Amendments to APPR Requirements

i.   For the mandatory component, teachers fit into one of several categories:

(1)   A teacher whose course ends in a State-created or administered test for which there is a State-provided growth model and at least 50% of the teacher’s students are covered under the growth measure, the teacher will have a State-provided growth score based on the model.

(2)   A teacher whose course does not end in a State-created or administered test or where less than 50% of the teacher’s students are covered by the State-provided growth model will have a SLO that is consistent with a goal setting process determined or developed by the Commissioner that results in a student growth score.

(3)   A teacher whose course does not end in a State-created or administered test or where a State-provided growth measure is not determined, the district or BOCES may determine whether to use SLOs based on a list of approved student assessments or a school or BOCES-wide group or linked results based on State assessments.

Districts and BOCES are required to have back up SLOs for all teachers whose courses end in a State-created or administered test for which there is a State-provided growth model.

ii.   For the optional component, teachers will fit into one or more of the following categories, the determination of which will be decided locally through collective bargaining:

(1)   A second State-provided growth score on a State-created or administered test, provided that a different measure is used than that used in the mandatory component, which may include one or more of the following measures:

(a)   A teacher-specific growth score computed by the State based upon the percentage of students who achieve a State-determined level of growth;

(b)   A school-wide growth result based upon a State-provided school-wide growth score for all students attributable to the school who took the State ELA or math assessment in grades 4-8; or

(c)   A school-wide, group, team or linked growth result using the available State-provided growth scores that are locally computed.

iii.   The following weights are applied in the proposed amendments:

(1)   If a district does not locally select through collective bargaining to use the optional second student growth component, then the mandatory component will be weighted 100%.

(2)   If the optional second component is selected through collective bargaining, it will be weighted at a maximum of 50% and the mandatory component at a minimum of 50%, with the precise weighting of each being determined through collective bargaining.

(3)   Each grading measure used in the student performance category must result in a score between 0 and 20. The State will generate the scores of 0-20 using the growth score. Districts will calculate SLO scores in accordance with a table provided in the amendments or in accordance with the methodology prescribed by the Commissioner for small “n” sizes. For measures that are not State-provided growth measures, the score will be computed locally in accordance with the State-provided or approved growth model used.

b.   Teacher observation category, which has two mandatory and one optional components, as follows:

i.   One observation that will be conducted by a principal or trained administrator and a second observation that will be conducted by one or more impartial independent trained evaluator(s) selected and trained by the district. If the evaluator is employed by the district, he/she may not be assigned to the same school building as the teacher being evaluated. One of these two observations must be unannounced.

ii.   The third optional component may include classroom observations conducted by a trained peer teacher rated Effective or Highly Effective in his/her overall rating in the prior school year.

iii.   The frequency and duration of observations must be established locally through collective bargaining.

iv.   All observations must be conducted using a teacher practice rubric approved by the Commissioner pursuant to a Request for Qualification (“RFQ”) process, unless the district has a variance from the Commissioner.

v.   The weighting of the components will be established locally through collective bargaining within the following guidelines:

(1)   Observations by a principal or trained administrator will be weighted at least 80%;

(2)   Observations by an independent impartial observer will be weighted at least 10%; and

(3)   If a third optional observation component is collectively bargained, the weighting will be established locally through collective bargaining in a manner consistent with the above requirements.

vi.   The overall observation score will be converted into an overall rating pursuant to the ranges identified in the amendment.

9.   New Section 30-3.5 sets forth new requirements regarding building principal APPRs. Building principals will be evaluated in two categories: (1) student performance; and (2) school visits.

a.   The student performance category has one mandatory and one optional component. The decision to use the optional component must be collectively bargained.

i.   The mandatory component varies based upon whether the principal has at least 30% of his/her students covered by a State-provided growth measure.

