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

 

TO:

EMSC-VESID Committee

FROM:

Jean C. Stevens

 

SUBJECT:

Proposed Amendment to the Regulations of the Commissioner Relating to Public School and District Accountability

 

DATE:

November 15, 2006

STRATEGIC GOAL:

Goals 1 and 2

AUTHORIZATION(S):

 

 

 

 

SUMMARY

 

 

Issue for Decision

 

Should the Regents confirm the emergency action taken in September on the proposed amendment to subdivision (p) of section 100.2 of the Regulations of the Commissioner of Education relating to public school and district accountability?

 

Reason(s) for Consideration


          Required by federal statute.

 

Proposed Handling

 

The proposed rule was adopted as an emergency measure at the September Regents meeting and will come before the Regents EMSC-VESID Committee in December for adoption as a permanent rule.  A second emergency adoption is also necessary at the December meeting to ensure that the September emergency rule remains continuously in effect until the effective date of its adoption as a permanent rule.  A statement of the facts and circumstances which necessitate emergency action is attached.   

 

Procedural History

 

The proposed rule was discussed by the Committee at its September meeting and adopted as an emergency measure, effective September 19, 2006. 

 

Background Information

 

The proposed amendment is necessary to conform the Commissioner's Regulations to the No Child Left Behind Act of 2001 (NCLB) relating to school and local educational agency accountability. Adoption of the proposed amendment is also necessary to ensure conformance with New York’s approved NCLB accountability workbook and to implement provisions of New York’s plan submitted to the United States Department of Education (USDOE) on August 2, 2006 to address issues raised by USDOE’s peer review of New York’s assessment system.  Failure to address these issues may result in corrective actions by the USDOE, including the withholding of State Title I administrative funds.

 

          On July 27, 2006, Henry L. Johnson, the Assistant Secretary of the Office of Elementary and Secondary Education of the USDOE, informed Commissioner Mills that USDOE had approved New York’s request to amend its State accountability plan under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the NCLB. The purposes of the proposed amendment are to conform the Commissioner’s Regulations with the approved NCLB accountability plan and to implement New York’s plan to address the findings of the USDOE peer review of New York’s assessment program by:

 

(1)      modifying the School Performance Index to incorporate the results from New York’s grade 3-8 assessment program in English language arts and mathematics;

(2)      revising the Annual Measurable Objectives in English language arts and mathematics to reflect the use of grade 3-8 test results;

(3)      combining the elementary and secondary science criteria into a single combined elementary-middle level science criterion;

(4)      revising the definition of the graduation cohort beginning with the 2003 graduation cohort to make schools accountable for students after they received five months of instruction in a school or district;

(5)      incorporating in the limited English proficient (LEP)  subgroup students who had previously been considered LEP students during the prior one or two years in order to calculate Adequate Yearly Progress;

(6)      restricting the use of backmapping to schools serving exclusively students below grade three;

(7)      revising the timelines for schools and local educational agencies whose 2006-2007 accountability status is dependent on 2005-2006 grade 3-8 assessment results to take certain actions required of schools and local educational agencies identified as requiring academic progress or as in need of improvement;

(8)      indicating that the New York State English as a Second Language Achievement Test (NYSESLAT) will no longer be administered, in lieu of the required State assessment in English language arts, for accountability purposes beyond the 2005-2006 school year; and

(9)      restricting the use of the NYSESLAT, for participation rate purposes, to limited English proficient students who have attended school in the United States (not including Puerto Rico) for one year.

 

Supporting materials for the proposed rule are available upon request from the Secretary to the Board of Regents.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on October 4, 2006.

 

Recommendation

 

          It is recommended that the Board of Regents take the following action:

 

VOTED:  That subdivision (p) of section 100.2 of the Regulations of the Commissioner be amended as submitted, effective December 28, 2006.

 

VOTED:  That subdivision (p) of section 100.2 of the Regulations of the Commissioner be amended as submitted, effective December 12, 2006, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to ensure that the emergency rule adopted at the September Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule.

 

Timetable for Implementation

 

          The December second emergency adoption will become effective on December 12, 2006 and the December permanent adoption will become effective December 28, 2006. 

 

 

Attachment


PROPOSED AMENDMENT OF SECTION 100.2(p) OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSANT TO EDUCATION LAW SECTIONS 101, 207, 210, 215, 305, 309 and 3713, RELATING TO PUBLIC SCHOOL AND DISTRICT ACCOUNTABILITY

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The purpose of the proposed amendment is to conform the Commissioner's Regulations to the provisions of the No Child Left Behind Act of 2001 (NCLB) relating to school and local educational agency accountability. The State and local educational agencies, including school districts, BOCES and charter schools, are required to comply with NCLB as a condition to their receipt of federal funding under Title I of the Education and Secondary Education Act (ESEA), as amended. 

          On July 27, 2006, Henry L. Johnson, the Assistant Secretary of the Office of Elementary and Secondary Education of the United States Department of Education (USDOE), informed Commissioner Mills that USDOE had approved New York’s request to amend its State accountability plan under Title I of the ESEA, as amended by the NCLB.  The proposed amendment will conform the Commissioner’s Regulations with the approved NCLB accountability plan and implement New York’s plan to address the findings of the USDOE peer review of New York’s assessment program by: (1) modifying the School Performance Index to incorporate the results from New York’s grade 3-8 assessment program in English language arts and mathematics; (2) revising the Annual Measurable Objectives in English language arts and mathematics to reflect the use of grade 3-8 test results; (3) combining the elementary and secondary science criteria into a single combined elementary-middle level science criterion; (4) revising the definition of the graduation cohort beginning with the 2003 graduation cohort to make schools accountable for students after they received five months of instruction in a school or district; (5) incorporating in the limited English proficient (LEP)  subgroup students who had previously been considered LEP students during the prior one or two years in order to calculate Adequate Yearly Progress; (6) restricting the use of backmapping to schools serving exclusively students below grade three; (7) revising the timelines for schools and local educational agencies whose 2006-2007 accountability status is dependent on 2005-2006 grade 3-8 assessment results to take certain actions required of schools and local educational agencies identified as requiring academic progress or as in need of improvement; (8) indicating that the NYSESLAT will no longer be administered, in lieu of the required State assessment in English language arts, for accountability purposes beyond the 2005-2006 school year; and (9) restricting the use of the NYSESLAT, for participation rate purposes, to limited English proficient students who have attended school in the United States (not including Puerto Rico) for one year.

The proposed amendment was adopted at the September 11-12, 2006 Regents meeting as an emergency measure, effective September 19, 2006, in order to ensure that decisions regarding whether schools and districts make Adequate Yearly Progress are consistent with New York’s approved NCLB accountability plan and are based upon the results of the English language arts and mathematics assessments first administered to students during the 2005-2006 school year; and to implement in part the provisions of New York’s plan submitted to the United State Department of Education on August 2, 2006, which address the findings of the USDOE peer review of New York’s assessment program.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on October 4, 2006.

It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at their December 4-5, 2006 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.  Pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on December 27, 2006.  However, the September emergency adoption will expire on December 17, 2006, 90 days after its filing with the Department of State on September 19, 2006.  A disruption in the rule's effectiveness would place New York at risk of USDOE corrective actions, which may include loss of State Title I administrative funds.  A second emergency adoption is therefore necessary to ensure that the amendment remains continuously in effect until the effective date of its adoption as a permanent rule. 

