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Part 130 Substantial Equivalency Regulatory Flexibility Analysis

8 NYCRR Part 130
REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES AND LOCAL GOVERNMENT
(a) Small businesses:
The proposed amendment will not impose any additional compliance requirements on small businesses, and is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools.
(b) Local Government:
The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The proposed rule is necessary to direct LSAs to make determinations and recommendations to the Commissioner, as applicable, regarding the substantial equivalency of instruction in nonpublic schools in accordance with Education Law §§3204, 3205, and 3210. The proposed regulation recommends a timeline and procedure for substantial equivalency reviews and determinations. The proposed regulation recommends regular contact and communication between public and nonpublic schools. It also requires an LSA to consider the listed criteria when making a substantial equivalency determination or recommendation to the Commissioner. The proposed regulation also imposes an annual reporting requirement on LSAs.
1. EFFECT OF RULE:
The proposed rule applies to each of the 695 public school districts in the State.
2. COMPLIANCE REQUIREMENTS:
In New York State, the Compulsory Education Law requires children aged 6 to 16 (or 17) to attend “upon full time instruction” (Education Law§3205[1], [3]). The purpose of the Compulsory Education Law is to ensure that children are not left in ignorance, that they receive, from one source or another, instruction that will prepare them for their place in society.
Since 1895, New York’s Compulsory Education Law has required that, if a child of compulsory attendance age “attend[s] upon instruction elsewhere than at a public school, such instruction shall be at least substantially equivalent to the instruction given to children of like age at the public school of the city or district in which such child resides.” (Education Law of 1894, ch 671, §3).
Despite various statutory amendments and reenactments over the years, today, the Compulsory Education Law still uses largely the same language regarding substantial equivalency. Specifically, Education Law §3204(2) provides, “Instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.”
Likewise, Education Law §3210(2) provides that a student who attends “elsewhere than at a public school . . . shall attend for at least as many hours, and within the hours specified therefor.” However, a student “may be permitted to attend for a shorter school day or for a shorter school year or for both, provided, in accordance with the regulations of the state education department, the instruction he receives has been approved by the school authorities as being substantially equivalent in amount and quality to that required by the provisions of [the Compulsory Education Law]”, which as noted above, require that substantial equivalence be determined as it relates to the instruction “given to the children of like age at the public school of the city or district in which such child resides.” (Education Law §§3210[(2]); 3204[(2]). The Education Law defines “school authorities” as the board of education or corresponding officers of a school district. (Education Law §2[12]).
In July 2015, it was widely reported in the media that a complaint had been filed with the New York City Department of Education (“NYCDOE”) by parents, former students and former teachers expressing concerns that 39 Yeshivas provided only limited secular education and were failing to meet the “substantial equivalence” standard mandated by state law. Thereafter, NYCDOE commenced an investigation. Based on the extensive media coverage of this issue, the Department received more and more inquiries and questions from both LSAs and nonpublic schools relating to the Department’s guidance on substantial equivalence.
A class action lawsuit was also filed in November 2015 against the Board of Regents, the Department, and the Commissioner, as well as the East Ramapo Central School District, its superintendent and four different Yeshiva schools and their principals/administrators in East Ramapo. In that case, the plaintiffs alleged, among other things, that, through the alleged action or inaction of all defendants, they were denied their constitutional right to a “sound basic education” and to “substantially equivalent” instruction under Education Law §3204.
As a result of the events described above, at a December 2015 meeting, Department staff provided the P-12 Education Committee of the Board of Regents with an overview of nonpublic schools in New York State, which included the constitutional right of parents to send their students to nonpublic schools, the Compulsory Education Law and the right of students in nonpublic schools to be provided with substantially equivalent instruction.
In April 2016, the State’s Enacted Budget included funding for the creation of a new State Office of Religious and Independent Schools (“SORIS”) within the Department, which would be responsible for providing guidance and assistance to the nonpublic school community.
Based on the events described above, the volume of questions and concerns in the field, and the media reports, pursuant to the Commissioner’s statutory obligation under Education Law §305, the Commissioner charged SORIS with reviewing its existing guidance and providing recommendations on enhancements and/or updates to the guidance that could be made to assist the field in making these determinations based on current laws and regulations.
