Meeting of the Board of Regents | March 2008

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

 

TO:
FROM:	Johanna Duncan-Poitier
SUBJECT:	Seventh Emergency Adoption of the Proposed Amendments to the Regulations of the Commissioner Relating to Contracts for Excellence
DATE:	March 5, 2008
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

 

 

SUMMARY

 

 

Issue for Decision

 

Should the Board of Regents adopt as a seventh emergency action the proposed revisions to section 100.13 and section 170.12 of the Regulations of the Commissioner relating to Contracts for Excellence?

 

Reason(s) for Consideration

 

Required by State statute.

Proposed Handling

 

This proposed amendment will come before the EMSC Committee and the Board of Regents at the March Regents meeting for adoption as a seventh emergency action, effective March 22, 2008, to ensure that the previously adopted emergency rule remains continuously in effect until it can be adopted and made effective as a permanent rule.

Revisions, based on the Department’s experience with the implementation of the Contracts for Excellence and comments from members of the Board of Regents, school districts and other interested parties, were discussed with the Regents in February and are incorporated into the proposed March emergency adoption.  A Notice of Revised Rule Making, reflecting these revisions, was published in the State Register on March 5, 2008.  These proposed changes will require deferral of the permanent adoption of the proposed amendment until after expiration of the 30-day public comment period specified in the State Administrative Procedure Act.  A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached

 

Procedural History

 

              The proposed amendment was adopted at the April 23-24, 2007 Regents meeting as an emergency measure, effective April 27, 2007.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 16, 2007.

 

              At their June 25-26, 2007 meeting, the Board of Regents revised the proposed rule, and adopted the revised rule by emergency action, effective July 26, 2007.  A Notice of Emergency Adoption and Revised Rule Making was published in the August 8, 2007 State Register.

 

              At their July 25, 2007 meeting, the Board of Regents further revised the proposed rule in response to public comment and adopted the revised rule as an emergency action, effective July 31, 2007.  A second Notice of Emergency Adoption and Revised Rule Making was published in the August 15, 2007 State Register.

             

              At their September 10, 2007, October 23, 2007 and January 14-15, 2008 meetings, the Board of Regents readopted the July emergency rule to ensure that the emergency rule remains in effect until the effective date of its adoption as a permanent rule. 

              The January emergency rule will expire on March 21, 2008, and another emergency action will be necessary at the March Regents meeting to keep the regulations in effect until they can be adopted on a permanent basis.

 

Background Information

 

Chapter 57 of the Laws of 2007 authorized the Commissioner of Education to establish allowable programs and activities, criteria for public reporting by school districts of their total Foundation Aid expenditures and other requirements for the preparation of Contracts for Excellence by certain specified school districts.   In April 2007, the Board of Regents adopted the original Contract for Excellence regulations by emergency action.  Those regulations were revised based on public comment and readopted by emergency action in June and July 2007 and have been readopted by emergency action since that time as the Department continued to meet with the field and receive additional comments and suggestions for the permanent regulations.

 

              At the February 2007 meeting of the Board of Regents, proposed revisions to the regulations, based on comments received by the Department and our experience in implementing the Contracts for Excellence were discussed at the Regents EMSC Committee meeting.  Those revisions have now been incorporated into the regulations that are before the Regents for emergency action this month.  Those revisions include:

 

• Adding “students with low academic achievement” to the specified list of student groups included within “students with the greatest educational needs.”

 

• Clarifying requirements for the use of contract for excellence funds, as follows:

 

• For school districts in cities with a population of one hundred twenty-five thousand or more, at least 75 percent of the contract amount shall be distributed to benefit students having the greatest educational needs who are enrolled in the top half of schools within the district ranked in order of relative incidence of poverty, disability, limited English proficiency and low school performance.

 

• For all other school districts, at least 75 percent of the contract amount shall be distributed to benefit students having the greatest educational needs enrolled in schools requiring academic progress, or in need of improvement, or in corrective action, or in restructuring.

 

• Provision is also made: (a) that schools in improvement status will receive at least their pro rata share of contract funds based on their share of total district need; and (b) that the Commissioner may waive the above requirements upon a showing of good cause.

 

• Specifying requirements relating to the conduct of the public process for the development of contracts for excellence, including establishing a 30-day public comment period, public hearing notice and procedural requirements, and requirements that school district prepare and make available on request a public comment record and assessment.

 

• Specifying requirements relating to the process for bringing complaints regarding contracts for excellence, including requirements for the complaint form, notice of complaint procedures and complaint commencement investigation, resolution and appeals.

 

Staff has begun soliciting comments on these proposed revised regulations. Meetings have been held with educational advocates and representatives from school boards and school administrators. The revised regulations were also discussed with approximately 55 representatives of C4E districts at the Department on Friday February 29, 2008.   Regent Joseph Bowman participated in this meeting to discuss fiscal issues relating to Contracts for Excellence and thanked districts for their efforts and assistance. 

 

Concerns raised by districts during these meetings and conversations include:

 

• flexibility in funding C4E programs,
• the importance of allowing districts to stop being C4E districts if their performance is in good standing, and
• what will happen if districts don't spend all of their C4E money by the end of the fiscal year.

 

Examples were discussed to illustrate the challenges some C4E districts have in continuing to provide new or expanded programs each year while facing high tax rates and limited local resources. Additional meetings have been scheduled with C4E districts to assist districts in incorporating C4E programs into their 2008-09 school budgets. 

 

Based upon the discussions held to date, it is anticipated that some additional changes to the revised regulation before the Regents for emergency action this month (and published in the March 5, 2008 State Register) may be necessary.  If additional changes to the regulations are needed, those proposed revisions will be discussed at the May Regents meeting and could be presented for adoption as a permanent rule at the June 2008 Regents meeting.  If no additional revisions to the regulation are needed, the Regents could adopt the regulations before them this month as a permanent rule at the May 2008 Regents meeting. 

