view, for each
question that contributed to a student’s score, whether the student answered the
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 question correctly and the NYS Learning Standard measured by the question. The
reports allow for raw score performance comparisons at the student, classroom, school,
district, and regional levels.
Also, the Department released 75 percent of the Grades 3-8 ELA and
Mathematics Test questions that count toward student scores in early June. This
includes 100 percent of the constructed-response (open-ended) questions, as well as
the scoring materials used by educators to score student responses to these questions.
Each released multiple-choice question includes the question itself and an item map
that provides the answer key and the standard measured by the question. Each
released constructed-response question includes the question itself and an item map
that provides the standard measured by the question.
91.

COMMENT: A commenter strongly encourages NYSED to dis-incentivize

double-testing by changing reporting files and growth percentiles. Currently, NYSED
releases reporting files that omit students who only take the Regents exam and not the
8th grade Mathematics exam. These students are omitted in the percent proficient and
growth percentiles for a school, which puts the school at a disadvantage. The Regentsonly students are rightfully not taking the 8th grade exam and thereby avoiding doubletesting; however; their schools suffer the consequences by seemingly low ranks and
analysis that would mis-categorize or mischaracterize the learning occurring at the
school. This commenter urges NYSED to use a conversion table that takes into account
the student’s Regents score and imputes what they would have likely scored if the
student had taken the regular 8th grade exam.
DEPARTMENT RESPONSE: Middle school students who take a Regents exam
math or science in grades 7 or 8 in lieu of the grade level exam have their results
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 included in the computation of the Weighted Average Achievement Index, the Core
Subject Performance Index and the Academic Progress measure. During the 2014-15
school year, the Department and its student growth vendor developed an expansion of
the student growth model to calculate SGPs for eighth grade students who take the
Algebra I Regents Examination. However, consistent with the Department’s intent to
maintain stability in the State-provided growth model during the transition period (201516 through 2018-19 school years) as the Department considers a revised Stateprovided growth model, the Department decided not to adopt this expansion of the
growth model for use in institutional accountability. Once the transition period
concludes, the Department will consider expanding the model to allow students who
take the Algebra I Regents Exam in place of grade level math assessments to
contribute to their schools’ growth measures. Growth for these students would be
calculated by comparing them to their peers who also took the Algebra I Regents Exam.
While including these students will increase the total number of student growth results
included in school growth measures, the growth measures are as likely to increase or
decrease a school’s Student Growth level depending on how students perform on the
Regents Exam relative to their peers.
92.

COMMENT: Revisit regulations on participation rate as a criterion for

exiting CSI or TSI status, especially for schools with small participation rate deficiencies.
The commenter strongly encourages NYSED to avoid harsh punishment for schools
with small deficiencies in exam participation. The commenter believes that the policy as
proposed in the regulations would mean that a CSI school that has shown consistent
academic progress each year and has technically qualified to exit the CSI designation

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 as per the criteria, but still, for example, has a 94% participation rate for Students With
Disabilities (SWD) will not exit CSI status.
DEPARTMENT RESPONSE: The Regulations have been revised so that
schools can be removed from TSI and CSI status so long as the accountability group(s)
for which the school is required to do a participation rate improvement plan are not
performing at Level 1 on the Weighted Average Achievement measure.
93.