In April 2018, the Legislature amended the Education Law relating to the substantial equivalence determination for nonpublic schools that met the following criteria – namely, (1) they must be a non-profit corporation; (2) they must have a bilingual program; (3) elementary and middle schools must have an educational program that extends from no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five-thirty p.m. for grades four through eight on the majority of weekdays; and (4) secondary schools must have been established for pupils in high school who have graduated from an elementary school that provides instruction as described in Education Law §3204 and have an educational program that extends from no later than nine a.m. until no earlier than six p.m. on the majority of weekdays. For these schools, the amendment: (i) shifts ultimate responsibility for making the final substantial equivalence determination to the Commissioner of Education; and (ii) requires the Commissioner to consider, without limitation, additional enumerated factors in making the final substantial equivalence determination (see Education Law §3204[2][ii]-[iii], [v]).
The Department undertook a long, consultative process to update its guidance on substantial equivalency for approximately two years. The Department issued updated substantial equivalency guidance on November 20, 2018. In March 2019, three separate lawsuits were filed in Albany County Supreme Court challenging various aspects of the updated guidance. In response to an April 2019 ruling from the court which struck down the November 2018 guidance and asserting that the process detailed in State Administrative Procedure Act (“SAPA”) must be followed, the Department has drafted the proposed regulations relating to substantial equivalence of instruction in nonpublic schools.
The purpose of the proposed regulation is to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The intent of the substantial equivalency process is to ensure that all students receive the education to which they are entitled under the law. The substantial equivalency process must be a collaborative effort between LSAs and nonpublic schools.
The proposed regulation requires LSAs to make substantial equivalency determinations for all nonpublic schools within their geographical boundaries, except registered high schools, state-approved private special education schools, state-operated and state-supported schools, which are already subject to Department review, and nonpublic schools for which the Commissioner is required to make a substantial equivalency determination pursuant to Education Law §3204(2)(ii)-(iii). Pursuant to Education Law §3204(2)(ii)-(iii), the Commissioner is responsible for making final determinations on substantial equivalency reviews for nonpublic schools that meet the enumerated statutory criteria.
For schools that meet the statutory criteria for a Commissioner’s determination, LSAs must review such schools for substantial equivalency and forward a recommendation and supporting documentation to the Commissioner for his/her final determination.
The Department is proposing the following recommended timelines:
• New nonpublic schools that open on or after the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made within three years of when the nonpublic school commences instruction and regularly thereafter
• Existing nonpublic schools that are operating on the effective date of the proposed regulation must be reviewed and all recommendations and final determinations should be made by the end of the 2022-2023 school year or as soon as practicable thereafter and regularly thereafter
The proposed regulation also recommends regular contact and communication between public and nonpublic schools, in an effort to keep each other informed of updated information, such as changes in leadership, their instructional program, school building location changes, grade levels served, and/or any other relevant information that the LSAs may need to ensure that the students in these schools are receiving instruction that is at least substantially equivalent to that of public school students.
The proposed regulation states that substantial equivalency reviews and determinations should be conducted in a flexible and inclusive manner and should be the result of a collaboration between the LSA and the nonpublic school. Five core principles, defined in the regulation, are essential to the review process: objective, mindful, sensitive, respectful, and consistent.
The proposed regulation sets forth a recommended procedure for substantial equivalency reviews. Prior to commencing a substantial equivalency review, the LSA, after consulting with the nonpublic school, shall determine whether the Commissioner is responsible for making the final determination pursuant to Education Law §3204(2)(ii) or (iii), or whether the LSA is responsible for making such final determination. LSAs and nonpublic schools may contact SORIS for technical assistance at any time to assist them in making this determination. Except for registered nonpublic high schools, state-approved private special education schools, state-operated schools and state supported schools, the superintendent or his/her designee (which may include a BOCES, where authorized under §1950 of the Education Law) should review all nonpublic schools in the LSA’s geographic boundaries, including nonpublic schools that meet the criteria for a Commissioner’s determination, and, in conducting such reviews, the LSA should use the criteria outlined in the proposed regulation. For schools that meet the criteria for a Commissioner’s final determination, the LSA conducts the review using the appropriate criteria and makes a recommendation to the Commissioner for his/her final determination.