 

The Department is also recommending some possible statutory changes to address suggestions from members of the Board of Regents, suggestions from the field  and our own analysis of related issues including which districts should be designated as Contract for Excellence districts, elimination of the charter school deduction, clarifying that C4E funds can be used to pay for the increased costs of programs implemented in prior years, and  defining the full term for being a C4E district to be three years rather than one.   A three-year time frame will also allow proper evaluation of C4E programs after students have had sufficient time to benefit from them.  Changes in the statute made in the final 2008-09 State Budget will likely result in the need for additional changes in the regulations by the Regents. 

Recommendation

 

Staff recommend that the Regents take the following action:

 

              VOTED:  That section 100.13 of the Regulations of the Commissioner of Education be added and that paragraph (1) of subdivision (e) of section 170.12  of the Commissioner’s Regulations be amended, as submitted, effective March 22, 2008, 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 adopt revisions to the rule in response to discussions held with educational advocates and representatives from school boards and school administrators and the Department’s experience in implementing the Contracts for Excellence and to otherwise ensure that the emergency rule that was adopted at the April 2007 Regents meeting, revised and readopted at the June and July 2007 Regents meetings, and readopted at the September and October 2007 and January 2008 Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule.

 

Timetable for Implementation

 

The proposed amendment was adopted as an emergency measure at the April Regents meeting, effective April 27, 2007, revised and readopted as an emergency rule at the June and July 2007 Regents meetings, and readopted as an emergency action at the September and October 2007 and January 2008 Regents meetings.  The January emergency rule will expire on March 21, 2008.  The March seventh emergency adoption will become effective on March 22, 2008.  It is anticipated that the proposed amendment will be presented for adoption as a permanent rule either at the May 2008 meeting (if no additional revisions are needed) with a June 12, 2008 effective date, or, if additional revisions are needed, at the June 2008 Regents meeting, with a July 17, 2008 effective date.

 

 

 

 

 

• Attachment
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• PROPOSED ADDITION OF SECTION 100.13 AND AMENDMENT OF SECTION 170.12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 305 AND 211-d AND CHAPTER 57 OF THE LAWS OF 2007, RELATING TO CONTRACTS FOR EXCELLENCE
• STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ADOPTION
•               The proposed amendment is necessary to implement Education Law section 211-d, as added by Chapter 57 of the Laws of 2007, to establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures and other requirements for purposes of preparation of contracts for excellence by certain specified school districts. 
•               Education Law section 211-d requires each school district: (1) that has at least one school currently identified as (i) requiring academic progress or (ii) in need of improvement or (iii) in corrective action or (iv) in restructuring; and (2) that receives an increase in either (i) total foundation aid compared to the base year in an amount that equals or exceeds either $15 million dollars or 10 percent of the amount received in the base year, whichever is less, or (ii) a supplemental educational improvement plan grant, to prepare a contract for excellence, which shall describe how the total foundation aid and supplemental educational improvement plan grants shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement.  The statute requires the Commissioner to establish by regulation the allowable programs and activities for such purposes.  The statute also requires the Commissioner to prescribe a format by which each affected school district shall publicly report its expenditures of total foundation aid.
•               The proposed amendment was adopted at the April 23-24, 2007 Regents meeting as an emergency measure, effective April 27, 2007, in order to immediately establish allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for contracts for excellence under Education Law section 211-d, so that affected school districts may timely prepare such contracts for the 2007-2008 school year pursuant to statutory requirements.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on May 16, 2007. 
•               At their June 25-26, 2007 meeting, the Regents substantially revised the proposed rule, and adopted the revised rule by emergency action, effective July 26, 2007.  A Notice of Emergency Adoption and Revised Rule Making was published in the August 8, 2007 State Register.
•               At their July 25, 2007 meeting, the Board of Regents further revised the proposed rule in response to public comment and adopted the revised rule as an emergency action, effective July 31, 2007.  A Notice of Emergency Adoption and Revised Rule Making was published in the August 15, 2007 State Register.
•               At their September 10, 2007 meeting, and again at their October 23, 2007 and January 14-15, 2008 meetings, the Board of Regents readopted the July emergency rule to ensure that the emergency rule remains in effect until the effective date of its adoption as a permanent rule.  The January emergency rule will expire on March 21, 2008.
•               Further substantial revisions to the proposed amendment have been made, in response to the Department's experience with the implementation of the Contracts for Excellence and discussions held with educational advocates and representatives from school boards and school administrators.  These revisions include clarifying requirements for the use of contract of excellence funds, the conduct of the public process for development of contracts for excellence; and the process for bringing complaints regarding implementation of the contracts.  A Notice of Revised Rule Making, reflecting these revisions, was published in the State Register on March 5, 2008. 
•               Pursuant to the State Administrative Procedure Act section 202(4-a), the revised rule cannot be adopted by regular (non-emergency) action until at least 30 days after the March 5, 2008 publication of the revised rule in the State Register.  Since the Board of Regents meets at fixed intervals,  the earliest the proposed amendment can be adopted by regular action, after expiration of the 30-day public comment period for a revised rule making, is the April 14-15, 2008 Regents meeting.  However, the January emergency adoption will expire on March 21, 2008, 60 days after its filing with the Department of State on January 22, 2007.  A lapse in the rule's effectiveness wo
  uld disrupt implementation of the contract for excellence program under Education Law section 211-d. 
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  A seventh emergency adoption is therefore necessary for the preservation of the general welfare to immediately adopt revisions to the rule to clarify requirements for the use of contract of excellence funds, the public process for development of contracts, and the process for bringing complaints regarding contracts, and to otherwise ensure that the emergency rule that was adopted at the April 2007 Regents meeting, revised and readopted at the June and July Regents meetings, and readopted at the September and October  and January 2008 Regents meetings, remains continuously in effect until the effective date of its adoption as a permanent rule.
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• AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
•               Pursuant to Education Law sections 101, 207, 215, 305, 309 and 211-d, as added by Chapter 57 of the Laws of 2007
•               1.  Section 100.13 of the Regulations of the Commissioner of Education is added, effective March 22, 2008, as follows:
• 
  100.13  Contract
  
  
  for Excellence.
  