COMMENT: Reconsider and provide additional details about testing

participation rate consequences. The commenter believes that participation rate
requirements substantially differed in the amount of discretion offered to the
Commissioner to remove schools from potential consequences. The commenter
expressed that the flexibility described in the regulations does not mirror the approach
that NYSED put forward in the approved State Plan, and they feel that insufficient detail
is provided about some of the consequences that are listed. For example, “improvement
plan,” “self-assessment,” and “participation rate audit” are not defined in the definitions
section of the regulations; and “appropriate action” to take to notify “the general public”
is left fairly loose. Additionally, they comment that all interventions seem to be
predicated on 2 years of results for the same subgroup in the same subject starting in
SY17-18, since all regulatory language refers to the initial SY17-18 infraction. The
commenter states that the regulations seem to suggest that if a school is above 95% in
this one year (SY17-18) it is no longer essentially at risk of being designated for
participation rate in future years. The commenter points out that there seem to be
various off-ramps and flexibility built in for participation rate accountability when
consequences seem a lot more stringent for CSI schools. The commenter believes that
this is an inconsistent approach, because even in the most extreme participation rate
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 interventions, the regulations still only say “schools may be required to undertake
additional actions” and “extenuating circumstances” can get a school out of
consequences.
DEPARTMENT RESPONSE: The Department has revised the proposed
regulations and eliminated the reference to “additional activities.” The proposed revised
regulations would require schools that undergo a participation rate audit because they
have failed for five years to improve the performance of an accountability group in ELA
or in math to address recommendations contained in the participation rate audit
completed by the Department. With respect to the participation rate audit, the
Department will be issuing guidance in the future to schools on how to implement this
provision. The Department does not believe that any additional regulatory changes are
needed.
94.

COMMENT: NYSED should provide more clarity on the State’s

involvement and requirement for Commissioner’s approval in participation rate
improvement plans for both schools and districts. It is not clear what it means (for
schools and districts) to be required by NYSED to implement certain activities and how
a district will be required to monitor the implementation of such activities at each school
required to implement a plan. There are also references to an audit in the regulations for
schools and districts that do not improve their participation rates, but there is insufficient
clarity on what kind of an audit and performed by whom.
DEPARTMENT RESPONSE: See response to comment #93.
95.

COMMENT: The commenter strongly encourages NYSED to identify

transfer schools as CSI in the same proportion as other school types are identified as

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 Comprehensive Support & Improvement (CSI) so that transfer schools are not overdesignated based on the need of their students.
DEPARTMENT RESPONSE: The Department disagrees that the number of
transfer high schools identified should be proportionate to the number of non-transfer
high schools identified. The Department has worked with stakeholders to develop an
accountability mechanism that recognizes the unique circumstances of transfer high
schools. This mechanism could result in a higher or lower percentage of transfer high
schools identified compared to non-transfer high schools, depending on how well
transfer high schools perform in relation to the established accountability metrics.
96.

COMMENT: The commenter strongly encourages NYSED to revisit the

accuracy of its College, Career and Civic Readiness Index data and consider other
alternatives for early implementation in SY17-18. The commenter commends NYSED
on the decision to include a measure of college- and career- readiness to the statewide
accountability system. However, in order to ensure this metric is an accurate and fair
representation of their schools’ readiness, they believe that Advanced Placement and
Dual Enrollment coursework done by students prior to 2017-18 must be collected and
used. Without this data, the metric will be inaccurate and not a true representation of
school performance. The commenter urges NYSED to allow districts to submit prior
course data through SIRS or by a separate spreadsheet collection. If this data cannot
be gathered, then the commenter suggests NYSED delay implementation of this metric
until the next round of CSI determinations are made in 2020-21 when multiple years’ of
data will have been collected from schools across the entire state.
DEPARTMENT RESPONSE: The Department has researched the impact of
including Advanced Placement and Dual Enrollment course and exam results that were
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 taken by students prior to 2017-18 but not reported to the Department and found that
inclusion of these data for the vast majority of schools would have little impact on the
College, Career, and Civic Readiness Indices and Levels assigned to schools and no
impact on the overall accountability status of a school. The Department will note this
issue on school report cards. Further, the Department will accept appeals of
accountability designations when the inclusion of these results would change the level
that would be assigned a subgroup’s CCCR indicator and consequently change the
subgroup’s accountability designation. Given this information, the Department does not
believe a delay in the use of the CCCR measure or a recalculation of Indices or Levels
is warranted.
97.

