STATE OF NEW YORK
________________________________________________________________________
4205
2013-2014 Regular Sessions
IN ASSEMBLY
February 1, 2013
___________
Introduced by M. of A. CAMARA, WEPRIN, BARRON, STEVENSON, ESPINAL,
ROBINSON, HEASTIE, ABBATE, PERRY, PEOPLES-STOKES, CRESPO, COOK, SCAR-
BOROUGH, JACOBS, CASTRO, GIBSON, ROBERTS, MILLMAN, WRIGHT, CLARK,
RAMOS, BENEDETTO, CYMBROWITZ, BOYLAND -- Multi-Sponsored by -- M. of
A. ARROYO, BARRETT, KEARNS, V. LOPEZ -- read once and referred to the
Committee on Education
AN ACT to amend the education law, in relation to providing supplemental
educational services to students from low-income families who are
enrolled in schools that have failed to make adequate yearly progress
for two consecutive years
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. The legislature hereby finds and
2 declares it necessary to preserve and continue supplemental educational
3 services in the state that provide low-income students with tutoring
4 free of charge. This program empowers parents to take an active role in
5 the education of their children, as it is parents who decide which
6 state-approved tutoring provider they will send their children to.
7 Parents are engaged in every aspect of the interventions, and it is the
8 parents, rather than the school district, making decisions for their
9 children that will help their children catch up to their peers.
10 Currently 87,406 low-income students attend failing schools in this
11 state and receive supplemental educational services tutoring. The
12 program is available to all low-income students attending schools that
13 fail to meet Federal Adequate Yearly Progress for consecutive years.
14 These are schools that the United States Department of Education deems
15 as failing to meet the basic educational needs of their students. Nearly
16 66% of children eligible for the program in this state elect to take
17 part in the tutoring program. The program provides low-income parents
18 with a range of educational opportunities outside of the normal school
19 day that help their children improve academically.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07464-01-3
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1 Supplemental educational services is a highly effective way to provide
2 one-to-one or small group instruction to disadvantaged students. Studies
3 by the United States Department of Education conclude that the tutoring
4 programs lead to significant gains in student achievement in reading and
5 math.
6 The legislature hereby finds and declares that supplemental educa-
7 tional services are a proven way to help improve student performance and
8 these services must be maintained while the state is in the process of
9 creating and implementing systemic reforms to improve student perform-
10 ance and ensure students graduate college- and career-ready. At a time
11 when the state is looking to reform its education system, disadvantaged
12 students struggling individually with academics should not be left with-
13 out services because they attend a school that has been continuously
14 failing.
15 § 2. The education law is amended by adding a new section 3209-b to
16 read as follows:
17 § 3209-b. Supplemental educational services. 1. For the purposes of
18 this section, the following terms shall have the following meanings:
19 a. "Approved provider tutoring" shall mean a provider approved by the
20 commissioner pursuant to the provisions of this section for purposes of
21 inclusion on the department's list of approved supplemental educational
22 services providers.
23 b. "Eligible applicant" shall mean a school district that is not
24 currently identified for improvement, corrective action or restructuring
25 pursuant to section 20 U.S.C. section 6316(b)(1)(A), 20 U.S.C. section
26 6316(b)(7) or section 1116(b)(8), 20 U.S.C. section 6316(b)(8), respec-
27 tively, or a non-profit entity or a for-profit entity authorized to
28 provide the proposed services in the state, including, but not limited
29 to, a charter school, nonpublic school, board of cooperative educational
30 services or county vocational education and extension board.
31 c. "Eligible student" shall mean an eligible child, as defined in
32 section 20 U.S.C. section 6316(e)(12)(A) who is entitled to receive
33 supplemental educational services, subject to the provisions of section
34 20 U.S.C. section 6316(b)(10)(C).
35 d. "Academic year" shall mean the period commencing on September first
36 and ending on August thirty-first of the next succeeding calendar year;
37 and
38 e. "Supplemental educational services" shall have the same meaning as
39 set forth in 20 U.S.C. section 6316(e)(12)(C).
40 2. A school district shall make supplemental educational services
41 available to eligible students who attend a school that is in school
42 improvement status, a school in corrective action status or a school in
43 restructuring status.
44 3. The per pupil spending limit that a school district shall provide
45 for supplemental educational services shall be the lesser of the follow-
46 ing:
47 a. the amount of the school district's allocation under title I, part
48 A, subpart 2 of the No Child Left Behind Act, divided by the number of
49 children from families below the poverty level counted under section 20
50 U.S.C. 6333(c)(1)(A); or
51 b. the actual cost of the supplemental educational services provided
52 to each eligible student.
53 4. a. An eligible applicant that seeks to become an approved provider
54 shall submit to the commissioner a written application in a form and
55 within the time prescribed by the commissioner.