(1)   If so, the principal will have a State-provided growth score based on the model; or

(2)   If not, the principal will have a SLO that is consistent with a goal setting process determined or developed by the Commissioner that results in a student growth score.

ii.   If a second optional component is utilized, it will be comprised of a second State-provided growth score on a State-created or administered test, provided that the growth measure is different than that used in the mandatory component, which may include one or more of the following measures:

(1)   A principal-specific growth score computed by the State based upon the percentage of students who achieve a State-determined level of growth;

(2)   A school-wide, group, team or linked growth result using the available State-provided growth scores that are locally computed; or

(3)   A growth score based on a State designed supplemental assessment calculated using a State-provided or approved growth model.

iii.   The following weights will apply:

(1)   If the optional second component is not locally selected through collective bargaining, then the mandatory component will be weighted 100%.

(2)   If the optional second component is selected through collective bargaining, it will be weighted at a maximum of 50% and the mandatory component at a minimum of 50%, with the precise weighting of each being determined through collective bargaining.

iv.   Each grading measure used in the student performance category must result in a score between 0 and 20. The State will generate the scores of 0-20 using the growth score. Districts will calculate SLO scores in accordance with a table provided in the amendments or in accordance with the methodology prescribed by the Commissioner for teachers with courses with small “n” sizes. For measures that are not State-provided growth measures, the score will be computed locally in accordance with the State provided or approved growth model used.

b.   The school visit category is comprised of three components, two of which are mandatory and one of which is optional. The decision to use the optional third component must be collectively bargained.

i.   One observation must be conducted by the principal’s supervisor or other trained administrator. A second observation must be conducted by one or more impartial independent trained evaluator(s) selected and trained by the district. If the evaluator is employed by the district, he/she may not be assigned to the same school building as the principal being evaluated. One of these observations must be unannounced.

ii.   The third and optional subcomponent may include a school visit conducted by a trained peer administrator rated Effective or Highly Effective in his/her overall rating in the prior school year.

iii.   The frequency and duration of observations will be established locally through collective bargaining.

iv.   All observations must be conducted using a principal practice rubric approved by the Commissioner pursuant to a RFQ process, unless the district has a variance from the Commissioner.

v.   The weighting of the subcomponents will be established locally through collective bargaining within the following guidelines:

(1)   Observations by the principal’s supervisor or trained administrator will be weighted at least 80%;’

(2)   Observations by an independent impartial observer will be weighted at least 10%; and

(3)   If the district uses the third optional observation, the weighting will be established in a manner consistent with the above requirements.

vi.   The overall observation score will be converted into an overall rating pursuant to the ranges identified in the amendment.

10.   New Section 30-3.6 provides that the overall rating must be computed using the evaluation matrix established by the new amendments.

a.   It must be possible to obtain each point in the scoring ranges (including 0) for each category and subcomponent.

b.   The superintendent, district superintendent or chancellor of a district or BOCES and the president of the relevant collective bargaining representative must certify in the APPR plan that the evaluation system will use the weights and scoring ranges provided by the Commissioner and that the process by which weights and scores are assigned is transparent and available to those being rated before the beginning of each school year.

11.   New Section 30-3.7 lists the items that may not be used as part of either a teacher’s or principal’s evaluation. They are:

a.   Evidence of student development and performance derived from lesson plans, other artifacts of teacher practice or student portfolios, unless the portfolio is measured by a State-approved rubric;

b.   An instrument for parent or student feedback;

c.   Professional goal-setting used as evidence of effectiveness;

d.   Any assessment that has not been approved by SED; a

e.   Any growth or achievement target that does not meet the minimum standards set forth in the APPR law or implementing regulations.

12.   New Sections 30-3.8 and 30-3.9 set forth the approval processes for student assessments and teacher and principal practice rubrics.

13.   New Section 30-3.10 sets forth the training requirements for evaluators and lead evaluators, which now requires training on prescribed elements relating to observations and the applicable rubrics pursuant to Education Law § 3012-d(15).

14.   New Section 30-3.11 authorizes the superintendent, in the exercise of his/her pedagogical judgment, to develop and implement improvement plans pursuant to Education Law § 3012-d(15).