COMMENT: The commenter strongly encourages NYSED to revisit state

accountability measures that are based on the school’s own baseline and instead
encourages the state to consider using the student population as the basis for growth.
In the cases where a school is below the state average, the only way for a school to
avoid a Level 1 rating in graduation rate, CCCRI, and chronic absenteeism is to improve
on the school’s own result from the prior year. We encourage NYSED to set realistic
targets based on incoming student need or prior student performance (e.g. growth).
DEPARTMENT RESPONSE: Several indicators in the ESSA accountability
system, such as graduation rate, CCCRI, and chronic absenteeism, give schools credit
for making progress compared to the subgroup’s baseline performance. The
Department will continue to explore alternative ways of holding schools accountable for
results, which could include measures that are based upon the incoming performance of
students.

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 98.

COMMENT: A commenter urged NYSED to include at the high school

level a metric based on growth percentiles or a student’s starting point in terms of ELA
and Math achievement.
DEPARTMENT RESPONSE: The Board of Regents have expressed their
commitment over time to adding additional indicators to the ESSA accountability
system. Resources permitting, the Department will explore the feasibility of including a
metric of student growth in high school based on student performance on Regents
examinations. The current grades 9-12 growth model used for to inform principal Annual
Professional Performance Reviews includes a measure of student growth on ELA and
Algebra I Regents examinations that measures student growth in relation to a student’s
performance on the 7 and 8 ELA and math assessments. However, because not all
students take the ELA or Algebra Regents exams in the same year, high school growth
measures tend to not be as robust as models that measure student growth for
elementary/middle school students.
99.

COMMENT: The commenter strongly encourages NYSED to revisit the

suspension rate metric to avoid suspension quotas or other unintended consequences.
The commenter would like for the suspension rate metric to be removed from the ESSA
plan because they believe it could incentivize underreporting of serious incidents in
schools.
DEPARTMENT RESPONSE: Suspension data is an important indicator of
school climate that has been collected and reported for decades in New York. The
three-year roll-out timeline for the use of this indicator for accountability purposes is
intended to provide districts and schools with ample opportunity to implement
alternatives to suspensions. This should result in both a reduction in serious incidents
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 and a reduction in suspensions. In addition, as the use of school climate surveys is
expanded, the Department should be better able to determine any instances where
there is dissonance between the number of incidents reported and the viewpoints of
stakeholders regarding school safety and climate. Therefore, there is little reason to
think that there will be a substantial increase in underreporting of serious incidents
based on the use of suspension as an accountability measure.
100.

COMMENT: A commenter strongly encourages NYSED to create an “ELL

graduation rate” that includes all English Language Learner students. The current ELL
graduation rates issued by the state do not give a full picture of student progress as the
measure only documents students who have not passed the NYSESLAT. The
commenter urges NYSED to report an “ELL graduation rate” to show the success of
ELL student, by including all students who were English Language Learners at the time
they entered high school.
DEPARTMENT RESPONSE: No change necessary. Graduation rates for
English Language Learners already include students who are ELLs in the current
reporting year as well as those who are not ELLs in the current reporting year but were
ELL at any time during the cohort period.
101.

COMMENT: A commenter strongly encourages NYSED to explain

instances in the chronic absenteeism, graduation rate, and CCCRI regulations when the
Commissioner has discretion to assign schools based on other non-defined criteria, as
opposed to the use of the decision tables. For these three metrics, NYSED has created
opportunities in the regulations for the Commissioner to assign a school to a Level 1
(graduation rate) or Level 2 (chronic absenteeism and CCCRI) outside of the regular
decision table. With an eye towards a transparent system that allows districts and
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 schools to understand the system they are held accountable to, the commenter urges
NYSED to name the criteria the Commissioner would use in these circumstances or
remove these mentions of discretion.
DEPARTMENT RESPONSE: The regulation is intended to give the
Commissioner flexibility to establish “floors” and “ceilings” in the assignment of Levels.
For example, the Commissioner could decide as the system matures that all schools
must achieve a certain minimum performance on an indicator to achieve Level 2 even if
the school has met its lower Measure of Interim Progress. Conversely, the
Commissioner may decide that over time a school may warrant receiving a Level 2 even
if the school does not meet the lower of the two Measures of Interim Progress.
102.

