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Meeting of the Board of Regents | January 2010

Monday, January 11, 2010 - 11:40pm


The Honorable the Members of the Board of Regents



Diana M. Hinchcliff, Director, Office of Governmental Relations


Proposed Regents 2010 State and Federal Legislative Priorities


January 4, 2010


Legislative Action to Implement Regents 2010-11 State Budget Proposal and Federal and State Legislative Proposals




Executive Summary


Issue for Decision

              Regents state and federal legislative priorities for 2010.


Reason(s) for Consideration


              Legislative action required to implement Regents 2010-11 state budget proposal and federal and state legislative proposals.

Proposed Handling

              The Board of Regents is asked to approve these legislative priorities for 2010.

Procedural History

              Each year the Regents identify policy issues that will require legislation for implementation. Some are carried over from the previous year and some are new. Those requiring a state appropriation are included in the Regents budget proposal. The others are proposed for introduction during the legislative session. The process for developing legislative priorities is synchronized with the process for developing budget proposals. 






The Regents priority federal and state legislative recommendations for 2010 propose new, reauthorized or extended statutory authority that would enable SED to carry out legislative mandates and Regents policy. The priorities include proposals for legislation needed to execute actions that would be required by the Regents 2010-11 budget priorities and funding requests related to federal statutes. Not all budget priorities would require legislation and not all the legislative priorities are related to the budget request.



Background Information


New York will apply for a US Education Department Race To The Top grant. The Regents, at previous board meetings, have recommended certain state legislative actions as part of a broad agenda for education reform and to place New York in a more competitive position for an RTTT award.  On the federal side, the Obama administration is expected to issue a proposal early in 2010 to reauthorize the Elementary and Secondary Education Act (ESEA, which includes NCLB), which will initiate the reauthorization process in Congress. The Regents developed detailed recommendations for ESEA reauthorization in 2007 and revised them in 2009 based on lessons learned in the intervening years and new ideas emanating from the Obama administration and the 111th Congress. Further revision and development of recommendations may be needed to advance the Board’s new strategic direction and respond to the administration’s reauthorization proposal, which will include elements of the ARRA State Fiscal Stabilization Fund and Race To The Top grants. To ensure a timely response to the administration’s proposal, we request the Regents authorization and direction to develop additional ESEA recommendations (the recommendations themselves would be placed before the Board for approval at a later date).  

A complete description of the Regents priority federal and state legislative proposals for 2010 follows.


              This is before the Board of Regents for approval.

Timetable for Implementation

              Implementation will occur as appropriate and timely during the 2010 congressional and state legislative sessions.








(1) Raise the charter school cap to facilitate the creation of new charter schools, particularly secondary schools, focused on serving high need populations of students, i.e., low-income students, students at Level 1 or Level 2 performance on the NY State assessments, over-age and under-credited high school students, English language learners (ELLs), and students with disabilities (SWDs). 

As part of raising the cap:

  • Encourage authorizing single Board governance of multiple schools with a common management entity;
  • Authorize the provision of pre-K education by charter schools;
  • Strengthen equitable funding for charter schools, and access to facilities financing for charters;
  • Ensure that charter school funding, student enrollment policies, and all charter board and school-level practices are fully transparent and their actions and results fully accountable to public authority, and continue to evaluate the local impact of placing new charter schools into particular communities;
  • Authorize the Commissioner to order – in extraordinary circumstances – an LEA to convert a struggling public district school into a charter school; and
  • Authorize charter schools to access BOCES services.


(2) The Regents recommend authorizing educational management organizations (EMOs) with demonstrated results raising the achievement of high needs students to manage schools

  • EMOs would be granted authority to directly manage schools (including budgets, staffing decisions, the daily schedule and yearly calendar, etc.). 
  • Education Law §355(2)(n) authorizes SUNY to enter into a contract with the board of education of a city or LEA in which the State-operated institution is located.  Education Law §2590-K, empowers the New York City Board of Education and CUNY to enter into a contract to administer not more than five high schools.  Similar provisions would be necessary to allow EMOs to enter into contracts with LEAs to operate one or more schools.
  • EMOs will be non-profit entities authorized and selected through a rigorous process focused on proven success in raising the achievement of high needs students and demonstration of capacity.


