August 17, 2020 Recent Amendments to the Commissioner’s Regulations
KEEPING YOU INFORMED…
We are writing to advise you that, during its July 2020 meeting, the Board of Regents adopted regulations to provide flexibility for educators, students and professionals; to address issues resulting from COVID-19-related restrictions on in-person student instruction; and to prepare for the upcoming school year.
Newly Adopted Emergency Amendments
Provided below is a summary of the key amendments that relate to K-12 schools. These took effect on July 14 as temporary emergency measures. The State Education Department anticipates that these amendments will be presented for permanent adoption at the Board of Regents’ October 2020 meeting. If adopted at that meeting, the amendments will become effective on November 4, 2020. The emergency adoption will expire prior to the October 2020 meeting. SED anticipates that an additional emergency action will be presented for adoption during the Board of Regents’ September meeting to continue the amendments until they are permanently adopted in October.
Curriculum and Instruction
- Section 117.3(b) of the Commissioner’s Regulations is amended to provide that, for the 2020-21 school year, diagnostic screening for new entrants and students with low test scores must be conducted “as soon as practicable due to the COVID-19 crisis.” Previously, this screening had to be completed by December 1 of the school year of entry or within 15 calendar days of a student’s transfer to a New York public school.
- Section 100.1 defines “Unit of study” as “at least 180 minutes of instruction per week throughout the school year, or the equivalent.” The term “equivalent” is now defined as “at least 180 minutes of instructional time per week for instruction delivered in a traditional face to face model or through alternative instructional experiences.” The amendment further provides that “instructional experiences” include, but are not limited to: (a) meaningful and frequent interaction with an appropriately certified teacher; (b) academic and other supports designed to meet the needs of the individual student; and (c) instructional content that reflects consistent academic expectations as in-person instruction. Any alternative instructional experience must include “meaningful feedback on student assignments and methods of tracking student engagement.” The Board of Regents has explained that this amendment is necessary so that schools may plan for various types of instructional models, including hybrid models, where it is impossible to have a specific amount of face-to-face contact between teachers and students.
- Section 100.6(b) is amended to provide that a career development and occupational studies commencement credential may be awarded to students exiting school in the 2020-2021 school year who are unable to complete all of the required 54 hours of documented school supervised work-based learning experiences and who otherwise meet all of the other requirements for the credential if the school is unable to provide students a certain portion of their scheduled work-based learning experience in the 2020-2021 school year due to the COVID-19 crisis.
- Section 100.5(b) is amended to provide that, for the 2020-2021 school year, the 1,200 minutes of lab experience may be met through a combination of hands-on and simulated laboratory experience.
- Section 200.4(b) is amended to provide that, if schools are closed pursuant to an Executive Order of the Governor and students are learning remotely: (a) an individual psychological evaluation is only a required component for an initial evaluation when a school psychologist determines that it is necessary; and (b) an observation of a student is only required for an initial evaluation when the Committee on Preschool Special Education or Committee on Special Education determines that it is necessary.
- Classroom observations continue to be a required component of an initial evaluation, however, for students suspected of having a learning disability.
English Language Learners
- Section 154-2.2(y) is amended to provide that day(s) on which a school is closed for instructional purposes pursuant to an Executive Order(s) due to the COVID-19 crisis will not count toward the calculation of less than 12 months for identifying English language learner (ELL) students with inconsistent/interrupted formal education.
- Section 154-2.3(a)(2) is amended to provide that the individual interview for the identification process to determine if a student is an ELL is waived where a school district can document that video conferencing was used to remotely conduct an individual interview when a school is closed for instructional purposes pursuant to an Executive Order(s) due to the COVID-19 crisis. In these situations, qualified personnel will review the previously completed Home Language Questionnaire with the parent or person in parental relation.
- Section 154-2.3(b) is amended to provided that, during the 2020-2021 school year, the 45-day timeline for a school district to initiate a review of a determination made in the initial or reentry identification process for ELLs after receipt of a written request is extended to 65 days from the beginning of the 2020-2021 school year for any student who was either newly enrolled during the COVID-19 closures in the 2019-2020 school year, Summer 2020, or within the first 20 days of the 2020-2021 school year.