COMMENT: Better align Annual Achievement Progress Targets with CSI

and TSI exit criteria. The commenter has questions regarding the process used for
setting Annual Achievement Progress Targets (AAPTs). In particular, while AAPTs
appear to overlap with exit criteria from CSI and TSI schools, the criteria do not appear
to precisely align. The commenter finds it unclear, as the regulations are written, how
AAPTs may or may not get a school out of its status, and what role the exit criteria
would then play. The commenter suggests aligning these two sets of metrics for
identified schools to ensure affected schools are clear in what performance targets they
are required to reach.
DEPARTMENT RESPONSE: The purpose of the Annual Achievement
Progression Target is to identify the CSI schools that have not made gains from the
previous year and, therefore, should receive additional support and oversight from the
Department. This measure will allow the Department to best determine how to direct its
resources so that the schools that are struggling to make gains receive additional
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 attention. It is expected that some schools will meet their Progression Target but will
not be eligible to be removed from CSI status. The Annual Achievement Progression
Target was designed as a means of determining if a school had improved its
performance from the previous year, not as the basis for making exit determinations.
103.

COMMENT: Provide additional detail around designation and

interventions for Schools Performing at Level 1. The commenter feels that the
regulations do not make clear whether schools receiving the Schools Performing at
Level 1 designation receive this for the all students subgroup or for any particular
subgroup. While references to Schools Performing at Level 1 are made in the section of
regulations related to Target Districts, the commenter is not clear who will hold Schools
Performing at Level 1 accountable for their performance and improvement, nor who will
provide resources and support for any related interventions.
DEPARTMENT RESPONSE: Any group that receives a Level 1 designation for
any group is required to have that group’s performance addressed in the district’s
consolidated application. The Department will issue further guidance on how districts
are expected to work with schools to address this requirement.
104.

COMMENT: Provide additional detail around designation and

interventions for schools identified for Additional Targeted Support. Whereas CSI and
TSI designations are defined and elaborated upon in the regulations, the definitions
section of the regulation omits a definition for Additional Targeted Support (ATS).
Additionally, there are no clear interventions described in the regulatory text: while it
states that ATS schools “may be required” to implement additional actions “as
determined by the Commissioner,” the commenter is seeking greater clarity around the

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 formal parameters of this designation and how it would be meaningfully differentiated
from the TSI status.
DEPARTMENT RESPONSE: The definition for Additional Targeted Support
schools can be found in Section 3 (iii) within the definition for Targeted Support and
Improvement schools. A TSI school with any accountability subgroup performing below
the threshold for the all students subgroup for the lowest performing five percent of
schools shall be identified for additional targeted support. Beginning with the 2018-19
school year, TSI schools shall be identified for additional targeted support in the same
years in which CSI school designations are made based on the performance of the all
students group. Examples of the actions required of schools identified for Additional
Targeted Support can be found in Section (i). These include submitting the annual
school comprehensive education plan to the Commissioner for approval; partnering with
a BOCES, Regional Bilingual Educational Resource Network, Teacher Center, or other
Regional Technical Assistance Center, or other technical assistance provider; and/or
implementing a participatory budgeting process. Districts with TSI schools identified for
additional targeted support may be required to implement additional actions, as
determined by the Commissioner, including submitting a principal support report.
105.

COMMENT: Preserve local autonomy around school closure decisions.