 


AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

          Pursuant to Education Law sections 101, 207, 210, 215, 305, 309 and 3713

Subdivision (p) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective December 12, 2006 as follows:

            (p)  Registration of schools and school/district accountability.  Nonpublic schools may be, and public elementary, intermediate, middle, junior high, and high schools shall be, registered by the Board of Regents pursuant to this subdivision upon recommendation by the commissioner, provided that charter schools shall not be subject to registration pursuant to this subdivision, but shall be held accountable for meeting or exceeding the student performance standards and student assessment requirements applicable to other public schools in accordance with the provisions of article 56 of the Education Law.  No school district may operate a public school whose registration has been revoked by the Board of Regents pursuant to paragraph (10) of this subdivision or has lapsed pursuant to paragraph (3) of this subdivision.  Only those public and nonpublic high schools which are registered by the Board of Regents upon recommendation of the commissioner, may issue diplomas and administer Regents examinations, except that charter schools may issue diplomas and administer Regents examinations as authorized by article 56 of the Education Law.

          (1)  Definitions. As used in this subdivision:

          (i)  Accountability groups shall mean, for each public school, school district and charter school, those groups of students for each grade level or annual high school cohort, as described in paragraph (16) of this subdivision comprised of: all students; students from major racial and ethnic groups, as set forth in subparagraph (bb)(2)(v) of this section; students with disabilities, as [defied] defined in section 200.1 of this Title; students with limited English proficiency, as defined in Part 154 of this Title[;], including, beginning with the 2006-2007 school year, a student previously identified as a limited English proficient student during the preceding one or two school years; and economically disadvantaged students, as identified pursuant to section 1113(a)(5) of the NCLB, 20 U.S.C. section 6316(a)(5) (Public Law, section 107-110, section 1113(a)(5), 115 STAT, 1469; 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).  The school district accountability groups for each grade level will include all students 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.

          (ii)  School 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 [extend] extent that such entity is the local educational agency for purposes of [title] Title I.

          (iii)  .   .   .

          (iv)  Performance index shall be calculated based on the four student performance levels defined in this subparagraph.  Each student scoring at level 1 will be credited with 0 [zero] points, each student scoring at level 2 with 100 points, and each student scoring at level 3 or 4 with 200 points.  The performance index for each accountability group will be calculated by summing the points and dividing by the number of students in the group.

          (v)  Performance levels shall mean:

          (a)  level 1/basic:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          (ii)  for the 2005-2006 school year and prior school years, a score for certain limited English proficient students pursuant to subparagraph (14)[(vi)] (viii) of this subdivision, in lieu of the State assessment in English language arts, that shows level 1 growth on the New York State English as a Second Language Assessment Test (NYSESLAT);

          (iii)  .   .   .

          (2)  .   .   .

          (b)  level 2/basic proficient:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          (ii)  for the 2005-2006 school year and prior school years, a score for certain limited English proficient students pursuant to subparagraph (14)[(vi)] (viii) of this subdivision, in lieu of the State assessment in English language arts, that shows level 2 growth on the NYSESLAT;

          (2)  .   .   .

          (c)  level 3/proficient:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          (ii)  for the 2005-2006 school year and prior school years, a score for certain limited English proficient students pursuant to subparagraph (14)[(vi)] (viii) of this subdivision, in lieu of the State assessment in English language arts, that shows level 3 growth on the NYSESLAT;

          (2)  .   .   .

          (d)  level 4/advanced:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          [(ii) a score for certain limited English proficient students pursuant to subparagraph (14)(vi) of this subdivision, lieu of the required State assessment in English language arts, that shows level 4 growth on the NYSESLAT;]

          (2)  .   .   .

          (vi)  .   .   .

          (vii)  .   .   .

          (viii)  .   .   .

          (ix)  .   .   .

          (x)  .   .   .

          (xi)  For elementary and middle-level students, participation rate means the percentage of students enrolled on all days of test administration who did not have a significant medical emergency who received valid scores on the State assessments for elementary and middle-level [schools] grades, as set forth in subparagraph (v) of this paragraph.  Beginning with the 2006-2007 school year, a  limited English proficient student enrolled in school in the United States (excluding Puerto Rico) for less than one year as of a date determined by the commissioner and who received a valid score on the NYSESLAT may be counted as participating in an elementary or middle level English language arts assessment.

          (xii)  .   .   .

          (xiii)  .   .   .

          (2)  .   .   .

          (3)  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.

          (4)  .   .   .

          (5)  Adequate yearly progress.  (i)  .   .   .

          (ii)  .   .   .

          (iii)  .   .   .

          (iv)  .   .   .

          (v)  A public school, charter school or school district shall be deemed to have made adequate yearly progress on a performance indicator specified in paragraph (15) of this subdivision if:

          (a)  .   .   .

          (b)  the "all students" accountability group in the school or school district at the applicable grade [level] levels or high school cohort met or exceeded the performance indicator and, for elementary and middle levels, and beginning in 2005-2006 for the elementary-middle level, 80 percent of students enrolled on all days of the science test administration, who did not have a significant medical emergency, received valid scores.

          (vi)  .   .   .

          (vii) The school accountability status of public schools, school districts, and charter schools serving grades 1 and/or 2 [and/or 3], but not grade [4] 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 [4] 3 students from feeder schools by contract, the grade [four] three State assessment results for each feeder school student will be attributed to the feeder school as well as to the school or charter 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 the date prescribed by the commissioner on which the BEDS forms are required to be completed until the end of the school year in the highest grade served by the feeder school.  In a district, if all schools serving grade [four] three make adequate yearly progress in a given year, all feeder schools served by the district will be deemed to have made adequate yearly progress.  If one or more schools enrolling students from a feeder school fail to make adequate yearly progress on a criterion set forth at subparagraphs (14)[(i) and (iii)] (iii) and (vi) of this subdivision, the commissioner will aggregate the district's [fourth-] grade three results on that criterion by feeder school and determine whether each feeder school made adequate yearly progress on that criterion.  If a feeder school fails to make adequate yearly progress on the same criterion for two consecutive years, the school will be identified as a school requiring academic progress.

          (6)  Schools requiring academic progress.  (i)  .   .   .

          (ii)  .   .   .

          (iii)  .   .   .

          (iv)  .   .   .

          (v)  A public school that is identified as a "school requiring academic progress: year 4" that fails to make adequate yearly progress on the same criterion or indicator for which it has been identified as a "school requiring academic progress: year 4" shall be designated in the next school year as a "school requiring academic progress: year 5.”  The school district shall implement its restructuring plan no later than the first day of regular school attendance of the year following the administration of the assessments which caused the school to be identified as a "school requiring academic progress: year 5," or commence implementation to the extent practicable immediately upon an identification if such an identification occurs after the first day of regular student attendance.  If a school fails to make adequate yearly progress for two consecutive years during the three school years following the implementation of the restructuring plan, then a revised restructuring plan in such format as may be prescribed by the commissioner shall be developed by the school superintendent (in New York City, the chancellor's designee) and, to the extent appropriate, consistent with section 100.11 of this Title.  Such restructuring plan shall be formally approved by the board of education (in New York City, both the New York City Board of Education and the community school board for schools under the jurisdiction of the community school district) no later than June 30th of the school year in which such plan is required.

          (vi)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that received funds under title I for two consecutive years during which the school did not make adequate yearly progress shall be identified for school improvement under section 1116(b) of the No Child Left Behind Act (NCLB), 20 U.S.C. section 6316(b)(1)-(3) and is subject to the requirements therein (Public Law, section 107-110, section 1116(b), 115 STAT. 1479 - 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). 

          (vii)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that is identified for school improvement under section 1116(b) of the NCLB, 20 U.S.C section 6316(b) that fails to make adequate yearly progress in any subsequent year in which it receives funds under title I shall be required in the next school year in which it receives title I funds to implement the provisions of section 1116(b)(5) of the NCLB, 20 U.S.C section 6316(b)(5) (Public Law, section 107-110, section 1116 (b)(5), 115 STAT. 1482-1483; 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).