The proposed regulation recommends that a substantial equivalency review should be conducted by a team of at least two individuals, including individuals with expertise in instruction and the ability to communicate well with the nonpublic school community. Prior to the review, the team should contact the nonpublic school to introduce themselves and their purpose and the team should review relevant documentation submitted by the nonpublic school, which may occur remotely or on site, and conduct a site visit.
The proposed regulation sets forth a recommended procedure for LSAs to render determinations regarding substantial equivalency, including written notification to nonpublic schools and notification to SORIS. If there are concerns about the substantial equivalency of the instruction provided at a nonpublic school, the proposed regulation recommends, among other things, that the LSA and nonpublic school work collaboratively to develop a clear plan and timeline, including benchmarks and targets, for attainting substantial equivalency in an amount of time that is reasonable given the concerns identified in the review. SORIS may be of assistance in this process. The proposed regulation indicates that services must continue to nonpublic school students during any period for attaining substantial equivalency.
If, after the consultation described above, the concerns identified in the LSA review and preliminary determination are addressed appropriately, the following steps should occur:
• the superintendent or his/her designee should inform the board of education in writing that the nonpublic school appears to be at least substantially equivalent. Although the board of education is not required to pass a formal resolution if it determines that the nonpublic school’s program is satisfactory, this determination should be a matter of public record;
• the LSA should send written notification to the administration of the nonpublic school and provide a letter for the nonpublic school to distribute to the parents or persons in a parental relationship to the students who attend the nonpublic school;
• the LSA must notify SORIS of the positive determination in a form and manner prescribed by the Commissioner; and
• the superintendent or designee should share the positive finding with superintendents of school districts in which the nonpublic school’s students reside.
• If, after the consultation described above, the concerns cannot be remedied or if the nonpublic school does not make the changes necessary to achieve substantial equivalency, the following steps should occur:
• The superintendent or designee should notify the board of education that the nonpublic school does not appear to be substantially equivalent, and the board of education will vote and make a final determination in a regularly scheduled, public board meeting.
• The LSA should notify nonpublic school administration of the date that the board of education will consider the matter of substantial equivalency
• The nonpublic school should be provided an opportunity to present additional relevant materials and/or a written statement to the board of education prior to its determination
• The LSA must provide written notification to the administration of the nonpublic school and the parents or persons in parental relationship to students attending the nonpublic school of such determination and that the students will be considered truant if they continue to attend that school.
• The board must provide a reasonable timeframe, giving due consideration to the statutory and regulatory timeframes for services to nonpublic school students, for parents or persons in parental relationship to identify and enroll their children in a different appropriate educational setting, consistent with Education Law §3204.
• SORIS must be notified of the negative determination in a manner prescribed by the Commissioner.
• Services to the nonpublic school and students (e.g. textbooks, special education, transportation, etc.) must continue until the end of the reasonable timeframe.
• Student records shall be managed consistent with section 104.2 of this Title
Additionally, the proposed regulation requires LSAs to report the following information to SORIS by September 1, 2020 and each September 1 thereafter:
• List of all nonpublic schools within the LSA’s geographical boundaries
• List of all nonpublic schools in LSA’s boundaries that are state-approved private special education schools, state-operated schools, and state-supported schools
• List of all the nonpublic schools in the LSA’s boundaries that are registered high schools pursuant to 8 NYCRR 100.2(p)
• List of all the nonpublic schools that are in the LSA’s boundaries that are not state-approved private special education schools, state-supported schools, state-operated schools, or registered high schools and are subject to Commissioner’s review pursuant to Education Law §3204(2)(ii)-(iii)
• A list of the remaining nonpublic schools identified in the LSA’s boundaries for which the LSA is responsible for making the final substantial equivalency determination
The proposed regulation also requires that, commencing on September 1, 2024 and each September 1 thereafter, LSAs must submit an attestation that they:
• Made a final substantial equivalency determination for each nonpublic school in their geographic area subject to their final determination, and
• Forwarded a substantial equivalency recommendation to the Commissioner for each nonpublic school in their geographic area that is subject to a final determination by the Commissioner
The proposed regulation includes procedures for the Commissioner’s determination of substantial equivalency. For nonpublic schools for which the Commissioner is required to make a final determination, the LSA must conduct a review and forward its recommendation regarding substantial equivalency and all relevant documentation to support its recommendation to the Commissioner. The LSA should retain a complete and accurate copy of its recommendation and related materials it submits to the Commissioner. The Commissioner will review the materials and recommendation submitted by the LSA. The Commissioner will provide the nonpublic school with an opportunity to present additional relevant materials and/or a written statement prior to rendering a determination. The proposed regulation sets forth procedures for when a school subject to a Commissioner’s determination appears not to be substantially equivalent and for when the Commissioner renders a positive or negative substantial equivalency determination. Such procedures are similar to those described above for LSAs to follow when making a final determination.