The commenter believes that the regulatory language does not clearly reflect that the
school district reserves the right to decide to close a school. Rather, the text suggests
that the Commissioner decides. Under the Receivership Law, the district decides
whether to close a school and then seeks approval from the Commissioner. This is, in
effect, putting the new school into Receivership status, as it will be assigned an
independent monitor who reports to the Commissioner from its inception. It does not
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 appear to us that this provision was included in the State’s original plan, and we seek to
maintain our own discretion in closing schools.
DEPARTMENT RESPONSE: The Commissioner’s Regulations related to
receivership outlined in Section 100.19(j) explicitly state that nothing prohibits a school
district from closing or phasing out a school with the approval of the commissioner. The
purpose of an independent monitor is to ensure that an acceptable plan for the closing
of a school and opening of a new school, as appropriate, is submitted and then
successfully implemented. The independent monitor is not an independent receiver and
does not serve as the superintendent for the school. Any school that opens as a result
of successful implementation of the school opening plan remains under the jurisdiction
of the district and is not placed in receivership.
106.

COMMENT: Clarify applicability of CSI/TSI designations and interventions

to charter schools. The commenter states that it is not sufficiently clear in the regulatory
text how ESSA designations and interventions would be applied across all school types.
The regulatory language suggests that charters can still receive the CSI and TSI
designation, but that interventions can be differentiated depending on their authorizer
and charter. It is not clear how interventions would be consistently or uniformly applied,
though, across traditional public and charter public schools receiving the CSI or TSI
designations. The commenter asks that the state clarify this point.
DEPARTMENT RESPONSE: Charter schools are identified as CSI and TSI in
the same manner as other public schools. However, interventions for charter schools
designed as a CSI or TSI school, pursuant to federal and state law, is differentiated
based on the school’s charter and the authorizer’s policies and procedures, which are
typically included as part of the school’s charter. The major authorizers in New York
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 have indicated that a school’s designation as a CSI or TSI school will result in a school
being required to take corrective actions and will be factored into renewal decisions.
107.

COMMENT: The regulations state that schools must administer a survey

to four groups annually: students, teachers, school leaders, and principals. The
regulations do not specify whether this survey must be the same instrument in all
schools across the state, or whether districts have autonomy to make decisions about
the survey. A commenter strongly encourages NYSED to reconsider the need for a
mandated survey as an intervention strategy for schools. The commenter urges NYSED
to give districts flexibility to determine the survey instrument that is most meaningful for
their context. The commenter also urges NYSED to keep surveys out of the state
accountability system. If the state explores this option, the commenter would implore
NYSED to allow districts to submit their local surveys for approval in lieu of a statewide
survey. For scoring purposes, the local and state survey could be equated to a shared
set of questions with similar wording to ensure that schools could all contribute scores
to a statewide metric.
DEPARTMENT RESPONSE: The requirement that identified schools survey
staff, parents, and students is intended to ensure that schools can gather feedback from
multiple stakeholders to identify needs to be addressed in the School Comprehensive
Education Plan. The Department will issue guidance to LEAs on ways to fulfill this
requirement and how LEAs may be permitted to identify survey instruments that best
meet their needs. The Department hopes that schools and districts look for various
ways to gather ongoing feedback from stakeholders and, therefore, the Department
would not restrict schools and district from using additional surveys beyond the survey
that the LEA uses to fulfill the annual survey requirement. There is no plan at this time
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 to include surveys as part of process for differentiating school accountability
designations.
108.