(3) The Regents recommend establishing as a legislative priority expansion of the authority of the Board of Regents to intervene in LEAs that have been declared chronically underperforming and giving the Regents the authority to designate a three-member team who would assume the responsibilities of an Education Oversight Board of the district with all the powers of the School Board. 

NYSED would not directly manage the district. The Education Oversight Board will have the authority to choose a new superintendent should they so decide. The Education Oversight Board shall report directly to the Education Commissioner and serve at the discretion of the Commissioner.

(4) Section 3020-a of Education Law requires the State Education Department to pay the expense of the tenured teacher hearings.  These costs include the costs of hearing officers, stenographers, and panel members participating in the hearing process.  These hearings often tend to be expensive and lengthy.  

To streamline the 3020-a process, the Regents recommend:

  • Developing financial incentives to expeditiously resolve cases and reduce the State's financial burden;
  • Addressing the issue of mutual disclosure to ensure that the process is efficient and fair; and
  • Eliminating the need for a full 3020-a process to excess a teacher who is not appropriately certified.



Improve the pass rate for applicants for a GED

              While more applicants take the GED test in New York than in any other state, our pass rate of 58 percent is the lowest in the nation. New York does not require applicants to pass the official GED practice test before taking the GED exam; 14 states have this requirement. New York is one of only two states that do not charge a testing fee; each test costs SED $120. Funding for the GED has been reduced; however, the demand for the test has increased due to the poor economy. Needed are changes to existing law to establish and support a system that will maximize limited resources for this program while at the same time helping GED students be successful by creating links from GED to training, post-secondary education and the workforce.

Strengthen requirements for licensure of and SED’s oversight and accountability authority over proprietary schools; increase licensure fees

              Students who attend proprietary schools that do not grant degrees must be protected from illegal and unethical practices and must be able to receive a refund of their tuition and fees if a school goes out of business. The current fee and fine structures would be increased and adjusted to support SED’s oversight of these proprietary schools. Amendments to law would create a candidacy school program to eliminate unlicensed schools and a disbursement schedule for private lenders that are required to reimburse students from the Tuition Reimbursement Account when schools go bankrupt or are in financial difficulty.


Continue to Fund the Smart Scholars Early College High School Program 


The Executive previously committed to providing $6 million to match an equal amount from the Bill and Melinda Gates Foundation. The Gates and state’s money will fund 11 and 12, respectively, new programs or expansions of existing programs.

Require criminal history checks and fingerprinting for Office of Cultural Education employees and volunteers and special education employees

Legislation is needed to require OCE employees and volunteers to be fingerprinted as a condition of employment or acceptance as a volunteer. This would protect children and students who tour the State Museum, State Archives and State Library and reduce the possibility of theft of valuable and irreplaceable items and artifacts.

Ensure stable and adequate funding for the Cultural Education revenue account and the Local Government Records Management Improvement Fund

        The Cultural Education (CE) account was created by an act of the legislature in 2002, which also transferred to it all Office of Cultural Education functions previously supported by General Fund appropriations.  It provides a major share of the operational funding for the State Museum, State Archives, State Library, and Office of Public Broadcasting and Educational Television as well as $1,200,000 for the General Fund, $1,000,000 for the Summer School for the Arts; up to $650,000 for the Empire State Performing Arts Center and up to $3,272,300 for the New York State Theater Institute. The Local Government Records Management Improvement Fund (LGRMIF) funds grants to local government.  The LGRMIF is funded by a county-collected surcharge of $5.00 for certifying certain documents, such as mortgages, or assigning an index number to actions pending in county court or Supreme Court.  The 2002 statute kept the LGRMIF charge in place and applied an additional $15.00 surcharge to support the new CE account.  Counties retain $.75 of each CE account surcharge to defray their collection expense.