The proposed regulation provides that, when making a substantial equivalency determination, an LSA, and the Commissioner, when he/she is responsible for making the final determination, must consider the following criteria:
• Instruction given only by a competent teacher
• English is the language of instruction for common branch subjects
• Students who have limited English proficiency are provided with instructional programs enabling them to make progress toward English language proficiency
• If a nonpublic school has been accredited within the last five years, the LSA representatives should take the accreditation materials into account as part of the substantial equivalency review process
• Whether the instructional program in the nonpublic school incorporates instruction in the following subjects:
o during grades 1 through 6, mathematics, including arithmetic, science, and technology (concepts of science, mathematics, social science, and language arts in a hands-on, systems-based approach to problem solving that guides students in the understanding, design, and development of systems, devices, and products to serve human needs and wants); English language arts, including reading, writing, listening, and speaking; social studies, including geography and United States history; the arts; career development and occupational studies; health education, physical education, and family and consumer sciences. Instruction in these subjects may be integrated or incorporated into the syllabus or syllabi of other courses;
o during grades 7 and 8, mathematics (two units of study); English language arts (two units of study); social studies (two units of study); science (two units of study); career and technical education, wherein the unit of study requirement may be initiated in grade 5 (one and three-fourths units of study); physical education (similar courses of instruction to those required in public schools pursuant to section 135.4 of this Title); health education (one-half unit of study); visual arts (one-half unit of study); music (one-half unit of study); library and information skills, which may in incorporated or integrated into any other subjects (the equivalent of one period per week in grades 7 and 8); career development and occupational studies, which may be incorporated or integrated into any other subjects;
o during grades 9 through 12, instruction in English (four units of study); social studies (four units of study); mathematics (three units of study); science (three units of study); health (one-half unit of study); physical education (two units of study); the arts (one unit of study);
• Whether the nonpublic school meets other statutory instructional requirements, including:
o for all students over eight years of age, a similar course of instruction to the course of instruction in patriotism and citizenship required in public schools pursuant to Education Law §801(1) and section 100.2(c)(1) of this Title;
o for all students grades 8 and higher, a similar course of instruction to the course of instruction in the history, meaning, significance, and effect of the provisions of the Constitution of the United States and the amendments thereto, the Declaration of Independence, and the Constitution of the State of New York and the amendments thereto required in public schools pursuant to Education Law §801(2) and section 100.2(c)(3) of this Title;
o for all students over the age of eight, a similar course of instruction to the course of instruction in the development of character, citizenship, physical fitness, health, and the worthy use of leisure required in public schools pursuant to Education Law §803(4) and section 100.2(c)(4) of this Title. Pursuant to Education Law§3204(5), a student may, consistent with the requirements of public education and public health, be excused from such study of health and hygiene as conflicts with the religion of the student’s parents or guardian; provided that such conflict must be certified by a proper representative of their religion as defined by Religious Corporations Law §2;
o for all students, instruction in health education relating to mental health, alcohol, drug, and tobacco abuse and the prevention and detection of certain cancers as required by Education Law §§804, 3204(5). Pursuant to Education Law§3204(5), a student may, consistent with the requirements of public education and public health, be excused from such study of health and hygiene as conflicts with the religion of the student’s parents or guardian; provided that such conflict must be certified by a proper representative of their religion as defined by Religious Corporations Law §2.