•               (a)  Definitions.  As used in this section:
•               (1)  "Total foundation aid" means such aid as defined in Education Law section 3602(4).
•               (2)  "Supplemental educational improvement plan grant" means such grants as defined in Education Law section 3641(8).
•               (3)  "Contract amount" means the sum of the amounts apportioned to the school district in the current year as total foundation aid and as supplemental educational improvement plan grants for the 2007-2008 school year and thereafter, in excess of the percentage of the school district's foundation aid base, as prescribed and adjusted in Education Law section 211-d(2)(a).
•               (4)  "Base year" shall be as defined in Education Law section 3602(1)(b).
•               (5)  "Experimental programs" are programs, not included in the allowable programs and activities under subparagraphs (i) through (v) of paragraph (2) of subdivision (d) of this section, that are designed to demonstrate the efficacy of other strategies to improve student achievement, and for which the commissioner may authorize a school district to spend up to 15 percent of the contract amount.
•               (6)  "Highly qualified teacher" means a teacher who meets the requirements set forth in section 120.6 of this Title.
•               (7)  "Response to intervention program" means a program as defined in section 100.2(ii) of this Title.
•               (8)  "Students with low academic achievement" means students who:
•               (i) are not performing at least at a Level 3 score on the following accountability measures:
•               (a)  elementary/middle level English language arts;
•               (b)  elementary/middle level math;
•               (c)  secondary level English language arts; and
•               (d)  secondary level math;
• 
  and/or
  
•               (ii)  did not graduate within four years of first entry into the ninth grade, as determined for the latest available school year.  
•               (b)  Applicability. 
•               (1)  A contract for excellence shall be prepared pursuant to the provisions of this section by each school district:
•               (i)  that has at least one school currently identified pursuant to section 100.2(p) of this Part as:
•               (a)  requiring academic progress; or
•               (b) in need of improvement; or
•               (c) in corrective action; or
•               (d) in restructuring; and
•               (ii)  that receives:
•               (a)  an increase in total foundation aid compared to the base year in an amount that equals or exceeds either fifteen million dollars or ten percent of the amount received in the base year, whichever is less; or
•               (b)  a supplemental educational improvement plan grant.
•               (2)  For the 2007-2008 school year, such increase in total foundation aid shall be the amount of the difference between total foundation aid received for the current year and the total foundation aid base as defined in Education Law section 3602(1)(j).
•               (3)  In the city school district of the city of New York, a contract for excellence shall be prepared for the city school district and each community district that meets the criteria set forth in paragraph (1) of this subdivision. 
•               (c)  Contract requirements. 
•               (1)  Each contract for excellence shall be in a format, and submitted pursuant to a timeline, as prescribed by the commissioner and shall:
•               (i) describe how the contract amount shall be used to support new programs and new activities or expand the use of programs and activities demonstrated to improve student achievement, from the allowable programs and activities and/or authorized experimental programs pursuant to subdivision (d) of this section; 
•               (ii) specify the new or expanded programs, from the allowable programs and activities and/or authorized experimental programs pursuant to subdivision (d) of this section, for which each sub-allocation of the contract amount shall be used and affirm that such programs shall predominately benefit students with the greatest educational needs including, but not limited to:
•               (a)  limited English proficient students and students who are English language learners;
•               (b)  students in poverty; 
•               (c) students with disabilities; and
•               (d)  students with low academic achievement.
•               (iii)  specify how the school district's contract amount will be distributed in accordance with the provisions of paragraph (3) of this subdivision. 
•               (iv)  state, for all funding sources, whether federal, state or local, the instructional expenditures per pupil, the special education expenditures per pupil, and the total expenditures per pupil, projected for the current year and estimated for the base year; provided that no later than February 1 of the current school year, the school district shall submit a revised contract stating such expenditures actually incurred in the base year;     
•               (v)  include any programmatic data projected for the current year and estimated for the base year, as the commissioner may require; and
•               (vi)  in the city school district of the city of New York, include a plan that meets the requirements of clause (a) of subparagraph (i) of paragraph (2) of subdivision (d) of this section, to reduce average class sizes within five years for the following grade ranges:
•               (a) prekindergarten through grade three;
•               (b) grades four through eight; and 
•               (c) grades nine through twelve.
• 
  Such plan shall be aligned with the capital plan of the city school district of the city of New York and include continuous class size reduction for low performing and overcrowded schools beginning in the 2007-2008 school year and thereafter and also include the methods to be used to achieve proposed class sizes, such as the creation or construction of more classrooms and school buildings, the placement of more than one teacher in a classroom or methods to otherwise reduce the student to teacher ratio.  Beginning in the 2008-2009 school year and thereafter, such plan shall provide for reductions in class size that, by the end of the 2011-2012 school year, will not exceed the prekindergarten through grade 12 class size targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research.  Notwithstanding, any rule or regulation of this Title to the contrary, the sole and exclusive remedy for a violation of the requirements of Education Law section 211-d(2)(b)(ii) shall be pursuant to a petition to the commissioner under Education Law section 310(7), and the decision of the commissioner on such petition shall be final and unreviewable. 
  