- Section 154-2.3(g) is amended to provide: (a) that for the 2020-2021 school year, the process for initial enrollment or reentry identification and parent notification, orientation, and placement will be completed so that a student who was either newly enrolled during the COVID-19 instructional closures in the 2019-2020 school year, Summer 2020, or the first 20 days of the 2020-2021 school year is placed in either a Bilingual Education or English as New Language program within 30 school days after commencement of the 2020-2021 school year for school districts with 150 or more ELLs or where ELLs comprise 10% or more of the district’s population; and (b) school districts with 149 or fewer ELLs or where ELLs constitute less than 10% of the district’s population may seek an exemption from the English language learner identification timeline for students who are newly enrolled during the COVID-19 closures in the 2019-2020 school year, Summer 2020, or the first 20 days of the 2020-2021 school year on an application form in a timeframe prescribed by the Commissioner; provided that the school demonstrates sufficient need for the exemption notwithstanding the size and percentage of its ELL population.
Academic Intervention Services
- Section 100.2(ee) is amended to provide that schools are not required to conduct the two-step identification process set forth in the regulations for identifying students to receive AIS for the 2020-21 school year due to the cancelation of State assessments for the 2019-20 school year. Rather, students can be identified for AIS based solely on the second step (District-developed procedures).
- Section 100.10(b) is amended to provide that for the 2020-21 school year, the home instruction program deadline for submission of the written notice of intention to instruct at home is extended from July 1 until August 1, 2020.
Health Screening Waiver
- Section 136.3(e) is amended to provide that hearing, vision and scoliosis screenings required to be provided by public schools are waived for the 2020-21 school year, unless the screening is otherwise deemed necessary.
- Section 156.3(f) is amended to provide that for the first school bus drill to be conducted during the first seven days of the Fall term of the 2020-2021 school year, any days during which school is closed to students pursuant to an Executive Order of the Governor for the COVID-19 crisis will not count toward the “first seven days of school.”
- Section 80-5.3 is amended to allow a superintendent of schools to assign certified teachers to teach a subject not covered by their certificate for a period not to exceed 10 classroom hours (previously, five classroom hours) a week when no certified or qualified teachers are available after extensive and documented recruitment during the State of emergency declared by the Governor due to the COVID-19 crisis.
- During the 2020-2021 school year, in extreme circumstances where there is an urgent need for a substitute teacher and a school district or BOCES has undertaken a good faith recruitment search for a properly certified candidate, Section 80-5.4 now allows the district or BOCES to employ a substitute teacher who does not hold a valid certificate, who is not working towards certification, but who holds a high school diploma or its equivalent, beyond the 40-day limit and for up to 90 days total in a school year (or more, in rare circumstances in accordance with the regulations).
- For school districts other than New York City, for the 2020-2021 school year, Section 151-1.3(d) is amended to provide that there must be one teacher assigned to each class for 3-year old students with a class size of seven children or less and that there must be one teacher assigned to each class for four year old students with a class size of eight children or less (previously, classes of up to 18 students were required to have one teacher and one paraprofessional; and classes of 19 or 20 students were required to have one teacher and two paraprofessionals).
Continuation of Prior Emergency Amendments
The Board of Regents also continued certain emergency regulations related to COVID-19 that were previously adopted at its April, May and June 2020 meetings through the 2020-2021 school year. SED anticipates that these amendments will be presented for permanent adoption at either the September or October 2020 Board of Regents’ meetings. The key amendments that relate to K-12 schools are summarized below.
Deadline to Adopt and Publish Data Security and Privacy Policies
- Section 121.5(b) is amended to extend the deadline to adopt and publish data security and privacy policies from July 1, 2020 until October 1, 2020.
- Section 100.10(e) is amended to exempt a student from the unit of study requirement if the student is unable to meet the requirement due to the State of Emergency declared by the Governor, provided that the student otherwise achieves the learning outcomes for the portion of the unit of study completed.
- Section 100.10(f) is amended to exempt a student from the instructional day and/or hour requirements if the student is unable to meet those requirements due to the State of Emergency, provided that the home instruction program provided the student with continuity of learning.
Child Abuse and Maltreatment Training Deadline
- The law provides that all persons employed on or after July 1, 2019by a school other than a school district or public school in titles equivalent to a teacher or administrator and all school bus drivers employed by any person or entity that contracts with a school to provide transportation services to children must complete two hours of coursework or training regarding the identification and reporting of child abuse and maltreatment provided by a SED-approved entity (unless the employee is already required to undergo training regarding the identification and reporting of child abuse and maltreatment). The deadline for these individuals to provide the school (or, for bus drivers, to the bus company) proof of completion of this training is extended from July 1, 2020 until the later of September 30, 2020 or within 30 days of employment.