          (viii)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that is subject to the provisions of section 1116(b)(5) of the NCLB, 20 U.S.C section 6316(b)(5) that fails to make adequate yearly progress in any subsequent year in which it receives funds under title I shall be required in the next school year in which it receives title I funds to implement the provisions of section 1116(b)(7) of the NCLB, 20 U.S.C section 6316(b)(7) (Public Law, section 107-110, section 1116 (b)(7), 115 STAT. 1483-1485; 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).

          (ix)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that is subject to the provisions of section 1116(b)(7) of the NCLB, 20 U.S.C section 6316(b)(7), that fails to make adequate yearly progress in any subsequent year in which it receives funds under title I shall be required to implement in the next school year in which it receives title I funds the provisions of section 1116(b)(8) of the NCLB, 20 U.S.C section 6316(b)(8) (Public Law, section 107-110, section 1116 (b)(8), 115 STAT. 1485-1486; 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).

          (x)  Upon a finding of [exceptionally] exceptional or uncontrollable circumstances, the commissioner may delay for a period of one year the identification of a public school under this paragraph.

          (xi)  [A school that was required to implement a school improvement plan as of June 30, 2003, pursuant to section this subdivision in effect on that date, shall be deemed a "school requiring academic progress: year 1" for the 2002-03 school year.] Not withstanding any other provision of law, for the 2006-2007 school year, a public school or charter school subject to the provisions of subparagraphs (vi)-(ix) of this paragraph which accountability status is dependent upon the 2005-2006 assessment results for grades 3-8 and which does not receive notice of such status until after the first day of regular school attendance for the 2006-2007 school year shall, immediately upon receipt of such notice, provide written notification to parents of eligible students of the student’s right to school choice pursuant to section 1116(b)(1)(E) of the NCLB, 20 U.S.C section 6316(b)(1)(E),  and supplementary education services (SES) pursuant to section 1116(b)(5)(B) of the NCLB, 20 U.S.C. section 6316(b)(5)(B), as appropriate (Public Law, section 107-110, section 1116 (b)(1)(E), 115 STAT. 1479; Public Law, section 107-110, section 1116(b)(5)(B), 115 STAT. 1482-1483; 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).  The school district or charter school shall implement such school choice and, if required, SES immediately.  Implementation of new/revise improvement/correction action/restructuring plan required under section 1116 of the NCLB must commence to the extent practicable within ninety (90) days of notification of accountability status.

          (xii)  [A public school that was identified as a "school in need of improvement year 1" for the 2002-2003 school year under title I shall be deemed a "school requiring academic progress: year 1" for the 2002-2003 school year.]  For 2005-2006, a public school or charter school will be considered to have not made adequate yearly progress (AYP) for two consecutive years if it failed to make AYP in English language arts (ELA) or, mathematics, or science at grade 4 and/or grade 8 in 2004-2005 and fails to make AYP at the elementary-middle level (grades 3-8) in 2005-2006 in the same subject(s).

          (xiii)  [A public school that was identified as a "school in need of improvement year 2" for the 2002-2003 school year under title I shall be deemed a "school requiring academic progress: year 2" for the 2002-2003 school year.]  A school in need of improvement at the grade 4 or 8 level in 2005-2006 will be in need of improvement in 2006-2007 at the elementary-middle level unless it made AYP in the subject and grade level for which it was identified in 2004-2005 and also makes AYP in that subject at the elementary-middle level in 2005-2006.

          (xiv)  [A public school that was identified as a "school in corrective action" for the 2002-2003 school year shall be deemed a "school requiring academic progress: year 3" for the 2002-2003 school year.

          (xv)]  A public school requiring academic progress that makes adequate yearly progress for two consecutive years on all criteria and indicators for which it has been identified shall be removed from school requiring academic progress status.

          [(xvi)] (xv)  A public school or charter school that makes adequate yearly progress for two consecutive years on all criteria and indicators for which it has been identified shall no longer be subject to the requirements of section 1116(b) of the NCLB, 20 U.S.C. section 6316(b) (Public Law, section 107-110, section 1116(b), 115 STAT. 1479-1487; 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).

          [(xvii)] (xvi)  Based upon review of a public school's performance since its identification as requiring academic progress, the commissioner may require, in such form and according to such timeline as the commissioner may prescribe, that the district submit for the commissioner's approval a school improvement, corrective action or restructuring plan.  The commissioner may also require that any subsequent modification of such plan be submitted for prior approval.

          (7)  Districts requiring academic progress.  (i)  Commencing with 2003-2004 school year results, a district that failed to make adequate yearly progress on all applicable criteria in paragraph (14) of this subdivision in a subject area, or all applicable indicators in subparagraphs (15)(i) [and (ii)] through (iii) of this subdivision, or the indicator in subparagraph (15)[(iii)](iv) of this subdivision, for two consecutive years shall be designated as a "district requiring academic progress."  A district improvement plan in such format as may be prescribed by the commissioner shall be developed by each district requiring academic progress.  Such district improvement plan shall be formally approved by the board of education (in New York City, both the New York City Board of Education and the community school board for schools under the jurisdiction of the community school district) no later than three months following the identification of the district as requiring academic progress and submitted to the commissioner for approval.  The plan shall be implemented no later than beginning of the next school year after the school year in which the school district was identified as requiring academic progress or immediately, to the extent practicable, upon approval of the board, if such identification occurs after the first day of regular student attendance.  Such plan shall be developed in consultation with parents, school, staff, and others.  The plan shall be revised annually and resubmitted to the commissioner for approval no later than July 31st of each school year in which the district remains identified as requiring academic progress. Any modification of the district's approved improvement plan shall require the prior approval of the commissioner.

          (ii)  Commencing with 2003-2004 school year results:

          (a)  a district identified as requiring academic progress for failing to make adequate yearly progress on all applicable criterion in paragraph (14) of this subdivision in a subject area shall be removed from such status if it makes adequate yearly progress for two consecutive years on any criterion in the subject area for which it is identified;

          (b)  a district identified as requiring academic progress for failing to make adequate yearly progress on [both] every applicable indicator[s] set forth at subparagraphs (15)(i) [and (ii)] through (iii) of this subdivision shall be removed from such status if it makes adequate yearly progress for two consecutive years on [either of such] any applicable indicators; and

          (c)  a district identified as requiring academic progress for failing to make adequate yearly progress on the indicator set forth at subparagraph (15)[(iii)](iv) of this subdivision shall be removed from such status if it makes adequate yearly progress for two consecutive years on such indicator; provided that for a district requiring academic progress that is removed from such status based on 2002-2003 and 2003-2004 results, such district shall have made adequate yearly progress in 2002-2003 on each criterion or indicator for which it was identified.

          (iii)   Except as provided in subparagraph (vi) of this paragraph, [A] a local educational agency (LEA) that received funds under [title] Title I for two consecutive years during which the LEA did not make adequate yearly progress on all applicable criteria in paragraph (14) of this subdivision in a subject area, or all applicable indicators in subparagraphs (15)(i) [and (ii)] through (iii) of this subdivision, or the indicator in subparagraph (15)[(iii)] (iv) of this subdivision, shall be identified for improvement under section 1116(c) of the NCLB, 20 U.S.C. section 6316(c) and shall be subject to the requirements therein (Public Law, section 107-110, section 1116(c), 115 STAT. 1487-1491; 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).

          (iv)  Except as provided in subparagraph (vi) of this paragraph, [At] at any time following the identification of an LEA for improvement, the commissioner may further identify the local educational agency for corrective action under section 1116(c)(10) of the NCLB, 20 U.S.C. section 6316(c)(10).  The commissioner shall identify such LEA for corrective action if, by the end of the second full school year the LEA has failed to make adequate yearly progress.  The commissioner may delay identification of an LEA for corrective action for a period of one year pursuant to section 1116(c)(10)(F) of the NCLB, 20 U.S.C. section 6316(c)(10)(F) (Public Law, section 107-110,section 1116(c)(10), 115 STAT. 1489-1491; 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).