•               (2)  Approval and certification.  The commissioner shall approve each contract meeting the provisions of this subdivision and shall certify, for each contract, that the expenditure of additional aid or grant amounts is in accordance with Education Law section 211-d(2).  Approval shall be given to contracts demonstrating to the satisfaction of the commissioner that the allowable programs and activities selected by the district pursuant to the requirements of subdivision (d) of this section:
•               (i)  predominately benefit  those students with the greatest educational needs, including but not limited to:
•               (a)  students with limited English proficiency and students who are English language learners;
•               (b)  students in poverty;
•               (c)  students with disabilities; and
•               (d)  students with low academic achievement;
•               (ii)  predominately benefit those students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools; and
•               (iii)  are based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards.
•              (3)  Use of Contract Amount. 
•               (i)  Definitions.  For purposes of this paragraph:
•              
  
  (a)  "Low school performance" means, for a given school within the school district, the percentage, as measured with respect to the school's total student enrollment, of students with low academic achievement enrolled in such school. 
  
•               (b)  "Total district need" means a school district's total sum of enrollment-weighted shares of:
•               (1)  students with limited English proficiency or English language learners
•               (2)  students in poverty;
•               (3)  students with disabilities; and
•               (4)  students with low academic achievement.
•               (ii)  Except as provided in subparagraph (iii) of this paragraph, each school district required to prepare a contract for excellence pursuant to subdivision (b) of this section shall distribute the contract amount it receives in accordance with the following:
•               (a)  For school districts in cities with a population of one hundred twenty-five thousand or more, at least 75 percent of the contract amount shall be distributed to benefit students having the greatest educational needs who are enrolled in the top 50 percent of schools within the district ranked in order of greatest to least relative incidence, as measured against total school enrollment, of poverty, disability, limited English proficiency and low school performance; provided that all schools within the district that are in improvement status shall receive at least their pro rata share of contract funds based on their share of total district need.
• 
               
  
  
  (b)  For all other school districts, at least 75 percent of the contract amount shall be distributed to benefit students having the greatest educational needs enrolled in schools requiring academic progress, or in need of improvement, or in corrective action, or in restructuring; provided that all schools in improvement status shall receive at least their pro rata share of contract funds based on their share of total district need.
  
• 
               
  
  
  (iii)  The commissioner may approve a school district's distribution of its contract amount in a different manner than that specified in subparagraph (ii) of this paragraph upon a showing of good cause including, but not limited to, distribution of the contract amount to predominately benefit students having the greatest educational needs who are enrolled in schools under registration review.
  