Charter School Public Hearings
- Section 119.4 is amended to authorize a school district to conduct a public hearing within 30 calendar days of its receipt of an application for the formation of a new charter school, of an application for the renewal of an existing charter school or of a charter school’s request to revise its existing charter or by September 30, 2020. The hearing may be held remotely. The amendments require public comment to be solicited and accepted electronically or by mail and require districts to submit copies of all written records or comments from the hearing to the charter school’s charter entity and SED within 15 business days of the hearing.
- Section 175.5 is amended to permit public school districts, public schools and charter schools to operate for less than 180 days during the 10-month school year for any school day that is closed for instructional purposes pursuant to an Executive Order and waived from the 180-day requirement. The amendment permits missed instructional hours for any day that a school is closed and the 180-day requirement is waived pursuant to an Executive Order to count toward the minimum annual instructional hour requirements.
Appeals to the Commissioner
- Section 275.8 is amended to permit service of pleadings and supporting papers for Section 310 appeals by the alternative methods described in the amendment during the time period of movement restrictions or school closures implemented pursuant to an Executive Order.
- Section 151-1.3(b) is amended to: (a) waive the requirement that school districts must annually monitor and track prekindergarten program effectiveness for the 2019-2020 school year; and (b) to waive the annual report of the percentage of prekindergarten children making significant gains in language, cognitive and social skills for the 2019-2020 school year and the requirement to include that data in school performance reports.
- Section 151-1.4(a) is amended to permit prekindergarten programs to operate for less than the 180-day and 90-day requirements where the programs were scheduled to operate, but the school where the program operates is closed to students pursuant to an Executive Order.
- Section 125.1 is amended to permit SED staff who are unable to conduct their annual visit of nonpublic nursery schools and kindergartens because the schools are closed pursuant to an Executive Order to conduct the annual visit as soon as practicable after the schools reopen.
- Section 100.10(h) is amended to provide that students will be exempted from the annual assessment and alternative evaluation requirements for the 2019-20 school year where a student otherwise achieves the learning outcomes in accordance with their individualized home instruction plan (IHIP).
Part 83 and Part 87 Appeals
- Section 83.5 is amended to permit the Commissioner to excuse a late filing in an appeal to the Commissioner of a hearing officer’s determination of good moral character where the late filing is due to an Executive Order.
- Section 87.5 is amended to permit: (i) SED to excuse late submissions relating to due process procedures for prospective employees’ clearance for employment; and (ii) the Commissioner’s designee to excuse late submissions relating to appeals of SED’s determination to deny prospective school employees’ clearance for employment where the submissions are late due to an Executive Order.
- Section 87.2(k)(2) is amended to add the following to the definition of “prospective school employee”: any individual who will reasonably be expected to provide services that involve “online communication or interaction directly” with students under the age of 21 during the period of a school closure ordered pursuant to an Executive Order.
- Sections 200.7(b)(5) and 200.20(a)(6) are amended to provide that for State-approved private schools, State-operated schools, Special Act School Districts and State-supported schools and preschools, all days that a school is closed to students and the 180-day requirement is waived pursuant to an Executive Order are waived from the requirement to operate for at least 180 days.
- Section 200.5(j)(3)(xii) is amended to authorize impartial hearing officers to conduct special education due process hearings by video conference during a declared State of emergency issued by the Governor pursuant to an Executive Order.
- Section 200.5(j)(5)(i) is amended to allow hearing officers to extend cases up to 60 calendar days (rather than 30 calendar days) while schools are closed for instructional purposes pursuant to an Executive Order.
- Section 200.20(b)(6) is amended to provide that the 30-calendar day time period pursuant to which preschool providers must make up missed services does not include days that the school is closed for instructional purposes pursuant to an Executive Order.
- Sections 200.4(d) and 200.4(e)(1) are amended to provide that the 60 calendar-day time period from receipt of parental consent to evaluate to provide a student with a disability with special education programs and services and the 30 calendar-day time period from the board’s receipt of a CSE recommendation to place a student in an approved private school and the student’s placement in a private school do not include days that the school is closed for instructional purposes pursuant to an Executive Order.
Office of State Review
- A new section 279.15 is added to provide that a State Review Officer may authorize certain filings through electronic means during the COVID-19 State of Emergency.