          (v)  .   .   .

          (vi) Not withstanding any other provision of law, an LEA subject to the provisions of subparagraphs (iii) and (iv) of this paragraph which accountability status is dependent upon the 2005-2006 assessment results for grades 3-8 and which does not receive notice of such status until after the first day of regular attendance for the 2006-2007 school year, shall immediately commence implementation, to the extent practicable, of any plan required to be implemented pursuant to section 1116(c) of the NCLB.

          (8)  High performing and rapidly improving schools and districts.  (i)  Commencing with 2003-2004 school year results, the commissioner shall annually identify as "high performing" public schools, school districts, and charter schools in which:

          (a)  the school or district meets or exceeds the benchmarks established by the commissioner pursuant to subparagraph (14)[(vii)] (ix) of this subdivision; and

          (b)  the school or district has made adequate yearly progress on all applicable criteria and indicators in paragraphs (14) and (15) of this subdivision for two consecutive years.

          (ii)  Commencing with 2004-2005 school year results, the commissioner shall annually identify as "rapidly improving" public schools, school districts, and charter schools in which:

          (a)  the school or district is below the benchmark established by the commissioner pursuant to subparagraph (14)[(vii)] (ix) of this subdivision;

          (b)  the school or district has improved its performance by an amount determined by the commissioner during the past three years on each applicable criterion in paragraph (14) of this subdivision in which it is below the benchmark established by the commissioner; and

          (c)  the school or district has made adequate yearly progress on all applicable criteria and indicators in paragraphs (14) and (15) of this subdivision for three consecutive years.

          (iii)  .   .   .

          (9)  Identification of schools for public school registration review.  The commissioner shall place under registration review those schools that are determined to be farthest from meeting the benchmarks established by the commissioner pursuant to subparagraph (14)[(vii)] (ix) of this subdivision and most in need of improvement.  In determining the number of schools to identify as farthest from meeting the benchmarks, the commissioner shall give primary consideration to the percentages of students meeting performance benchmarks.  The commissioner may also consider the sufficiency of State and local resources to effectively implement and monitor school improvement efforts in schools under registration review.  In addition, any school that does not meet or exceed each of the benchmarks and 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 may be 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, 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.  The commissioner may also place under registration review any school for which a 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.

          (i)  .   .   .

          (ii)  The commissioner shall review the additional information provided by the district and determine which of the schools identified as farthest from meeting the benchmarks specified in subparagraph (14)[(vii)] (ix) of this subdivision or identified as poor learning environments are most in need of improvement and shall be placed under registration review.

          (iii)  .   .   .

          (10)  .   .   .

          (11)  .   .   .

          (12)  .   .   .

          (13)  .   .   .                             

          (14)  Public school, school district and charter school accountability performance criteria. [Commencing with the 2002-03 school year, each] Each district and school accountability group, as defined in subparagraph (1)(i) of this subdivision shall be subject to the performance criteria specified below:

          (i)  Elementary level English language arts.  Annual measurable objectives, based on a performance index, set at 123 in 2002-03 and 2003-04 and 131 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          (ii)  Middle level English language arts.  Annual measurable objectives, based on a performance index, set at 107 in 2002-03 and 2003-04 and 116 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          (iii)  Elementary-middle level English language arts.  Annual measurable objectives, based on a performance index, set by the commissioner in 2005-2006 and, beginning in 2008-2009, increasing annually in equal increments so as to reach 200 in 2013-2014.

          [(iii)] (iv)  Elementary level mathematics.  Annual measurable objectives, based on a performance index, set at 136 in 2002-03 and 2003-04 and 142 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          [(iv)] (v) Middle level mathematics.  Annual measurable objectives, based on a performance index, set at 81 in 2002-03 and 2003-04 and 93 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          [(v)  High school English language arts and mathematics requirements.  Annual measurable objectives, based on the performance index of the high school cohort defined in paragraph (16) of this subdivision, set at 142 in English language arts and 132 in mathematics in 2002-03 and 2003-04, and incremented annually thereafter as necessary so that in 2013-2014 the index shall be 200.]

          (vi) Elementary-middle level mathematics.  Annual measurable objectives, based on a performance index, set by the commissioner in 2005-2006 and, beginning in 2008-2009, increasing annually in equal increments so as to reach 200 in 2013-2014.

 [Beginning with the 2002-03 school year test administrations, for purposes of the commissioner's annual evaluation of public schools, public school districts, and charter schools, the following limited English proficient students in grades 4 and 8 may be considered to be meeting performance criteria in English language arts if they demonstrate a specified increment of progress on the New York State English as a Second Language Achievement Test for their grade level.  For limited English proficient students in grades 4 and 8 who have attended school in the United States (not including Puerto Rico) for fewer than three consecutive years, districts and charter schools may administer the NYSESLAT to such students in lieu of the required State assessment in English language arts.  Districts or charter schools may, on an individual basis, annually determine to administer the NYSESLAT in lieu of the required assessment in English language arts to limited English proficient students who have attended school in the United States (not including Puerto Rico) for four or five consecutive school years.  No exemption is available beyond the student's fifth year and the student must take the required fourth or eighth grade English language arts assessment.]

          (vii)  High school English language arts and mathematics requirements.  Annual measurable objectives, based on the performance index of the high school cohort defined in paragraph (16) of this subdivision, set at 142 in English language arts and 132 in mathematics in 2002-03 and 2003-04, and incremented annually thereafter as necessary so that in 2013-2014 the index shall be 200.

          (viii) For the 2002-2003 through the 2005-2006 school year test administrations, for purposes of the commissioner's annual evaluation of public schools, public school districts, and charter schools, the following limited English proficient students may be considered to be meeting performance criteria in elementary or middle-level English language arts if they demonstrate a specified increment of progress on the New York State English as a Second Language Achievement Test (NYSESLAT) for their grade level.  For limited English proficient students who have attended school in the United States (not including Puerto Rico) for fewer than three consecutive years, districts and charter schools may administer the NYSESLAT to such students in lieu of the required State assessment in English language arts.  Districts or charter schools may, on an individual basis, annually determine to administer the NYSESLAT in lieu of the required assessment in English language arts to limited English proficient students who have attended school in the United States (not including Puerto Rico) for four or five consecutive school years.  No exemption is available beyond the student's fifth year and the student must take the required English language arts assessment.

          [(vii)] (ix)  For each criterion (subparagraphs (i) through [(v)] (vii) of this paragraph), the commissioner shall also establish a benchmark against which the performance of the accountability group, all students, defined in subparagraph (1)(i) of this subdivision, will be measured.  This benchmark will be used in recognizing high-performing schools and districts, determining which school districts are required to develop local assistance plans as described in paragraph (m)(6) of this section and for identifying those schools that are subject to registration review pursuant to paragraph (9) of this subdivision.

          (15)  Additional public school, school district, and charter school accountability indicators.

          (i)  Elementary science indicator:  For the 2002-2003 through 2004-2005 school years,

          (a) an index of 100 that may be incremented annually, as the commissioner deems appropriate, or progress in relation to performance in the previous school year; and

          (b)  beginning in 2004-05, 80 percent of students enrolled on all days of the test administration, who did not have a significant medical emergency, received valid scores.

          (ii)  Middle-level science indicator:  For the 2002-2003 through 2004-2005 school years,

          (a)  an index of 100 that may be incremented annually, as the commissioner deems appropriate, or progress in relation to performance in the previous year; and

          (b)  beginning in 2004-05, 80 percent of students enrolled on all days of the test administration, who did not have a significant medical emergency, received valid scores.