•               (4)  Amendment of contract.  A contract for excellence that is approved by the commissioner pursuant to paragraph (2) of this subdivision may not be subsequently amended unless the amended contract is approved by the commissioner upon a showing of good cause by the district, including, but not limited to, a showing that the contract is based upon an error or errors of material fact or that there has been a change in circumstances, including, but not limited to, a change in the district's fiscal, staffing or other resources, that materially affects the district's ability to carry out the terms of the contract.  Applications for approval to amend a contract shall be in a format, and submitted pursuant to a timeline, as prescribed by the commissioner. 
•               (d)  Allowable programs and activities. 
•               (1)  General requirements. 
•               (i)  Allowable programs and activities shall:
•               (a)  predominately benefit students with the greatest educational needs including, but not limited to:
•               (1)  students with limited English proficiency and students who are English language learners;
•               (2)  students in poverty; 
•               (3)  students with disabilities; and
•               (4) students with low academic achievement.
•               (b) predominately benefit those students in schools identified as requiring academic progress, or in need of improvement, or in corrective action, or restructuring and address the most serious academic problems in those schools;
•               (c)  be based on practices supported by research or other comparable evidence in order to facilitate student attainment of State learning standards;
•               (d) be consistent with federal and State statutes and regulations governing the education of such students;
•               (e) where applicable, be accompanied by high quality, sustained professional development focused on content pedagogy, curriculum development, and/or instructional design in order to ensure successful implementation of each program and activity;
•               (f)  ensure that expenditures of the contract amount shall be used to supplement and not supplant funds expended by the district in the base year for such purposes; 
•               (g)  ensure that all additional instruction is provided by appropriately certified teachers or highly qualified teachers where required by section 120.6 of this Title, emphasizing skills and knowledge needed to facilitate student attainment of State learning standards; and
•               (h)  be coordinated with all other allowable programs and activities included in the district's contract for excellence as part of the district's comprehensive educational plan.
•               (ii)  Nothing in this section shall be deemed to preclude a school district from selecting an allowable program and activity involving the use of instructional technology, provided that such program meets the applicable requirements of this subdivision and is approved by the commissioner pursuant to paragraph (2) of subdivision (c) of this section.  
•               (2)  Specific program requirements.  Allowable programs and activities shall be limited to:
•               (i)  Class size reduction, pursuant to the following:
•               (a)  Allowable programs and activities related to class size reduction in the city school district of the city of New York shall include:
•               (1)  creation or construction of more classrooms and/or school buildings to facilitate student attainment of State learning standards pursuant to the following requirements:
•               (i)  priority shall be given to prekindergarten through grade 12 students in overcrowded schools particularly those requiring academic progress, schools in need of improvement, schools in corrective action, and schools in restructuring status;
•               (ii) for the 2007-2008 school year, the city school district of the city of New York shall provide baseline data for the 2006-2007 school year stating for each grade level targeted:
•               (A)  the number of classes;
•               (B)  the average class size; and
•               (C) the number of classroom teachers;
•               (iii)  for the 2007-2008 school year, the city school district of the city of New York shall establish class size reduction goals for each grade level targeted and upon conclusion of such school year, shall report, in a format and pursuant to a timeline prescribed by the commissioner, measurable progress toward meeting such goals;
•               (iv)  beginning in the 2008-2009 school year and continuing through the 2011-2012 school year, the city school district of the city of New York shall: (A) establish annual class size reduction goals for each grade level targeted that will reduce class size toward the prekindergarten through grade 12  targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; (B) make measurable progress in each such school years toward achieving such targets; and (C) not exceed such targets by the end of the 2011-2012 school year; and
•               (v)  the classrooms created shall provide adequate and appropriate physical space to students and staff; or
•               (2)  assignment of more than one teacher to a classroom to facilitate student attainment of State learning standards pursuant to the following requirements:
•               (i)  priority shall be given to prekindergarten through grade 12 students in overcrowded schools particularly those requiring academic progress, schools in need of improvement, schools in corrective action, and schools in restructuring status;
•               (ii)  for the 2007-2008 school year, the city school district of the city of New York shall report, in a format and pursuant to a timeline prescribed by the commissioner,  the extent to which the assignment of additional teacher(s) to a classroom reduced the classroom teacher-student ratio for each grade level targeted and, where class size reduction goals are established under section 100.13(d)(2)(i)(a)(1)(iii) of this Part, shall also report measurable progress toward meeting such goals; and
•               (iii) beginning in the 2008-2009 school year and thereafter, in each classroom to which an additional teacher is assigned, the classroom teacher-student ratio shall not exceed the prekindergarten through grade 12 targets prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; or
•               (3) other methods, as approved by the commissioner, to otherwise reduce the student to teacher ratio.
•               (b)  Allowable programs and activities related to class size reduction in all other school districts shall include:
•               (1)  creation or construction of additional classrooms and/or buildings to facilitate student attainment of State learning standards pursuant to the following requirements:
•               (i)  for the 2007-2008 school year, the school district shall provide baseline data for the 2006-2007 school year stating for each grade level targeted:
•               (A)  the number of classes;
•               (B)  the average class size; and
•               (C) the number of classroom teachers;
•               (ii)  for the 2007-2008 school year, the school district shall establish class size reduction goals for each grade level targeted and, upon conclusion of such school year, shall report, in a format and pursuant to a timeline prescribed by the commissioner, measurable progress toward meeting such goals;
•               (iii)  beginning in the 2008-2009 school year and thereafter, the school district shall:  (A) establish class size reduction goals for each grade targeted that will reduce class size toward the kindergarten through grade 12 class size targets as prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; and (B) make measurable progress in each school year toward achieving such targets; and
•               (iv)  the classrooms created shall provide adequate and appropriate physical space to students and staff; or
•               (2)  assignment of additional teacher(s) to a classroom to facilitate student attainment of State learning standards pursuant to the following requirements:
•               (i) for the 2007-2008 school year, the school district shall provide baseline data for the 2006-2007 school year stating for each grade level targeted:
•               (A)  the number of classes;
•               (B)  the average class size; and
•               (C) the number of classroom teachers;
•               (ii)  for the 2007-2008 school year, the school district shall report, in a format and pursuant to a timeline prescribed by the commissioner,  the extent to which the assignment of additional teacher(s) to a classroom reduced the classroom teacher-student ratio for each grade level targeted and, where class size reduction goals are established under section 100.13(d)(2)(i)(b)(1)(iii) of this Part, shall also report measurable progress toward meeting such goals; and
•               (iii) beginning in the 2008-2009 school year and thereafter, in each classroom to which an additional teacher is assigned, the classroom teacher-student ratio shall not exceed the kindergarten through grade 12 targets prescribed by the commissioner after his/her consideration of the recommendation of an expert panel appointed by the commissioner to conduct a review of existing class size research; and
•               (iv)  placement of additional teacher(s) shall occur only in instances when there is no physical space available for creating additional classrooms.
•               (ii)  Student time on task. 
•               (a)  For kindergarten through grade 12, increased student time on task shall be designed to provide students with additional instruction time in content areas needed to facilitate student attainment of State learning standards that deepens their content knowledge and conceptual understandings through rigorous academic engagement.  Increased student time on task may be accomplished by one or more of the following:
•               (1)  Lengthened school day, pursuant to the following:
•               (i) when additional instruction is provided at the middle and high school level, such instruction shall emphasize content areas and instruction in subjects required for graduation; and
•               (ii)  student support services shall be provided, which may include, but are not limited to, guidance, counseling, attendance, parent outreach, behavioral support, or instruction in study skills which are needed to support improved academic performance.
•               (2)  Lengthened school year, pursuant to the following:
•               (i)  the additional time shall be used to provide additional instruction; and
•               (ii)  student support services shall be provided,  which may include, but are not limited to, guidance, counseling, attendance, parent outreach, behavioral support, or instruction in study skills which are needed to support improved academic performance.
•               (3) Dedicated instructional time, pursuant to the following: 
•               (i)  dedicated block(s) of time must be created for instruction in content areas that facilitate student attainment of State learning standards;
•               (ii)  a research-based core instructional program must be used during such daily dedicated block(s) of instructional time;
•               (iii)  a response-to-intervention program; and/or
•               (iv)  individualized intensive intervention.
•               (4)  Individualized tutoring, pursuant to the following:
•               (i)  shall be primarily targeted at students who are at risk of not meeting State learning standards;
•               (ii) shall supplement the instruction provided in the general curriculum;
•               (iii) may be provided by a certified teacher, a paraprofessional, a person with a major or minor in the subject matter to be tutored, or anyone otherwise deemed qualified by the superintendent based upon the person's knowledge and experience in education and/or the subject matter to be tutored;
•               (iv) shall emphasize content areas to facilitate student attainment of State learning standards, and when individualized tutoring is provided at the middle and high school levels, such tutoring shall emphasize content areas and instruction in subjects required for graduation; and
•               (v)  excludes costs for supplemental educational services.
•               (b)  Nothing in this section shall be deemed to preclude a school district from selecting one or more of the following programs, as an allowable program or activity to increase student time on task, provided that each such program meets the requirements of this subparagraph and the general requirements of paragraph (1) of this subdivision, and is approved by the commissioner pursuant to paragraph (2) of subdivision (c) of this section:  
•               (1) a new or expanded program in the visual arts, music, dance and/or theatre;
•               (2)  a new or expanded program in career and technical education;
•               (3)  after-school programs offering supplemental instruction, tutoring and/or other academic support and enrichment; and/or
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  (4)  summer camp programs offering supplemental instruction, tutoring and/or other academic support and enrichment.
  