- Sections 154-2.3(a)(5), (b), (f)(3), and (g)(1) are amended to exclude any day(s) where a school is closed for instructional purposes pursuant to an Executive Order from the following regulatory timelines: ELL identification process timeline; parental notification and information timeline, and the English as a New Language/Bilingual Education placement timeline.
- Section 154-2.3(h) is amended to provide a student with an exemption from the unit of study requirements where the student is unable to meet the requirements due to school closures due to an Executive Order and the student otherwise achieves the learning outcomes for the course of study.
- Section 154-2.3(l) is amended to provide that there is no ELL annual assessment for the 2019-2020 school year because the assessment was suspended due to the COVID-19 crisis.
Curriculum and Instruction
- Section 100.1 is amended to provide that a unit of credit may be earned where a student has not completed a unit of study due to the COVID-19 crisis but has otherwise achieved the standards assessed in the provided coursework.
- Sections 100.2 and 100.5 are amended to provide an exemption to the Regents examination, pathway assessment, alternative assessment, technical assessment and locally developed test requirements during the COVID-19 crisis (to allow students to meet their diploma requirements even though the June and August 2020 Regents examinations were canceled).
- Section 100.6 is amended to exempt students from the requirements for the career development and occupational studies commencement credential (CDOS) provided that the student is otherwise eligible to exit from high school and has otherwise demonstrated knowledge and skills relating to the CDOS learning standards.
- Sections 100.2(d)(1), 100.4(c), 100.5, and 100.6(b)(3)(iii) are amended to provide an exemption to students from the following unit of study requirements where a student is unable to meet the requirements due to schools being closed for instructional purposes pursuant to an Executive Order and where the student otherwise achieves the learning outcomes of the portion of unit of study completed: (a) units of student requirements in a language other than English; (b) units of study required for grades 7 and 8; (c) units of study leading to units of credit for a diploma; and (d) units of study relating to career development and occupational studies.
Alternative High School Equivalency Program
- Section 100.7 is amended to provide an extension to the June 30 application deadline for alternative high school equivalency preparation programs to be operated during the 2020-2021 school year. The application must now be submitted “as soon as practicable, but no later than 60 [calendar] days after expiration of an Executive Order of the Governor declaring a State of emergency for the COVID-19 crisis.”
- The federal government has approved SED’s application for a one-year waiver from provisions of the Every Student Succeeds Act (ESSA) pertaining to State assessments and school and district accountability determinations due to the COVID-19 crisis. Section 100.21 is amended, therefore, to provide that: (a) the Commissioner will not conduct a review of school and district performance using 2019-2020 school year results; (b) the accountability status of public schools and districts for the 2020-2021 school year will be the same as for the 2019-2020 school year; and (c) the 2018-2019 school year results will be used in any instance for which 2019-2020 school year results would have been used as part of the process of making 2021- 2022 school year accountability determinations.
Eligibility for Participation in Interschool Competition or Inclusive Athletic Activities
- Section 135.4(b)(2) is amended to clarify that schools and athletic associations; are not precluded from considering accommodation requests from an otherwise qualified student with a disability for participation in interschool competition or inclusive athletic activities because the student is not registered in the equivalent of three regular courses (as required by the regulation) as a result of the student’s education plan approved pursuant to Section 504 or the Americans with Disabilities Act.
Permanent Amendments Relating to Pupil Transportation
The amendments to Part 156 of the Commissioner’s Regulations outlined below, in addition to certain technical amendments, became effective as a permanent rule on July 29, 2020.
- Minimum Passing Score Threshold: School districts that procure transportation thorough contracted vendors using RFPs must now set a minimum passing score threshold to ensure that winning bidders meet certain safety and responsibility standards.
- Notice and Award of Transportation Contracts: The deadline to file transportation contracts awarded as a result of competitive bidding with the Commissioner of Education has been extended from within 30 calendar days to within 120 calendar days of the board of education’s approval of the contract. Contracts that cannot be awarded by August 1 must be filed with the Commissioner within five calendar days after approval with a written explanation for the delay.
- Definitions: “School bus driver” is now defined as any person who drives a school bus “for the purpose of transporting pupils to or from school or school activity.” “School bus attendant” is now defined as any person who is employed for the purpose of “attending to the special needs of a child based on his or her Individual Education Plan (IEP), to safely embark and disembark from a school bus,” and “for the purpose of assisting the school bus driver” (“school bus attendant” was previously defined only as “any person who is employed for the purpose of serving pupils with a disabling condition on a school bus”).