Annual revenue from fees in the CE account has declined more than 32 percent from the first several years and revenue from interest has declined 84 percent from three years ago and will disappear this year. Annual revenue (before transfers out of the fund) is now below the cost of operating the Office of Cultural Education’s programs. Legislation is needed to amend the current CE fee structure to provide an additional $7.50 surcharge, which would include an additional $.25 to be retained by the counties to defray collection expenses.

Reduce the number of required school district reports and plans

A substantial portion of the reporting and planning requirements imposed on school districts by state statute should be eliminated if they are duplicative, unnecessary or outdated. Both the Commission on Property Tax Relief and the Commission on Local Government Efficiency and Competitiveness recommended an end to unfunded mandates. Legislation is needed to eliminate statutory requirements and allow SED to rescind regulations that are duplicative or unnecessary. Plans and reports would be limited to those necessary to carry out critical state interests such as maintaining school district accountability, closing the student achievement gap and protecting health and safety of students, teachers and administrators in schools. Regulations based on federal statutory requirements would be streamlined where possible and state and federal requirements would be aligned. The net effect would be to require data reporting to only one source and to continuously improve data collection.

Allow retired teachers to teach in hard-to-staff schools identified in the state’s accountability system without affecting their pension benefits

              There is a severe shortage of qualified, certified teachers in the arts, math, science, bilingual education, career and technical education, English as a second language, school media and bilingual special education in urban and rural school districts throughout the state. Schools under registration review and other low-performing schools with challenging teaching environments historically have had difficulty attracting qualified teachers. There is a significant turnover rate among new teachers and those in high-need schools. The number of baby-boomer teachers retiring will increase each year and there are not enough new and experienced teachers to replace them. The Retirement and Social Security Law should be amended to permit retired public employees who hold a valid teaching certificate to teach subjects in high-need schools identified in the state's accountability system without a cap on the salary they earn while also receiving a state pension. The state Commissioner of Education and the New York City Department of Education chancellor would have to certify the need for teachers, and the term of their employment would be limited. This would help relieve the statewide shortage of qualified teachers for these subjects, areas and schools.

Strengthen early childhood education by lowering compulsory school age to 5 and require school districts to provide full-day kindergarten

The compulsory school age is 6.  Current law makes kindergarten optional and allows school districts to offer only half-day kindergarten programs. Of 678 school districts, 34 are providing half-day programs while 603 offer full-day and 41 offer a combination of full-day and half-day. Legislation is needed to give SED authority to require children to enter school at age 5 to give them a good start on their education.

Children who start their education behind often stay behind because there is no “catch up” curriculum. How a child reads at the end of first grade predicts with 80 percent reliability how he or she will read at the end of third grade. Research overwhelmingly shows that acquiring academic skills and knowledge by age 6 correlates with later academic success in school and in life.  Early education has strong economic benefits, according to major research studies: it reduces drop-out rates and the need for intervention services. Children with disabilities would have the continuum of services they need so they can be integrated in regular classrooms. Kindergarten, which is not a mandate now, would be less vulnerable to funding cuts.  School districts often propose to eliminate kindergarten in tight budgets, causing great concern for parents and disadvantaging young students. Parents would be able to request a waiver from this requirement. 

Expand and enhance BOCES’ role in providing inter-municipal and component school district services and repeal or amend the cap on a BOCES superintendent’s salary

Pursuant to the recommendations of the Commission on Property Tax Relief and the Commission on Local Government Efficiency and Competitiveness, the district superintendents are developing a proposal to expand and enhance BOCES’ role in providing intermunicipal and component school district services. It will include a recommendation that the cap on the district superintendent salary be amended to 90% of the Commissioner’s salary. The cap has made the recruitment and retention of district superintendents extremely difficult.  Amending the salary cap would allow BOCES boards to use local funds to create appropriate compensation that would enable them to hire leaders of the quality essential to fulfill the role the Regents education agenda demands. It also would re-establish an appropriate level of local control and focus more accountability at the local level, where it is most effective. This legislation would require no additional state funds.