COMMENT: Explain how evidenced-based interventions (EBIs) will be

evaluated and monitored. The regulations lack clarity about how NYSED will monitor the
selection, use, implementation, and effectiveness of EBIs at CSI and TSI schools. For
instance, it would be helpful to know and plan for expectations that NYSED will have
about what counts as “evidence based” for interventions, what counts as “job
embedded” professional development aligned to EBIs, and how much autonomy
schools and districts will have in choosing EBIs to deploy at schools. Additionally, some
of the definition language suggests that in order for such evidence-based interventions
to be acceptable, they must help increase the enrollment of the school – which seems
outside of the scope of what the intervention is designed to do (i.e., to improve student
outcomes). The commenter asks for these points to be clarified, and strongly
recommends that NYSED allows local school districts to set their own direction in
selecting, implementing, and monitoring the implementation of interventions at low
performing schools (with guidance on how to stay in alignment with federal statutory
requirements for evidence base of interventions).
DEPARTMENT RESPONSE: The Department will monitor the identification of
evidence-based interventions through the School Comprehensive Education Plan
(SCEP) approval process in CSI schools. In addition, the Department may consider the
implementation and effectiveness of the intervention through the on-site Needs
Assessment process. LEAs must identify in their annual SCEP one evidence-based
intervention that meets the definition of either “Strong,” “Moderate,” or “Promising”
evidence as defined in Section 8101(21)(A) of ESSA. The Department will review the
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 evidence-based intervention identified when approving CSI school SCEPs. Districts will
be responsible for reviewing the evidence-based intervention identified in TSI school
SCEPs.
As stated in the ESSA plan, “CSI and TSI schools will have the flexibility to
identify an evidence-based intervention to address the root causes identified during the
needs assessment process.” The Department does not intend to mandate specific
interventions.
The regulations do not indicate that evidence-based interventions must
increase the enrollment of the school. The Department will use the definitions found in
Section 8101(21)(A) of ESSA to determine if an intervention meets the criteria for
evidence-based. However, there is language in the regulation that identifies the
expectation that an intervention “must be implemented so as to affect such percentage
of a school’s enrollment or such percentage of classrooms as may be prescribed by the
Commissioner for the school.” This language has been included to ensure that CSI
schools identify an intervention that is intended to impact sufficient numbers of students
at the school.
Finally, in addition to the definition of job-embedded professional
development identified in the Regulations, the Department will follow the definition of
Professional Development found in Section 8101(42) of ESSA when reviewing SCEPs
to ensure that professional development aligns to the law’s provision that PD does not
heavily really on “stand-alone, 1-day, or short-term workshops,” and instead allows for
individual practice of skills in authentic contexts and provides opportunities for feedback.
109.

COMMENT: Detail where money for the participatory budgeting process

will come from and how participatory budgeting processes will be administered. While
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 some aspects of participatory budgeting (PB) process are detailed in the regulations,
and while NYSED is administering a pilot program to better understand how PB can
work, we suggest incorporating clearer guardrails on PB programming at CSI schools in
the final regulations. Specifically, the commenter requests greater clarity about where
funds should come from to be used in PB, and - while the floor has been set at $2,000
per school – understanding the expectation of how much the state expects schools to
contribute to PB processes. It would also be helpful to know more about specific
programmatic components for how PB should work (e.g., voting and parent and teacher
participation).
DEPARTMENT RESPONSE: To ensure that implementation of participatory
budgeting is successful, the Department believes it would be better to conduct a pilot
process that informs the guidance given to districts and schools rather than define
specific parameters within regulations at this time. Similarly, while the proposed
regulations specify the minimum amount required to be used for participatory budgeting,
at this stage the Department would not want to restrain schools and districts that have
fully embraced participatory budgeting by putting limits on the amount that schools can
dedicate toward this endeavor.
110.

COMMENT: Revisit district- versus borough-level accountability. The

commenter strongly suggests that NYSED maintain the current structure for districtlevel accountability for New York City high schools. The commenter believes that
NYSED’s proposed designation of borough-level high school accountability does not
comport with the New York City Department of Education’s (NYCDOE) structure for
high school supervision, support, and accountability. The proposed change could also

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 potentially have a negative impact on the NYCDOE’s ongoing efforts to create vertical
alignment and a more seamless P-12 continuum.
DEPARTMENT RESPONSE: The regulations have been revised so that the
present accountability system in which community school districts are held accountable
for high school performance will be maintained.
111.

COMMENT: Provide additional guidance on performing Resource

Allocation Reviews/Audits. The commenter is seeking greater clarity on how NYSED will
examine (or require districts to examine) the effectiveness of professional development
and other provisions of the Resource Allocation Reviews/Audits. Additionally, the
regulations reference use of “best practices as determined by Commissioner,” without
specifying the guidelines in place for what practices these will be, or how CSI/TSI
schools will need to account for them in these Audits. The commenter would like to
continue to be able to determine the effectiveness of their own professional learning,
and they suggest the Commissioner engage with districts to understand and determine
an ongoing list of best practices in school improvement and transformation work.
DEPARTMENT RESPONSE: The Department appreciates the feedback that
more guidance is needed concerning the Resource Audit process. The Department
anticipates providing this information as part of the guidance and training that LEAs will
receive on the Needs Assessment process.
112.