          (iii) Elementary-middle science combined indicator:  For the 2005-2006 school year and thereafter:

          (a)  an index of 100 that may be incremented annually, as the commissioner deems appropriate, or progress in relation to performance in the previous year; and

          (b)  80 percent of students enrolled on all days of the test administration, who did not have a significant medical emergency, received valid scores.

          [(iii)] (iv)  A high school graduation rate established annually by the commissioner, or progress in relation to the previous school year's graduation rate.  The graduation rate is the percentage of the annual graduation rate cohort that earns a local [diploma (with or without a Regents endorsement)] or Regents diploma by August 31st following the third school year after the school year in which the cohort first entered [of the fourth calendar year after first entering] grade 9, except that in a school in which the majority of students participate in a department-approved, five-year program that results in certification in a career or technology field in addition to a high school diploma, the graduation rate shall be the percentage of the annual graduation rate cohort that earns a local diploma by August 31st  following the fourth school year after the school year in which the cohort first entered [of the fifth calendar year after first entering] grade 9.

          (16)  Annual high school or high school alternative cohort.  (i)   Beginning in the 2005-2006 school year, except [Except] as provided in clauses (a) and (b) of this subparagraph, the annual high school cohort for purposes of determining adequate yearly progress on the criteria set forth at subparagraph (14)[(vi)] (vii) of this subdivision and identifying schools for registration review pursuant to paragraph (9) of this subdivision for any given school year shall consist of those students who first enrolled in ninth grade three school years previously anywhere and who were enrolled in the school on the first Wednesday in October of the [previous] current school year. The annual district high school cohort for purposes of determining such adequate yearly progress for any given school year shall consist of those students who first enrolled in ninth grade three school years previously anywhere and who were enrolled in the district or placed by the district committee on special education or by district officials in educational programs outside the district on the first Wednesday in October of the [previous] current school year.  Students with disabilities in ungraded programs shall be included in the annual district and high school cohort in the [fourth] third school year following the one in which they attained the age of [16] 17. 

          (a)  .   .   .

          (b)  .   .   .

          (ii) (a)  For purposes of determining adequate yearly progress on the indicator set forth at subparagraph (15)[(iii)] (iv) of this subdivision, the graduation rate cohort for each public school, school district, and charter school for each school year from 2002-03 [until 2005-06] through 2006-2007 shall consist of all members of the school or district high school cohort, as defined in subparagraph (i) of this paragraph, for the previous school year plus any students excluded from that cohort solely because they transferred to an approved alternative high school equivalency or high school equivalency preparation program.

          (b) Commencing with the 2007-08 school year, for purposes of determining adequate yearly progress on the indicator set forth at subparagraph (15)(iv) of this subdivision:

          (1)  the graduation rate cohort for each public school and charter school shall consist of those students who first enrolled in grade 9 anywhere three school years previously or, if an ungraded student with a disability, first attained the age of 17 three school years previously, and who have spent at least five consecutive months, not including July and August, in the school since first entering grade 9 and whose last enrollment_ in the school did not end because of transfer to another school, death, court-ordered transfer, or leaving the United States.

          (2)  the graduation rate cohort for each public school district shall consist of those students who first enrolled in grade 9 anywhere three school years previously or, if an ungraded student with a disability, first attained the age of 17 three school years previously , and who have spent at least five consecutive months, not including July and August, in the district since first entering grade 9 and whose last enrollment in the district did not end because of transfer to another district, death, court-ordered transfer, or leaving the United States.

          (iii)  .   .   .

          (17)  .   .   .

          (18)  .   .   .

          (19)  .   .   .


AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

          Pursuant to Education Law sections 101, 207, 210, 215, 305, 309 and 3713

Subdivision (p) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective December 28, 2006 as follows:

            (p)  Registration of schools and school/district accountability.  Nonpublic schools may be, and public elementary, intermediate, middle, junior high, and high schools shall be, registered by the Board of Regents pursuant to this subdivision upon recommendation by the commissioner, provided that charter schools shall not be subject to registration pursuant to this subdivision, but shall be held accountable for meeting or exceeding the student performance standards and student assessment requirements applicable to other public schools in accordance with the provisions of article 56 of the Education Law.  No school district may operate a public school whose registration has been revoked by the Board of Regents pursuant to paragraph (10) of this subdivision or has lapsed pursuant to paragraph (3) of this subdivision.  Only those public and nonpublic high schools which are registered by the Board of Regents upon recommendation of the commissioner, may issue diplomas and administer Regents examinations, except that charter schools may issue diplomas and administer Regents examinations as authorized by article 56 of the Education Law.

          (1)  Definitions. As used in this subdivision:

          (i)  Accountability groups shall mean, for each public school, school district and charter school, those groups of students for each grade level or annual high school cohort, as described in paragraph (16) of this subdivision comprised of: all students; students from major racial and ethnic groups, as set forth in subparagraph (bb)(2)(v) of this section; students with disabilities, as [defied] defined in section 200.1 of this Title; students with limited English proficiency, as defined in Part 154 of this Title[;], including, beginning with the 2006-2007 school year, a student previously identified as a limited English proficient student during the preceding one or two school years; and economically disadvantaged students, as identified pursuant to section 1113(a)(5) of the NCLB, 20 U.S.C. section 6316(a)(5) (Public Law, section 107-110, section 1113(a)(5), 115 STAT, 1469; 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).  The school district accountability groups for each grade level will include all students 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.

          (ii)  School 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 [extend] extent that such entity is the local educational agency for purposes of [title] Title I.

          (iii)  .   .   .

          (iv)  Performance index shall be calculated based on the four student performance levels defined in this subparagraph.  Each student scoring at level 1 will be credited with 0 [zero] points, each student scoring at level 2 with 100 points, and each student scoring at level 3 or 4 with 200 points.  The performance index for each accountability group will be calculated by summing the points and dividing by the number of students in the group.

          (v)  Performance levels shall mean:

          (a)  level 1/basic:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          (ii)  for the 2005-2006 school year and prior school years, a score for certain limited English proficient students pursuant to subparagraph (14)[(vi)] (viii) of this subdivision, in lieu of the State assessment in English language arts, that shows level 1 growth on the New York State English as a Second Language Assessment Test (NYSESLAT);

          (iii)  .   .   .

          (2)  .   .   .

          (b)  level 2/basic proficient:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          (ii)  for the 2005-2006 school year and prior school years, a score for certain limited English proficient students pursuant to subparagraph (14)[(vi)] (viii) of this subdivision, in lieu of the State assessment in English language arts, that shows level 2 growth on the NYSESLAT;

          (2)  .   .   .

          (c)  level 3/proficient:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          (ii)  for the 2005-2006 school year and prior school years, a score for certain limited English proficient students pursuant to subparagraph (14)[(vi)] (viii) of this subdivision, in lieu of the State assessment in English language arts, that shows level 3 growth on the NYSESLAT;

          (2)  .   .   .

          (d)  level 4/advanced:

          (1)  for elementary and middle grades:

          (i)  .   .   .

          [(ii) a score for certain limited English proficient students pursuant to subparagraph (14)(vi) of this subdivision, lieu of the required State assessment in English language arts, that shows level 4 growth on the NYSESLAT;]

          (2)  .   .   .

          (vi)  .   .   .

          (vii)  .   .   .

          (viii)  .   .   .

          (ix)  .   .   .

          (x)  .   .   .

          (xi)  For elementary and middle-level students, participation rate means the percentage of students enrolled on all days of test administration who did not have a significant medical emergency who received valid scores on the State assessments for elementary and middle-level [schools] grades, as set forth in subparagraph (v) of this paragraph.  Beginning with the 2006-2007 school year, a  limited English proficient student enrolled in school in the United States (excluding Puerto Rico) for less than one year as of a date determined by the commissioner and who received a valid score on the NYSESLAT may be counted as participating in an elementary or middle level English language arts assessment.