•               (iii)  Teacher and principal quality initiatives.  Teacher and principal quality initiatives shall ensure that teachers and principals are appropriately certified and that all teachers of core academic subjects are highly qualified as required in section 120.6 of this Title and that an appropriately certified teacher, or a highly qualified teacher where required by section 120.6 of this Title, is assigned to every classroom and an appropriately certified principal is assigned to every school in accordance with section 100.2(a).  Such initiatives may include one or more of the following:
•               (a)  programs and activities to recruit and retain appropriately certified and highly qualified teachers and appropriately certified principals through the development and implementation of recruitment strategies and retention incentives;
•               (b)  professional mentoring programs for teachers and principals pursuant to the following:
•               (1)  professional mentoring programs included in district professional development plans pursuant to section 100.2(dd)(2)(iv) of this Title that provide mentoring for new teachers and principals in satisfaction of the mentored experience required for professional certification under sections 80-3.4(b)(2) and 80-3.10(a)(2)(ii) of this Title, or for other district identified needs; and/or
•               (2)  mentoringto improve the performance of other teachers and principals, consistent with collective bargaining and other applicable requirements;
•               (c)  incentive programs, developed in collaboration with teachers in the collective bargaining process, to encourage highly qualified and experienced teachers to work in low performing schools, provided that such programs shall not use funds for school-wide or district-wide salary enhancements or raises;
•               (d)  instructional coaches for teachers, pursuant to the following:
•               (1)  instructional coaches shall be appropriately certified or highly qualified teachers where required by section 120.6 of this Title; and
•               (2)  instructional coaches shall provide teachers with support in content areas and may provide professional development to teachers in pedagogy and/or classroom management, to improve student attainment of State learning standards; and/or
•               (e)  school leadership coaches for principals, pursuant to the following requirements:
•               (1) school leadership coaches shall provide individualized professional development to assist principals to become more effective instructional leaders and facilitate learning across all the curriculum areas; and
•               (2)  ensure that school leadership coaches are appropriately certified as a school district administrator, school administrator and supervisor and/or school business administrator pursuant to Subpart 80-2 of this Title or as a school district leader, school building leader and/or school district business leader pursuant to Subpart 80-3 of this Title and have demonstrated success as such.
•               (iv) Middle school and high school restructuring, pursuant to the following:   
•               (a)  allowable middle school and high school restructuring programs and activities are those that either:
•               (1)  implement instructional program changes to improve student attainment of State learning standards including, but not limited to, providing challenging academic content and learning opportunities, and/or implement intensive research and evidence based, cognitively appropriate academic intervention programs for students who are at risk of not meeting State learning standards. 
•               (2)  make structural changes to middle and/or high school organization including, but not limited to, changes to grade offerings in a building, creating grade nine academies, schools within schools, and/or different teams of teachers to deal with different needs of students.
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  (b)  Districts choosing to make structural changes to middle and/or high school organization shall also implement instructional program changes pursuant to subclause (1) of clause (a) of this subparagraph;
  
•               (c)  Nothing in this section shall be deemed to preclude a school district from selecting one or more of the following programs, as allowable middle school and high school restructuring programs and activities, provided that each such program meets the requirements of this subparagraph and the general requirements of paragraph (1) of this subdivision, and is approved by the commissioner pursuant to paragraph (2) of subdivision (c) of this section:  
•               (1) a new or expanded program in the visual arts, music, dance and/or theatre; and/or
•               (2)  a new or expanded program in career and technical education;
•               (v)  Full-day kindergarten or prekindergarten programs, pursuant to the following:
•               (a)  a full-day prekindergarten program is an instructional program for four year old children, including students with disabilities as appropriate, operated in accordance with sections 175.5 and 100.3 of this Title.
•               (1)   Allowable programs and activities for full-day prekindergarten are limited to the following:
•               (i)  a minimum full school day program; or
•               (ii)  a minimum full school day program  that includes additional hours to meet the needs of children and families; or
•               (iii) a minimum full school day program that includes additional hours to meet the needs of children and families in collaboration with eligible community based agencies; and/or
•               (iv)  programs designed to increase the integration of students with disabilities into full-day prekindergarten programs.
•               (2)  The program shall provide an instructional program according to the State student performance indicators for prekindergarten; 
•               (b)  A full-day kindergarten program is an instructional program for five year old children operated in accordance with sections 175.5 and 100.3 of this Title.
•               (1)  Allowable programs and activities for full-day kindergarten are limited to the following:
•               (i)  a minimum full school day program; or
•               (ii) a minimum full school day program that includes additional hours to meet the needs of children and families;
•               (2)  The program shall provide an instructional program according to the State student performance indicators for kindergarten.
•               (3)  Exceptions. 
•               (i) Experimental programs. 
•               (a)  Notwithstanding the provisions of this subdivision, a school district may use up to fifteen percent of the contract amount it receives for experimental programs designed to demonstrate the efficacy of other strategies to improve student achievement.           
•               (b)  Any district seeking to implement an experimental program shall first submit a plan to the commissioner for his or her approval, in a format and pursuant to a timeline prescribed by the commissioner, setting forth the need for such experimental program and how such program will improve student performance.
•               (c)  An experimental program must be based on an established theoretical base supported by research or other comparable evidence.
•               (d) The implementation plan for an experimental program must be accompanied by a program evaluation plan based on empirical evidence to assess the impact on student achievement.
•               (e)  The experimental program may be in partnership with an institution of higher education or other organization with extensive research experience and capacity.
•               (f)  Nothing in this section shall be deemed to preclude a school district from selecting an experimental program involving the use of instructional technology, provided that such program is approved by the commissioner pursuant to the requirements of this subparagraph:  
•               (ii)  Notwithstanding the provisions of this subdivision, a school district may use, in the 2007-2008 school year, up to $30 million dollars or twenty-five percent of the contract amount, whichever is less, to maintain investments in programs and activities listed in Education Law section 211-d(3)(a).
•               (e)  Public process. 
•               (1)  For the 2007-2008 school year, school districts shall solicit public comment on their contracts for excellence.
•               (2)  Commencing with the 2008-2009 school year and thereafter, a school district's contract for excellence shall be developed pursuant to the provisions of this paragraph through a public process, in consultation with parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c, which shall include at least one public hearing. 
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  (i)  Public comment period. 
  