COMMENT: Make Measures of Interim Progress an authentic, meaningful

lever for school improvement. Based on current schedule for release of school
performance data, there is little time left (at least for SY18-19) to use Measures of
Interim Progress as meaningful, authentic goals against which schools can hold
themselves accountable for performance improvement. The commenter urges NYSED
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 to make MIPs a greater focus of the new ESSA accountability system, with a goal of
moving beyond considering the system one of just accountability metrics and instead as
a means drive meaningful and continuous improvement at all schools.
DEPARTMENT RESPONSE: The Department is required to identify CSI and
TSI schools in 2018-19 using 2017-18 school year data. Since the 2018-19 school year
will be a planning year, there should be ample time for identified schools to develop
their plans for implementation in the 2019-20 school year. In addition, any current
Priority or Focus school will continue to implement their current plans in the 2018-19
school year.
113.

COMMENT: Several commenters shared views and concerns that did not

pertain to the regulations, but raised points regarding issues such as redistricting,
school segregation, school lotteries, NYS state standards, school curricula, testing in
general, assessment procedures, enrollment in college, and the value of hard work.
DEPARTMENT RESPONSE: These comments were outside the scope of the
regulations. Therefore, no response is necessary.
114. COMMENT: The commenter expressed concern that transfer schools will
be disproportionately identified as failing because of their mission to serve over-age,
under-credited students. The commenter requests that NYSED research alternative
metrics for transfer schools and weigh the success of students by means such as
completion of the HSE, attainment of workforce credentials and graduation after a sixth
year.
DEPARTMENT RESPONSE: The ESSA accountability system already takes
into account graduation after a sixth year. The earning of high school equivalency
diplomas is also part of the College, Career, and Civic Readiness Index and will be
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 incorporated into the accountability mechanism that recognizes the unique
circumstances of high schools. The Department intends to review regularly with
stakeholders the way in which it holds transfer high schools accountable, with the
possibility over time of revising current accountability metrics or adding new ones that
address the unique circumstances of these schools.

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 Attachment F

Letter from Mr. Patrick Rooney, Deputy Director, United States Department of
Education regarding ESSA Participation Rate Requirements

UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF ELEMENTARY AND SECONDARY EDUCATATION

AUG 23 2018

Ms. Jhone Ebert
Senior Deputy Commissioner for Education Policy
New York State Education Department
89 Washington Avenue
Albany, NY 12234
Dear Deputy Commissioner Ebert:
I am writing in response to your email on August 15, 2018, regarding the assessment requirements under
the
Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds
Act (ESSA). Specifically, you requested information regarding the assessment participation rate
requirements, including the potential consequences when a State is unable to meet the 95 percent
participation rate requirement.
Section I I I I of the ESEA (20 U.S.C. 6311(b)(2)) requires a State educational agency (SEA) that receives
funds under Title I, Part A of the ESEA to implement in each local educational agency (LEA) in the State
a set of high-quality, yearly academic assessments that includes, at a minimum, assessments in
mathematics, reading/language arts, and science to all public elementary and secondary school students.
With respect to reading/language arts and mathematics, the assessments must be administered in each of
grades 3 through 8 and not less than once in grades 9 through 12. With respect to science, the assessments
must be administered not less than once during grades 3 through 5, grades 6 through 9, and grades 10
through 12.
An SEA and LEA must provide for the participation of all students on the assessments (see ESEA
section I I I I (b)(2)(B)(vii)(I)) so that they can identify the learning progress of all students against the
same high expectations, regardless of a student's race, ethnicity, socioeconomic status, or
neighborhood. This requirement does not permit certain students or a specific percentage of students
to be excluded from assessments. Rather, it sets out the rule that all students in the tested grades must
be assessed.