          (xii)  .   .   .

          (xiii)  .   .   .

          (2)  .   .   .

          (3)  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.

          (4)  .   .   .

          (5)  Adequate yearly progress.  (i)  .   .   .

          (ii)  .   .   .

          (iii)  .   .   .

          (iv)  .   .   .

          (v)  A public school, charter school or school district shall be deemed to have made adequate yearly progress on a performance indicator specified in paragraph (15) of this subdivision if:

          (a)  .   .   .

          (b)  the "all students" accountability group in the school or school district at the applicable grade [level] levels or high school cohort met or exceeded the performance indicator and, for elementary and middle levels, and beginning in 2005-2006 for the elementary-middle level, 80 percent of students enrolled on all days of the science test administration, who did not have a significant medical emergency, received valid scores.

          (vi)  .   .   .

          (vii) The school accountability status of public schools, school districts, and charter schools serving grades 1 and/or 2 [and/or 3], but not grade [4] 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 [4] 3 students from feeder schools by contract, the grade [four] three State assessment results for each feeder school student will be attributed to the feeder school as well as to the school or charter 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 the date prescribed by the commissioner on which the BEDS forms are required to be completed until the end of the school year in the highest grade served by the feeder school.  In a district, if all schools serving grade [four] three make adequate yearly progress in a given year, all feeder schools served by the district will be deemed to have made adequate yearly progress.  If one or more schools enrolling students from a feeder school fail to make adequate yearly progress on a criterion set forth at subparagraphs (14)[(i) and (iii)] (iii) and (vi) of this subdivision, the commissioner will aggregate the district's [fourth-] grade three results on that criterion by feeder school and determine whether each feeder school made adequate yearly progress on that criterion.  If a feeder school fails to make adequate yearly progress on the same criterion for two consecutive years, the school will be identified as a school requiring academic progress.

          (6)  Schools requiring academic progress.  (i)  .   .   .

          (ii)  .   .   .

          (iii)  .   .   .

          (iv)  .   .   .

          (v)  A public school that is identified as a "school requiring academic progress: year 4" that fails to make adequate yearly progress on the same criterion or indicator for which it has been identified as a "school requiring academic progress: year 4" shall be designated in the next school year as a "school requiring academic progress: year 5.”  The school district shall implement its restructuring plan no later than the first day of regular school attendance of the year following the administration of the assessments which caused the school to be identified as a "school requiring academic progress: year 5," or commence implementation to the extent practicable immediately upon an identification if such an identification occurs after the first day of regular student attendance.  If a school fails to make adequate yearly progress for two consecutive years during the three school years following the implementation of the restructuring plan, then a revised restructuring plan in such format as may be prescribed by the commissioner shall be developed by the school superintendent (in New York City, the chancellor's designee) and, to the extent appropriate, consistent with section 100.11 of this Title.  Such restructuring plan shall be formally approved by the board of education (in New York City, both the New York City Board of Education and the community school board for schools under the jurisdiction of the community school district) no later than June 30th of the school year in which such plan is required.

          (vi)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that received funds under title I for two consecutive years during which the school did not make adequate yearly progress shall be identified for school improvement under section 1116(b) of the No Child Left Behind Act (NCLB), 20 U.S.C. section 6316(b)(1)-(3) and is subject to the requirements therein (Public Law, section 107-110, section 1116(b), 115 STAT. 1479 - 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). 

          (vii)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that is identified for school improvement under section 1116(b) of the NCLB, 20 U.S.C section 6316(b) that fails to make adequate yearly progress in any subsequent year in which it receives funds under title I shall be required in the next school year in which it receives title I funds to implement the provisions of section 1116(b)(5) of the NCLB, 20 U.S.C section 6316(b)(5) (Public Law, section 107-110, section 1116 (b)(5), 115 STAT. 1482-1483; 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).

          (viii)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that is subject to the provisions of section 1116(b)(5) of the NCLB, 20 U.S.C section 6316(b)(5) that fails to make adequate yearly progress in any subsequent year in which it receives funds under title I shall be required in the next school year in which it receives title I funds to implement the provisions of section 1116(b)(7) of the NCLB, 20 U.S.C section 6316(b)(7) (Public Law, section 107-110, section 1116 (b)(7), 115 STAT. 1483-1485; 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).

          (ix)  Except as provided in subparagraph (xi) of this paragraph, a [A] public school or charter school that is subject to the provisions of section 1116(b)(7) of the NCLB, 20 U.S.C section 6316(b)(7), that fails to make adequate yearly progress in any subsequent year in which it receives funds under title I shall be required to implement in the next school year in which it receives title I funds the provisions of section 1116(b)(8) of the NCLB, 20 U.S.C section 6316(b)(8) (Public Law, section 107-110, section 1116 (b)(8), 115 STAT. 1485-1486; 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).

          (x)  Upon a finding of [exceptionally] exceptional or uncontrollable circumstances, the commissioner may delay for a period of one year the identification of a public school under this paragraph.

          (xi)  [A school that was required to implement a school improvement plan as of June 30, 2003, pursuant to section this subdivision in effect on that date, shall be deemed a "school requiring academic progress: year 1" for the 2002-03 school year.] Not withstanding any other provision of law, for the 2006-2007 school year, a public school or charter school subject to the provisions of subparagraphs (vi)-(ix) of this paragraph which accountability status is dependent upon the 2005-2006 assessment results for grades 3-8 and which does not receive notice of such status until after the first day of regular school attendance for the 2006-2007 school year shall, immediately upon receipt of such notice, provide written notification to parents of eligible students of the student’s right to school choice pursuant to section 1116(b)(1)(E) of the NCLB, 20 U.S.C section 6316(b)(1)(E),  and supplementary education services (SES) pursuant to section 1116(b)(5)(B) of the NCLB, 20 U.S.C. section 6316(b)(5)(B), as appropriate (Public Law, section 107-110, section 1116 (b)(1)(E), 115 STAT. 1479; Public Law, section 107-110, section 1116(b)(5)(B), 115 STAT. 1482-1483; 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).  The school district or charter school shall implement such school choice and, if required, SES immediately.  Implementation of new/revise improvement/correction action/restructuring plan required under section 1116 of the NCLB must commence to the extent practicable within ninety (90) days of notification of accountability status.

          (xii)  [A public school that was identified as a "school in need of improvement year 1" for the 2002-2003 school year under title I shall be deemed a "school requiring academic progress: year 1" for the 2002-2003 school year.]  For 2005-2006, a public school or charter school will be considered to have not made adequate yearly progress (AYP) for two consecutive years if it failed to make AYP in English language arts (ELA) or, mathematics, or science at grade 4 and/or grade 8 in 2004-2005 and fails to make AYP at the elementary-middle level (grades 3-8) in 2005-2006 in the same subject(s).

          (xiii)  [A public school that was identified as a "school in need of improvement year 2" for the 2002-2003 school year under title I shall be deemed a "school requiring academic progress: year 2" for the 2002-2003 school year.]  A school in need of improvement at the grade 4 or 8 level in 2005-2006 will be in need of improvement in 2006-2007 at the elementary-middle level unless it made AYP in the subject and grade level for which it was identified in 2004-2005 and also makes AYP in that subject at the elementary-middle level in 2005-2006.

          (xiv)  [A public school that was identified as a "school in corrective action" for the 2002-2003 school year shall be deemed a "school requiring academic progress: year 3" for the 2002-2003 school year.

          (xv)]  A public school requiring academic progress that makes adequate yearly progress for two consecutive years on all criteria and indicators for which it has been identified shall be removed from school requiring academic progress status.