- Physical Examinations: Each school bus driver who is to be initially employed must have a physical examination within eight weeks prior to the beginning of service, as opposed to the previously required four weeks. Monitors and attendants must receive a physical exam within eight weeks prior to the beginning of their service each school year (previously, two weeks). The physical examination may be conducted by physician assistants, physicians and nurse practitioners (previously, only physicians and nurse practitioners could do so).
- New Character Requirement: All bus drivers, monitors and attendants must now be of good moral character and thoroughly reliable. When applying for one of these positions and at any other time as the Superintendent of Schools or other school chief administrator may determine, each applicant must provide at least three statements from unrelated persons pertaining to the applicant’s moral character and reliability. The Superintendent of Schools or other school administrator must approve each driver on an annual basis, attesting to the driver’s moral character and compliance with these requirements.
- Physical Performance Tests: The form demonstrating that a bus driver, monitor or attendant passed the required biannual physical performance test will be submitted electronically to the pupil transportation unit. The interval between physical performance tests for any individual may not exceed 25 months (previously, 24 months). Additional elements were also added to the respective physical performance tests. Finally, where a bus driver, monitor or attendant fails the physical performance test, no more than one re-examination per driver, monitor or attendant may be administered in the same day.
- School Bus Driver Safety Training: The amendments clarify that there are three types of driver safety trainings: pre-service safety training, basic course safety training and refresher safety training.
- Newly hired school bus drivers must now have four, instead of two, hours of initial instruction on school bus safety practices, which must include at least one hour of training for the transport of children with disabilities.
- During the first year of employment, school bus drivers must complete at least 30 hours of instruction in school bus safety practices, at least two of which must concern the special needs of transporting students with disabilities.
- The minimum of two hours of refresher school bus safety training must now include at least one hour relating to the special needs of students with disabilities.
- Monitor and Attendant Safety Training: The amendments clarify that there are three types of monitor and attendant school safety training: pre-service safety training, basic course safety training and refresher safety training. The pre-service safety training for newly hired monitors and attendants must now be four hours, instead of three, and must consist of instruction recommended by the “master instructor subcommittee of the Commissioner’s school bus driver instructor advisory committee.” The refresher safety training must now consist of two hours of instruction in school bus safety at least twice a year, and include at least one hour of instruction relating to the special needs of students with disabilities.
- Physical Presence of Trainer: A certified school bus instructor no longer needs to be physically present for all of the pre-service safety training, as long as the training is conducted under the general supervision of the certified instructor.
- Postponed Training Due to COVID-19: The basic course of instruction in school bus safety discussed above and outlined in the regulations may be postponed where the bus driver, monitor or attendant is unable to complete the instruction due to the State of Emergency related to the COVID-19 crisis.
- Instructor Certification: There are several revisions to the regulatory provisions governing the certification and training of school bus safety instructors and the master instructors who train the safety instructors.
- Bus Drills: Where the third of three school bus drills originally scheduled for between March 1 and April 30 of the 2019-2020 school year did not occur because of the COVID-19 crisis, those drills may be rescheduled and completed as soon as practicable.
- Administration of School Bus Drills and Mini Safety Drills: The drills on school buses must now be administered in accordance with SED’s Bus Safety Drill Guide and Compliance Form. Further, verbal mini safety school bus drills should be conducted by bus drivers prior to the beginning of every sports or activity trip. The mini safety drills are to be administered in accordance with SED’s Bus Mini Safety Drill Guide and Compliance Form.
- Student Drop Off: School bus drivers are required to instruct students who must cross a highway, street or private road, to do so at a distance of at least 15 feet in front of the vehicle (previously, 10 feet) so that the bus driver can see the student. The school bus driver must also keep the bus halted with the red signal lights flashing until the student reaches the opposite side of the highway, street or private road, and until the student is 15 feet from the bus and either off the highway, street or private road, or on a sidewalk.
- No Standing: Standing passengers will no longer be permitted on a bus, unless it is during the first 10 calendar days of school or unless it is due to a breakdown, crash or other unforeseen occurrence.
- Electronic Cigarettes: Drivers, monitors and attendants are prohibited from using electronic cigarettes while on a school bus.
- If you have any questions regarding these amendments to the Commissioner’s Regulations, please contact Lauren Schnitzer, Joshua Sprague or one of our other attorneys by calling (631) 694-2300.
- 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 2020
 All references to “Section ____” for the remainder of the memorandum will be to a Section in the Commissioner’s Regulations.