15.   New Section 30-3.12 permits a teacher or principal to appeal his/her APPR in order to challenge the following:

a.   The substance of the APPR, including where the teacher or principal is rated Ineffective on student performance, but rated Highly Effective on the observation or school visit category based on an “anomaly,” as determined locally;

b.   The district or BOCES’ adherence to the standards and methodologies required for the APPR;

c.   The district or BOCES’ compliance with either the Commissioner’s regulations or any locally negotiated procedures; or

d.   The district or BOCES’ issuance or implementation of the terms of a teacher or principal improvement plan.

Any appealed APPR may not be used as evidence in any disciplinary proceeding while the appeal remains pending.

16.   New Section 30-3.13 requires SED to annually monitor and analyze teacher and principal evaluation results. In the event that SED identifies districts or BOCES that are underperforming or are in need of assistance to ensure compliance, SED may order a corrective action plan.

17.   New Section 30-3.14 codifies a statutory requirement that students cannot be assigned to two teachers in the same subject in consecutive years where each of the teachers received an Ineffective rating in the school year immediately preceding the placement. There is a teacher-specific waiver available only where compliance is impracticable.

18.   New Section 30-3.15 describes how certain provisions of Education Law § 3012-c are carried over into the new regulatory system.

19.   New Section 30-3.16 provides for challenges to State-provided growth scores.[1]

a.   To mount an appeal, a teacher or principal must provide documentation that he/she meets at least one of the following criteria in his/her annual evaluation:

i.   The teacher or principal received an Ineffective rating in his/her growth score and a Highly Effective rating on the other measures of teacher/leader effectiveness subcomponent in the current year and received either an Effective or Highly Effective growth score in the previous year; or

ii.   The high school principal for a building that includes at least grades 9-12 received an Ineffective on the growth score, but a sufficient percentage of students (as determined by the Commissioner) scored at proficiency within four years of first entering grade 9 on SED-approved alternative ELA and/or math tests.

b.   To be timely, an appeal must be submitted within 20 calendar days of receipt of the APPR rating or the effective date of this Section, whichever is later. A copy of the appeal must be submitted to the district or BOCES, which will have 10 calendar days to submit a reply to SED. Appeals cannot be commenced before receipt of the APPR rating.

c.   If the appeal is successful, the district or BOCES will substitute the teacher’s or principal’s results on the back-up SLO developed for that teacher or principal. This score can be no higher than Developing. If no SLO was developed, then the composite score will be based on the unaffected portions of the APPR.

d.   An evaluation on appeal cannot be used as evidence in any disciplinary proceeding against the teacher or principal until the appeal process has concluded.

e.   The district or BOCES retains the unfettered right to terminate a probationary teacher or principal for any statutorily or constitutionally permissible reason(s).

f.   The pendency of an appeal does not alter a district or BOCES’ obligation to develop an improvement plan.

g.   A high school principal of a building with at least grades 9-12 will not receive a State-provided growth score and will instead use back-up SLOs if:

i.   The principal would be rated Ineffective or Developing on the growth score, but the graduation rate of the students in that building exceeded 90% and the proportion of the student population included in either the ELA Regents Median Growth Percentile or the Algebra Regents Median Growth Percentile was less than 10% of the total enrollment of the school; or

ii.   The principal has no Combined Median Growth Percentile rating or score and the proportion of the student population included in either the ELA Regents Median Growth Percentile or the Algebra Regents Median Growth Percentile was less than 5% of the total enrollment of the school in one subject and less than 10% of the total enrollment in the other subject.

If there is no back-up SLO, then the principal’s overall score and rating will be based on the remaining portions of his/her APPR.

These provisions will become effective as an emergency rule on September 28, 2015 and will be presented for permanent adoption at the November Board of Regents meeting after publication and expiration of the 30-day public comment period.[2] If adopted at the November meeting, these provisions will become effective on December 2, 2015.

If you have any questions about the impact of the amendments or would like assistance with implementing same, please contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2015

[1] New Section 30-2.13 also permits teachers and principals to challenge growth scores according to provisions that are substantively identical to those found in new Section 30-3.16.

[2] The summary provided by SED, dated September 11, 2015, does not include information that is contained within the new provisions and includes references to provisions that were not made a part of the final amendments. That summary, therefore, should not be relied upon at this time. We anticipate that SED will release a new memo in the coming days.