          [(xvi)] (xv)  A public school or charter school that makes adequate yearly progress for two consecutive years on all criteria and indicators for which it has been identified shall no longer be subject to the requirements of section 1116(b) of the NCLB, 20 U.S.C. section 6316(b) (Public Law, section 107-110, section 1116(b), 115 STAT. 1479-1487; 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).

          [(xvii)] (xvi)  Based upon review of a public school's performance since its identification as requiring academic progress, the commissioner may require, in such form and according to such timeline as the commissioner may prescribe, that the district submit for the commissioner's approval a school improvement, corrective action or restructuring plan.  The commissioner may also require that any subsequent modification of such plan be submitted for prior approval.

          (7)  Districts requiring academic progress.  (i)  Commencing with 2003-2004 school year results, a district that failed to make adequate yearly progress on all applicable criteria in paragraph (14) of this subdivision in a subject area, or all applicable indicators in subparagraphs (15)(i) [and (ii)] through (iii) of this subdivision, or the indicator in subparagraph (15)[(iii)](iv) of this subdivision, for two consecutive years shall be designated as a "district requiring academic progress."  A district improvement plan in such format as may be prescribed by the commissioner shall be developed by each district requiring academic progress.  Such district improvement plan shall be formally approved by the board of education (in New York City, both the New York City Board of Education and the community school board for schools under the jurisdiction of the community school district) no later than three months following the identification of the district as requiring academic progress and submitted to the commissioner for approval.  The plan shall be implemented no later than beginning of the next school year after the school year in which the school district was identified as requiring academic progress or immediately, to the extent practicable, upon approval of the board, if such identification occurs after the first day of regular student attendance.  Such plan shall be developed in consultation with parents, school, staff, and others.  The plan shall be revised annually and resubmitted to the commissioner for approval no later than July 31st of each school year in which the district remains identified as requiring academic progress. Any modification of the district's approved improvement plan shall require the prior approval of the commissioner.

          (ii)  Commencing with 2003-2004 school year results:

          (a)  a district identified as requiring academic progress for failing to make adequate yearly progress on all applicable criterion in paragraph (14) of this subdivision in a subject area shall be removed from such status if it makes adequate yearly progress for two consecutive years on any criterion in the subject area for which it is identified;

          (b)  a district identified as requiring academic progress for failing to make adequate yearly progress on [both] every applicable indicator[s] set forth at subparagraphs (15)(i) [and (ii)] through (iii) of this subdivision shall be removed from such status if it makes adequate yearly progress for two consecutive years on [either of such] any applicable indicators; and

          (c)  a district identified as requiring academic progress for failing to make adequate yearly progress on the indicator set forth at subparagraph (15)[(iii)](iv) of this subdivision shall be removed from such status if it makes adequate yearly progress for two consecutive years on such indicator; provided that for a district requiring academic progress that is removed from such status based on 2002-2003 and 2003-2004 results, such district shall have made adequate yearly progress in 2002-2003 on each criterion or indicator for which it was identified.

          (iii)   Except as provided in subparagraph (vi) of this paragraph, [A] a local educational agency (LEA) that received funds under [title] Title I for two consecutive years during which the LEA did not make adequate yearly progress on all applicable criteria in paragraph (14) of this subdivision in a subject area, or all applicable indicators in subparagraphs (15)(i) [and (ii)] through (iii) of this subdivision, or the indicator in subparagraph (15)[(iii)] (iv) of this subdivision, shall be identified for improvement under section 1116(c) of the NCLB, 20 U.S.C. section 6316(c) and shall be subject to the requirements therein (Public Law, section 107-110, section 1116(c), 115 STAT. 1487-1491; 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).

          (iv)  Except as provided in subparagraph (vi) of this paragraph, [At] at any time following the identification of an LEA for improvement, the commissioner may further identify the local educational agency for corrective action under section 1116(c)(10) of the NCLB, 20 U.S.C. section 6316(c)(10).  The commissioner shall identify such LEA for corrective action if, by the end of the second full school year the LEA has failed to make adequate yearly progress.  The commissioner may delay identification of an LEA for corrective action for a period of one year pursuant to section 1116(c)(10)(F) of the NCLB, 20 U.S.C. section 6316(c)(10)(F) (Public Law, section 107-110,section 1116(c)(10), 115 STAT. 1489-1491; 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).

          (v)  .   .   .

          (vi) Not withstanding any other provision of law, an LEA subject to the provisions of subparagraphs (iii) and (iv) of this paragraph which accountability status is dependent upon the 2005-2006 assessment results for grades 3-8 and which does not receive notice of such status until after the first day of regular attendance for the 2006-2007 school year, shall immediately commence implementation, to the extent practicable, of any plan required to be implemented pursuant to section 1116(c) of the NCLB.

          (8)  High performing and rapidly improving schools and districts.  (i)  Commencing with 2003-2004 school year results, the commissioner shall annually identify as "high performing" public schools, school districts, and charter schools in which:

          (a)  the school or district meets or exceeds the benchmarks established by the commissioner pursuant to subparagraph (14)[(vii)] (ix) of this subdivision; and

          (b)  the school or district has made adequate yearly progress on all applicable criteria and indicators in paragraphs (14) and (15) of this subdivision for two consecutive years.

          (ii)  Commencing with 2004-2005 school year results, the commissioner shall annually identify as "rapidly improving" public schools, school districts, and charter schools in which:

          (a)  the school or district is below the benchmark established by the commissioner pursuant to subparagraph (14)[(vii)] (ix) of this subdivision;

          (b)  the school or district has improved its performance by an amount determined by the commissioner during the past three years on each applicable criterion in paragraph (14) of this subdivision in which it is below the benchmark established by the commissioner; and

          (c)  the school or district has made adequate yearly progress on all applicable criteria and indicators in paragraphs (14) and (15) of this subdivision for three consecutive years.

          (iii)  .   .   .

          (9)  Identification of schools for public school registration review.  The commissioner shall place under registration review those schools that are determined to be farthest from meeting the benchmarks established by the commissioner pursuant to subparagraph (14)[(vii)] (ix) of this subdivision and most in need of improvement.  In determining the number of schools to identify as farthest from meeting the benchmarks, the commissioner shall give primary consideration to the percentages of students meeting performance benchmarks.  The commissioner may also consider the sufficiency of State and local resources to effectively implement and monitor school improvement efforts in schools under registration review.  In addition, any school that does not meet or exceed each of the benchmarks and 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 may be 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, 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.  The commissioner may also place under registration review any school for which a 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.

          (i)  .   .   .

          (ii)  The commissioner shall review the additional information provided by the district and determine which of the schools identified as farthest from meeting the benchmarks specified in subparagraph (14)[(vii)] (ix) of this subdivision or identified as poor learning environments are most in need of improvement and shall be placed under registration review.

          (iii)  .   .   .

          (10)  .   .   .

          (11)  .   .   .

          (12)  .   .   .

          (13)  .   .   .                            

          (14)  Public school, school district and charter school accountability performance criteria. [Commencing with the 2002-03 school year, each] Each district and school accountability group, as defined in subparagraph (1)(i) of this subdivision shall be subject to the performance criteria specified below:

          (i)  Elementary level English language arts.  Annual measurable objectives, based on a performance index, set at 123 in 2002-03 and 2003-04 and 131 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          (ii)  Middle level English language arts.  Annual measurable objectives, based on a performance index, set at 107 in 2002-03 and 2003-04 and 116 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          (iii)  Elementary-middle level English language arts.  Annual measurable objectives, based on a performance index, set by the commissioner in 2005-2006 and, beginning in 2008-2009, increasing annually in equal increments so as to reach 200 in 2013-2014.