Conform state legislation to federal requirements under Individuals with Disabilities Education Act (IDEA) and propose amendments to improve current law

Chapter 378 of the Laws of 2007 conformed Education Law to the federal 2004 Individuals with Disabilities Education Act and final federal implementing regulations.  Chapter 378 extended the provisions of Chapter 352 of the Laws of 2005 and Chapter 430 of the Laws of 2006 and included amendments relating to: students with disabilities attending charter schools; students with disabilities being enrolled in nonpublic schools by their parents; the definitions of “related services” and “transition”; the agreement between a parent and a school district regarding the members of a committee on special education or a committee on preschool special education attending meetings to develop a student's individualized education program; changes to an IEP after the annual review meeting and three-year re-evaluation; who may make a referral for an initial evaluation for special education services; and due process procedures.  The current law will sunset on June 30, 2010.  Legislation to extend it is necessary to ensure continuing compliance with IDEA.




Reauthorize the Elementary and Secondary Education Act (including No Child Left Behind)

Once the Obama administration issues an ESEA reauthorization proposal, expected in the first quarter of 2010, another revision of the Regents’ recommendations may be needed to advance the Board’s new strategic direction for education reform and to respond specifically to the proposal, which will include elements of the ARRA State Fiscal Stabilization Fund (SFSF) and Race To The Top (RTTT). The complete Regents 2009 ESEA/NCLB recommendations are on SED’s website at: These are the current top priorities:


  • Accountability: permit use of growth models, improve standards and assessments
  • School improvement: permit differentiated accountability and targeting, improve graduation rates
  • Teachers/school leaders: improve preparation, rewards, distribution
  • Data systems/technology: support expansion of data systems, streamline data definitions, increase access to digital content
  • Funding:  full funding and adequate resources to fully implement the law


Revised ESEA recommendations would be placed before the Board for approval at a later date.

Reauthorize the Workforce Investment Act (WIA)

This law connects postsecondary career and technical education and training, adult education and family literacy, and vocational rehabilitation for out-of-school youth and adults. It has three components, all of which should be better coordinated to improve services and outcomes:


    • Title I—Workforce Investment Act. Support delivery system infrastructure
    • Title II—Adult Education and Family Literacy Act. Expand state leadership activities; expand support for literacy zones
    • Title IV—Vocational Rehabilitation Act. Enhance core funding; create new focus on transition; increase support for Independent Living Centers


Reauthorize the Museum and Library Services Act (MSLA)

This law has two components:


    • Library Services and Technology Act. Ensure a supply of qualified library professionals; improve data collection
    • Museum Services Act. Increase funding to improve access, use of technology, collection management and community engagement 


Enact the Preserving the American Historical Record (PAHR) Act

This is a new bill that would fund preservation of and greater access to state and local archival records.


Enact the Early Learning Challenge Fund


Passage of the Early Learning Challenge Fund and other proposals for early education would expand access to and improve the quality of pre-kindergarten programs.

Strengthen the E-Rate Program

E-Rate funds telecommunications and Internet services, and cabling and network infrastructure (but not hardware) for schools and libraries. E-rate should be permanently exempted from the Anti-deficiency Act, which would allow for a more flexible funding schedule, the application process should be simplified, and there should be no additional federal requirements for blocking and filtering access to Internet content.

Provide Adequate Funding for Federal Programs

Funding should be preserved at current levels, and preferably increased, for these programs managed by SED:


      • ESEA/NCLB—Title I, school improvement, literacy, teacher/school leader preparation, educational technology, career and technical education, language acquisition, after-school programs
      • Early childhood education
      • Adult Basic and Literacy Education


      • IDEA
      • Vocational Rehabilitation
      • Supported Employment
      • Independent Living

Cultural Education:

      • Library Services and Technology Act
      • Preserving the American Historical Record Act
      • National Historical Publications and Records Commission
      • Corporation for Public Broadcasting

Higher Education:

      • Pell Grants