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 With respect to a State's accountability system, the ESEA requires that each State include a measure of
academic achievement, for all public schools in the State, as measured by proficiency on the annual
reading/language arts and mathematics assessments (see ESEA section 1 1 1 1 (c)(4)(B)(i)). ESEA
section 1 1 1 1 (c)(4)(E) further requires that an SEA calculate the Academic Achievement indicator to
account for assessment participation rates. ESEA section 1 111 (c)(4)(E)(ii) specifically requires that an
SEA include in the denominator of this indicator the greater of (l) 95 percent of all students (or 95
percent of students in each subgroup, as the case may be) or (2) the number of students participating in
the assessments. Thus, the statute allows for up to five percent of students to not participate in annual
reading/language arts and mathematics assessment without it factoring into the calculation of the
Academic Achievement indicator.

Page 2 — Deputy Commissioner Jhone Ebert
In applying for funds under Title I, Part A of the ESEA, each SEA assures that it will administer the Title
I,
Part A program in accordance with all applicable statutes and regulations (see ESEA section
Similarly, each LEA that receives Title I, Part A funds assures that it will administer its Title I, Part A
program in accordance with all applicable statutes and regulations (see ESEA section 8306(a)(l)).
In addition, each State is required to implement with fidelity the consolidated State plan it submitted and
Secretary DeVos approved, including the requirement in section A.4.vii to describe the State's annual
measurement of achievement to factor in the requirement for 95 percent student participation in the
statewide reading/language arts and mathematics assessments. The New York State Education
Department (NYSED) indicated in its consolidated State plan a series of actions it would take if any LEA
or school exhibited a consistent pattern of testing fewer than 95 percent of all students and/or fewer than
95 percent of students in a particular subgroup, including that it would require schools that fail to meet
the 95 percent participation requirement to submit a self-assessment and participation rate improvement
plan to NYSED for the Commissioner's approval no less than three months prior to the next test
administration period.
To your question of what consequences could accrue if the SEA is out of compliance with the ESEA,
there are a range of enforcement actions available. These include sending a written request to the SEA
that it come into compliance, increasing monitoring, placing a condition on the SEA's Title I, Pan A grant
award, placing the SEA on high-risk status (2 C.F.R. 200.207 and 3474.10), issuing a cease and desist
order (GEPA section 456 (20 U.S.C. 1234e)), entering into a compliance agreement with the SEA to
secure compliance (GEPA 457 (20 U.S.C. 1234f)), withholding all or a portion of the SEA's Title I, Part
A administrative funds (ESEA section I I I I (a)(7) (20 U.S.C. 6311 (a)(7))), and suspending, and then
withholding, all or a portion of the State's Title I, Part A programmatic funds (GEPA section 455 (20
U.S.C. 1234d)). An SEA has similar enforcement actions available to it with respect to noncompliance by
an LEA, including withholding an LEA's Title 1, Pan A funds. see, e.g., GEPA section 440 (20 U.S.C.
1232c(b)).
Please note that an LEA may not avoid administering the State assessments required under ESEA section
1 1 1 1 (b)(2) by declining to accept Title I, Part A funds. As noted above, the assessment requirements
are State-level requirements that apply to any SEA that accepts Title I, Part A funds. That SEA must then
administer its assessments statewide — including to students in LEAs that do not participate in Title I,
Part

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 I look forward to working with you to ensure that all students participate in statewide assessments during
2018-2019 school year and each year thereafter. If you need additional information or clarification, please
do not hesitate to contact Denise M. Joseph of my staff at: OSS.NewYork@ed.gov. Thank you for your
continued commitment to enhancing education for all of New York's students.
Sincerely,

Patrick Rooney
Deputy Director

Office of State Support
cc:

Ira Schwartz, Assistant Commissioner, Office of Accountability

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