          [(iii)] (iv)  Elementary level mathematics.  Annual measurable objectives, based on a performance index, set at 136 in 2002-03 and 2003-04 and 142 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          [(iv)] (v) Middle level mathematics.  Annual measurable objectives, based on a performance index, set at 81 in 2002-03 and 2003-04 and 93 in 2004-2005 [and increasing annually in equal increments so as to reach 200 in 2013-2014].

          [(v)  High school English language arts and mathematics requirements.  Annual measurable objectives, based on the performance index of the high school cohort defined in paragraph (16) of this subdivision, set at 142 in English language arts and 132 in mathematics in 2002-03 and 2003-04, and incremented annually thereafter as necessary so that in 2013-2014 the index shall be 200.]

          (vi) Elementary-middle level mathematics.  Annual measurable objectives, based on a performance index, set by the commissioner in 2005-2006 and, beginning in 2008-2009, increasing annually in equal increments so as to reach 200 in 2013-2014.

 [Beginning with the 2002-03 school year test administrations, for purposes of the commissioner's annual evaluation of public schools, public school districts, and charter schools, the following limited English proficient students in grades 4 and 8 may be considered to be meeting performance criteria in English language arts if they demonstrate a specified increment of progress on the New York State English as a Second Language Achievement Test for their grade level.  For limited English proficient students in grades 4 and 8 who have attended school in the United States (not including Puerto Rico) for fewer than three consecutive years, districts and charter schools may administer the NYSESLAT to such students in lieu of the required State assessment in English language arts.  Districts or charter schools may, on an individual basis, annually determine to administer the NYSESLAT in lieu of the required assessment in English language arts to limited English proficient students who have attended school in the United States (not including Puerto Rico) for four or five consecutive school years.  No exemption is available beyond the student's fifth year and the student must take the required fourth or eighth grade English language arts assessment.]

          (vii)  High school English language arts and mathematics requirements.  Annual measurable objectives, based on the performance index of the high school cohort defined in paragraph (16) of this subdivision, set at 142 in English language arts and 132 in mathematics in 2002-03 and 2003-04, and incremented annually thereafter as necessary so that in 2013-2014 the index shall be 200.

          (viii) For the 2002-2003 through the 2005-2006 school year test administrations, for purposes of the commissioner's annual evaluation of public schools, public school districts, and charter schools, the following limited English proficient students may be considered to be meeting performance criteria in elementary or middle-level English language arts if they demonstrate a specified increment of progress on the New York State English as a Second Language Achievement Test (NYSESLAT) for their grade level.  For limited English proficient students who have attended school in the United States (not including Puerto Rico) for fewer than three consecutive years, districts and charter schools may administer the NYSESLAT to such students in lieu of the required State assessment in English language arts.  Districts or charter schools may, on an individual basis, annually determine to administer the NYSESLAT in lieu of the required assessment in English language arts to limited English proficient students who have attended school in the United States (not including Puerto Rico) for four or five consecutive school years.  No exemption is available beyond the student's fifth year and the student must take the required English language arts assessment.

          [(vii)] (ix)  For each criterion (subparagraphs (i) through [(v)] (vii) of this paragraph), the commissioner shall also establish a benchmark against which the performance of the accountability group, all students, defined in subparagraph (1)(i) of this subdivision, will be measured.  This benchmark will be used in recognizing high-performing schools and districts, determining which school districts are required to develop local assistance plans as described in paragraph (m)(6) of this section and for identifying those schools that are subject to registration review pursuant to paragraph (9) of this subdivision.

          (15)  Additional public school, school district, and charter school accountability indicators.

          (i)  Elementary science indicator:  For the 2002-2003 through 2004-2005 school years,

          (a) an index of 100 that may be incremented annually, as the commissioner deems appropriate, or progress in relation to performance in the previous school year; and

          (b)  beginning in 2004-05, 80 percent of students enrolled on all days of the test administration, who did not have a significant medical emergency, received valid scores.

          (ii)  Middle-level science indicator:  For the 2002-2003 through 2004-2005 school years,

          (a)  an index of 100 that may be incremented annually, as the commissioner deems appropriate, or progress in relation to performance in the previous year; and

          (b)  beginning in 2004-05, 80 percent of students enrolled on all days of the test administration, who did not have a significant medical emergency, received valid scores.

          (iii) Elementary-middle science combined indicator:  For the 2005-2006 school year and thereafter:

          (a)  an index of 100 that may be incremented annually, as the commissioner deems appropriate, or progress in relation to performance in the previous year; and

          (b)  80 percent of students enrolled on all days of the test administration, who did not have a significant medical emergency, received valid scores.

          [(iii)] (iv)  A high school graduation rate established annually by the commissioner, or progress in relation to the previous school year's graduation rate.  The graduation rate is the percentage of the annual graduation rate cohort that earns a local [diploma (with or without a Regents endorsement)] or Regents diploma by August 31st following the third school year after the school year in which the cohort first entered [of the fourth calendar year after first entering] grade 9, except that in a school in which the majority of students participate in a department-approved, five-year program that results in certification in a career or technology field in addition to a high school diploma, the graduation rate shall be the percentage of the annual graduation rate cohort that earns a local diploma by August 31st  following the fourth school year after the school year in which the cohort first entered [of the fifth calendar year after first entering] grade 9.

          (16)  Annual high school or high school alternative cohort.  (i)   Beginning in the 2005-2006 school year, except [Except] as provided in clauses (a) and (b) of this subparagraph, the annual high school cohort for purposes of determining adequate yearly progress on the criteria set forth at subparagraph (14)[(vi)] (vii) of this subdivision and identifying schools for registration review pursuant to paragraph (9) of this subdivision for any given school year shall consist of those students who first enrolled in ninth grade three school years previously anywhere and who were enrolled in the school on the first Wednesday in October of the [previous] current school year. The annual district high school cohort for purposes of determining such adequate yearly progress for any given school year shall consist of those students who first enrolled in ninth grade three school years previously anywhere and who were enrolled in the district or placed by the district committee on special education or by district officials in educational programs outside the district on the first Wednesday in October of the [previous] current school year.  Students with disabilities in ungraded programs shall be included in the annual district and high school cohort in the [fourth] third school year following the one in which they attained the age of [16] 17. 

          (a)  .   .   .

          (b)  .   .   .

          (ii) (a)  For purposes of determining adequate yearly progress on the indicator set forth at subparagraph (15)[(iii)] (iv) of this subdivision, the graduation rate cohort for each public school, school district, and charter school for each school year from 2002-03 [until 2005-06] through 2006-2007 shall consist of all members of the school or district high school cohort, as defined in subparagraph (i) of this paragraph, for the previous school year plus any students excluded from that cohort solely because they transferred to an approved alternative high school equivalency or high school equivalency preparation program.

          (b) Commencing with the 2007-08 school year, for purposes of determining adequate yearly progress on the indicator set forth at subparagraph (15)(iv) of this subdivision:

          (1)  the graduation rate cohort for each public school and charter school shall consist of those students who first enrolled in grade 9 anywhere three school years previously or, if an ungraded student with a disability, first attained the age of 17 three school years previously, and who have spent at least five consecutive months, not including July and August, in the school since first entering grade 9 and whose last enrollment_ in the school did not end because of transfer to another school, death, court-ordered transfer, or leaving the United States.

          (2)  the graduation rate cohort for each public school district shall consist of those students who first enrolled in grade 9 anywhere three school years previously or, if an ungraded student with a disability, first attained the age of 17 three school years previously , and who have spent at least five consecutive months, not including July and August, in the district since first entering grade 9 and whose last enrollment in the district did not end because of transfer to another district, death, court-ordered transfer, or leaving the United States.

          (iii)  .   .   .

          (17)  .   .   .

          (18)  .   .   .

          (19)  .   .   .