•               (a)  There shall be a 30-day period for receipt of written public comment on each school district's proposed contract for excellence. 
•               (b)  Each school district shall provide reasonable notice of such public comment period to parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c. 
•               (1)  The notice of public comment period shall include, at a minimum:
•               (i)  a general description of the contract for excellence;
  
                (ii)  a detailed description of proposed allocations:
•               (a) on a school level;
•               (b)  by program area, including details concerning proposed program additions and/or enhancements;
•               (c)  by student achievement performance targets; and
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  (d)  by affected student population groupings, including, but not limited to:
  
•               (1)  students with limited English proficiency and students who are English language learners;
•               (2)  students in poverty; 
•               (3)  students with disabilities; and
•               (4)  students with low academic achievement;
•               (iii)  information on where to obtain a copy of the proposed contract for excellence; and
•               (iv)  a description of the process for submitting written comments, including, but not limited to, the school district address to which comments may be sent and the date by which comments must be received by the school district. 
•               (2)  Methods of providing notice may include, but are not limited to, posting the notice on a school district website, posting the notice in schools and school district offices in conspicuous locations, publishing the notice in local newspapers or other local publications, and/or school district mailings and distributions.  A school district shall also provide translations of the notice into the languages other than English that are most commonly spoken in the school district.
•               (ii)  Public hearings.
•               (a)  Number of hearings.
•               (1)  Each school district, other than the city school district of the city of New York, shall hold at least one public hearing.
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  (2) In the city school district of the city of New York, a public hearing shall be held within each county of such city. 
  
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  (b)  Notice of Public Hearing. 
  
•               (1)  Each school district shall provide reasonable notice of each public hearing held pursuant to this subdivision to parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c.
•               (2)  The notice of public hearing shall include, at a minimum:
•               (i)  a general description of the contract for excellence;
  
                (ii)  a detailed description of proposed allocations:
•               (a) on a school level;
•               (b)  by program area, including details concerning proposed program additions and/or enhancements;
•               (c)  by student achievement performance targets; and
•               (d)  by affected student population groupings, including, but not limited to:
•               (1)  students with limited English proficiency and students who are English language learners;
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  (2)  students in poverty; 
  
•               (3)  students with disabilities; and
•               (4) students with low academic achievement;
•               (iii)  information on where to obtain a copy of the proposed contract for excellence; and
•               (iv)  a description of the public hearing process, including the procedures for participation and submission of comments. 
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  (3)  Methods of providing notice may include, but are not limited to, posting the notice on a school district website, posting the notice in schools and school district offices in conspicuous locations, publishing the notice in local newspapers or other local publications, and/or including the notice in school district mailings and distributions.  A school district shall also provide translations of the notice into the languages other than English that are most commonly spoken in the school district.
  
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  (c)  Procedural requirements.
  
•               (1)  Public hearings shall provide an opportunity for oral and written comments to be submitted by parents of students or persons in parental relation to students, teachers, administrators, and any distinguished educator appointed pursuant to Education Law section 211-c.  Students and other interested parties may be allowed to participate, at the discretion of the school district.
•               (2)  In the city school district of the city of New York:
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  (i)  a transcript of the testimony presented at such public hearings shall be included when the contract for excellence is submitted to the commissioner for review when making a determination pursuant to paragraph (5) of subdivision (c) of this section;
  
•               (ii)  the contract shall be developed, to the extent appropriate, consistent with section 100.11 of this Title;  and
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  (iii)  each community district contract for excellence shall be consistent with the citywide contract for excellence and shall be submitted by the community superintendent to the community district education council for review and comment at a public meeting.
  
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  (iii)  Public comment record and assessment.
  
•               (a)  Each school district shall prepare, and make available upon request, a record of public comment received, including each written comment received and the transcript of oral comments presented at any public hearing held pursuant to this subdivision.  
•               (b)  Not later than 20 days after expiration of the public comment period or conclusion of public hearings, whichever occurs later, each school district shall prepare a public comment assessment, based upon any written comments submitted to the school district and any oral comments presented at any public hearing held pursuant to this subdivision.               
•               (1)  The public comment assessment shall contain:
•               (i)  a summary of the substance of the comments received, grouped by subject matter; and
•               (ii)  the school district's response to each substantive comment, including a statement of any changes made to the contract for excellence as a result of such comment, or an explanation of why the comment's suggestions were not incorporated into the contract for excellence.
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  (2)  The public comment assessment shall be posted on a school district website and otherwise made available upon request.
  