o for all students, a similar course of instruction to the course of instruction in highway safety and traffic regulation required in public schools by Education Law §806 and section 100.2(c)(5) of this Title;
o for all students in grades 1 through 8, instruction in New York State history and civics as required by Education Law §3204(3) and section 100.2(c)(7) of this Title;
o for all students, instruction in fire drills, fire and arson prevention, injury prevention and life safety education pursuant to Education Law §§807, 808 and section 100.2(c)(6) of this Title;
o for students in senior high school, instruction in hands-only cardiopulmonary resuscitation and the use of an automated external defibrillator pursuant to Education Law §305(52) and section 100.2(c)(11) of this Title;
• Pursuant to Education Law §3204 for nonpublic elementary and middle schools subject to a Commissioner’s final determination pursuant to Education Law §3204(2)(ii), the LSA, when making a recommendation and the Commissioner in his/her final determination, must take into consideration whether the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students, taking into account the entirety of the curriculum, over the course of elementary and middle school; including instruction in:
o English that will prepare pupils to read fiction and nonfiction text for information and to use that information to construct written essays that state a point of view or support an argument;
o mathematics that will prepare pupils to solve real world problems using both number sense and fluency with mathematical functions and operations;
o history that will prepare pupils to interpret and analyze primary text to identify and explore important events in history, to construct written arguments using the supporting information they get from primary source material, demonstrate an understating of the role of geography and economics in the actions of world civilizations;
o an understanding of civics and the responsibilities of citizens in world communities;
o science by learning how to gather, analyze and interpret observable data to make informed decisions and solve problems mathematically, using deductive and inductive reasoning to support a hypothesis, and how to differentiate between correlational and causal relationships.
• For nonpublic high schools that meet the criteria for a Commissioner’s final determination pursuant to Education Law §3204(2)(iii), the Commissioner and the LSA making a recommendation to the Commissioner will take into consideration whether the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students, the outcomes of which, taking into account the entirety of the curriculum, result in a sound basic education.
The proposed regulation also sets forth the rights and responsibilities of parents and persons in a parental relationship to nonpublic school students, LSAs and nonpublic school leaders related to substantial equivalency determinations.
3. PROFESSIONAL SERVICES:
The rule imposes no additional professional service requirements.
4. COMPLIANCE COSTS:
(a) Costs to State government: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
(b) Costs to local government: No additional costs are imposed on local governments beyond those imposed by law. The proposed rule is necessary to provide guidance to local school authorities (LSAs) to assist them in fulfilling their responsibilities under Education Law §§3204, 3205, and 3210 in determining whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction being provided to students of like age and attainments at the public schools. The procedures and timelines set forth in the regulation for substantial equivalency reviews are merely recommendations to local school authorities and do not impose any requirements on LSAs beyond those imposed by law. Moreover, the Department developed a CO-SER by which an LSA may engage with a board of cooperative educational services to conduct substantial equivalency reviews, which may be used to offset any costs incurred by local governments to fulfill their statutory obligations under Education Law §§3204, 3205, and 3210.
The Department expects that any annual reporting requirements in the regulation would be necessary for the LSA to fulfill its existing statutory obligations.
(c) Costs to private regulated parties: No additional costs are imposed on regulated private parties.
(d) Costs to regulating agency for implementation and continued administration of this rule: The proposed regulation does not impose additional costs on the State beyond what is already required by law.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The rule imposes no technological requirements on school districts. Costs are discussed under the “Compliance Costs” section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to ensure that students who attend nonpublic schools receive substantially equivalent instruction to that provided in the public schools pursuant to Education Law §3204. The Department engaged in a consultative process for over two years to produce the guidance that was released in November 2018. The proposed regulations make the following major changes to the updated guidance:
• Recommends that new schools be reviewed within three years of operation and that existing schools by reviewed by the end of the 2022-23 school year or as soon as practicable thereafter and regularly thereafter;
• Provides additional due process to the nonpublic school throughout the substantial equivalency process
• Focuses on providing instruction in subject areas required by law rather than specific state learning standards.
• Explicitly allows for integrated curriculum that delivers content by incorporating more than one subject into the content of a course;
• Requires LSAs to annually file a list t of nonpublic schools subject to their review and Commissioner’s review by Sep. 1, 2020 and each September 1 thereafter; and
• Requires LSAs to file an annual update regarding the status of substantial equivalency reviews by Sep. 1, 2024 and each September 1 thereafter.
Thus, many alternatives were considered in the development of the proposed regulation. Because the statutory requirements upon which the proposed rule is based applies to the instruction received by all New York students elsewhere than at a public school, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.
7. LOCAL GOVERNMENT PARTICIPATION:
Comments on the proposed rule have been solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.