•               (f)  Complaint procedures. 
•               (1)  General requirements.  The trustees or board of education of each school district required to prepare a contract for excellence, or the chancellor in the case of the city school district of the city of New York, shall assure that procedures are in place by which parents of students or persons in parental relation to students may bring complaints concerning implementation of the district's contract for excellence.
•               (i)  In the city school district of the city of New York, such procedures shall provide that complaints may be filed with the building principal with an appeal to the community superintendent, or filed directly with the community superintendent, and that appeal of the determination of a community superintendent shall be made to the chancellor.
•               (ii)  In all other districts, such procedures shall either provide for the filing of complaints with the building principals with an appeal to the superintendent of schools or for filing of the complaint directly with the superintendent of schools, and shall provide for an appeal to the trustees or board of education from the determination of the superintendent of schools.
•               (iii)  The determination of the trustees or board of education or the chancellor may be appealed to the commissioner pursuant to Education Law section 310.
•               (2)  Specific requirements.  In addition to the complaint procedures established by the school district pursuant to paragraph (1) of this subdivision, each such school district shall also comply with the following:
•               (i)  Complaint form. 
•               (a)  Each school district shall develop a complaint form, which shall also include instructions for its use, which shall be written to the extent practicable  in plain language and organized in a manner which best promotes public comprehension of the contents.  The complaint form shall specify the location(s) where a complaint may be filed and the deadline for filing a complaint.  A school district shall also provide translations of the complaint form into the languages other than English that are most commonly spoken in the school district.
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  (b)  Use of the complaint form is recommended, but shall not be deemed mandatory, for purposes of bringing a complaint pursuant to this subdivision.  A school district shall accept a complaint that substantially complies with the school district's complaint procedures and the provisions of this subdivision.    
  
•               (ii)  Notice of complaint procedures. 
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  (a)  Each school district shall provide reasonable notice to parents of students or persons in parental relation to students, of the following:
  
•               (1) the procedures for bringing a complaint concerning implementation of the district's contract for excellence;
•               (2)  the location(s) where a complaint form may be obtained;
•               (3)  the location(s) where a complaint may be filed; and
•               (4)  the deadline for filing a complaint.
•               (b)  A school district shall provide translations of the notice of complaint procedures into the languages other than English that are most commonly spoken in the school district.
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  (c)  Each school district shall post, and make available for downloading, its notice of complaint procedures and complaint form on a school district website.  A school district may also use additional methods to provide notice, including, but not limited to, making copies of the complaint notice and complaint form available in schools and school district offices, and including such copies in school district mailings and distributions.
  
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  (iii)  Complaint commencement, investigation and resolution.
  
•               (a)  A complaint shall be commenced within the time period established by the school district.  Such time period shall provide for the commencement of a complaint within a reasonable, specified number of days, as determined by the school district, from the making of the decision or the performance of the act complained of, and shall include a provision authorizing the school district to excuse a failure to commence an appeal within the time specified for good cause shown.  
•               (b)  The building principal, community superintendent or superintendent, as applicable, shall make reasonable efforts to investigate a complaint, and shall notify the complainant in writing of his or her complaint determination and the basis for such determination within 30 days from the date of receipt of the complaint.   The written notification shall also provide an explanation of the procedures for appealing the complaint determination. 
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  (c)  If the complainant appeals the complaint determination of a building principal to the superintendent or community superintendent, the superintendent or community superintendent, as applicable, shall notify the complainant in writing of his or her appeal determination and the basis for such determination within 30 days from the date of receipt of the appeal.  The written notification shall also provide an explanation of the procedures for appealing the determination to the trustees/board of education or the chancellor, as applicable.
  
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  (d)  If the complainant appeals the complaint determination, or an appeal determination, of a superintendent or community superintendent, to the trustees/board of education or chancellor, the trustees/board of education or chancellor, as applicable, shall notify the complainant in writing of its appeal determination and the basis for such determination within 30 days from the date of receipt of the appeal.  The written notification shall also state that such appeal determination may be appealed to the commissioner pursuant to Education Law section 310 and Parts 275 and 276 of the Regulations of the Commissioner of Education.
  
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  (e)  Appeals of determinations pursuant to clauses (b) and (c) of this subparagraph shall be commenced within the time periods for such appeals as established by the school district.  In the event the complainant does not receive the written notification of determination specified in clause (b) of this subparagraph within 35 days from the date the school district received the complaint, the complainant may deem the failure to provide such notification as an unsatisfactory determination and may commence an appeal to the superintendent or community superintendent, or to the trustees/board of education or chancellor, as applicable, within the time period for such appeals as established by the school district. 
  
•               (g)  Reporting.  Each school district shall publicly report, in a format and timeline prescribed by the commissioner, its school-based expenditure of total foundation aid in accordance with the following:  a school district shall report in total and for each of the allowable programs and activities included in its contract for excellence and which the district proposes to fund with its contract amount, for each school and each district-wide program:
•               (1)  expenditures in the base year;
•               (2)  budgeted expenditures for the current year; and
•               (3) actual expenditures for the current year.
•               2.  Paragraph (1) of subdivision (e) of section 170.12 of the Regulations of the Commissioner is amended, effective March 22, 2008, as follows:
•               (1)  Each school district, except those employing fewer than eight teachers, and each BOCES shall obtain, in a form prescribed by the Commissioner, an annual audit of its records by an independent certified public accountant or an independent public accountant in accordance with the provisions of Education Law section 2116-a(3) and the provisions of this subdivision.  The board of education of the City School District of the City of New York and community districts of such city school district shall obtain an annual audit by the comptroller of the City of New York, or by an independent certified public accountant in accordance with the provisions of Education Law section 2116-a(3) and the provisions of this subdivision.  For school districts required to prepare a contract for excellence pursuant to Education Law section 211-d, the annual audit for the school year during which such contract was in effect shall also include a certification by the accountant or, where applicable, the comptroller of the City of New York, in a form prescribed by the Commissioner, that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes.   
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