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1 b. The commissioner shall approve an eligible applicant for inclusion
2 on the department's list of approved supplemental educational service
3 providers, upon the commissioner's determination that its application
4 satisfies each of the following criteria:
5 (i) the applicant has a demonstrated record of effectiveness in
6 increasing student academic achievement in English language arts
7 (including reading) and/or mathematics;
8 (ii) the instruction to be provided and content to be used are aligned
9 with state learning standards in the areas of English language arts
10 (including reading) and mathematics;
11 (iii) instruction will be provided under the general supervision of a
12 teacher certified pursuant to article sixty-one of this title;
13 (iv) the supplemental educational services are of high quality,
14 research-based and specifically designed to increase the academic
15 achievement of eligible students on the required state assessments in
16 the areas of English language arts (including reading) and mathematics
17 and to attain proficiency in meeting state learning standards in those
18 areas;
19 (v) the applicant will provide appropriate accommodations and supports
20 to students with disabilities to ensure such students benefit from
21 supplemental educational services;
22 (vi) the supplemental educational services will be provided outside
23 the regular school day including, but not limited to, before or after
24 school, weekend or summer sessions;
25 (vii) letters of reference from parents, schools and/or other appro-
26 priate parties who are current or former recipients of the provider
27 services are provided;
28 (viii) the applicant will require that all individuals employed by, or
29 otherwise associated with, the applicant who will have direct contact
30 with eligible students shall be subject to the fingerprint and criminal
31 history record check requirements contained in law including, but not
32 limited to, this chapter;
33 (ix) the applicant is fiscally sound and will be able to fulfill its
34 agreement to provide services to the eligible child and the school
35 district;
36 (x) supplemental educational services instruction and content are
37 secular, neutral and nonideological;
38 (xi) the applicant will comply with all applicable federal, state and
39 local health, safety and civil rights laws;
40 (xii) the applicant will assure that supplemental educational services
41 are available in locations accessible to individuals with disabilities,
42 to the extent required by section 504 of the Rehabilitation Act of 1973
43 (29 U.S.C. section 794) and the Americans with Disabilities Act (42
44 U.S.C. section 12101 et seq.); and
45 (xiii) the applicant shall provide additional assurances that:
46 (1) the instruction and content used are consistent with the instruc-
47 tion provided and content used by the school district and state, and are
48 aligned with state learning standards in English language arts (includ-
49 ing reading) and/or mathematics,
50 (2) eligible students with disabilities and eligible students with
51 limited English proficiency will have equal access to services offered
52 by the applicant,
53 (3) the applicant will not disclose to the public the identity of any
54 student who is eligible for or receiving supplemental educational
55 services without the written permission of the parents of the student,
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1 (4) the applicant will not impose additional admission criteria on
2 eligible students,
3 (5) the applicant will provide parents and teachers of eligible
4 students receiving supplemental educational services and the appropriate
5 school district with information on the progress of such students in
6 increasing achievement in a format, and to the extent practicable, in a
7 language or other mode of communication that such parents can under-
8 stand,
9 (6) the applicant has adequate insurance for liability, property loss
10 and personal injury involving students receiving supplemental educa-
11 tional services from the applicant, and
12 (7) the applicant shall not make any offer or advertisement of
13 rewards, gifts, incentives, gratuities, payments or compensation of any
14 kind to parents, students, school districts, school district staff
15 and/or school staff for purposes of or tending to have the effect of,
16 soliciting enrollment, encouraging parents to switch providers once
17 students are enrolled, and/or attempting to influence parents, students,
18 school districts, school district staff and/or school staff; provided
19 that nothing herein shall be deemed to prohibit the use, as part of the
20 instructional program, of nominal rewards or incentives.
21 c. Where an applicant uses alternate methods for delivery of services,
22 which may include online, internet-based approaches, as well as other
23 distance-learning technologies, the provision of equipment, including
24 computers, to students to use or keep as a means of receiving such
25 supplemental educational services, must be approved by the commissioner
26 as part of the applicant's instructional program.
27 5. a. Approval for inclusion on the department's list of approved
28 supplemental educational services providers shall be withdrawn from a
29 provider for good cause including, but not limited to, a determination
30 by the commissioner that the provider:
31 (i) is in noncompliance with one or more of the criteria for approval
32 set forth in paragraph b of subdivision four of this section; and/or
33 (ii) has failed for two consecutive years to contribute to increasing
34 the academic proficiency of students receiving supplemental educational
35 services from such provider.
36 b. Termination of provider approval shall be conducted in accordance
37 with the following procedures:
38 (i) The commissioner or his or her designee shall notify the provider
39 in writing of the intent to terminate approval at least thirty calendar
40 days prior to the effective date of the termination, including a list of
41 the identified deficiencies and/or violations of state or federal laws
42 or regulations that are believed to exist.
43 (ii) The provider may reply in writing within ten calendar days of
44 receipt of the commissioner's notification, addressing the commission-
45 er's statement of reasons, indicating whether deficiencies and/or
46 violations exist, what steps have been taken to correct conceded defi-
47 ciencies and/or violations, and the time period and steps by which defi-
48 ciencies and/or violations will be corrected. If no reply is received,
49 termination and removal from the list will become effective thirty
50 calendar days from the date of receipt of the commissioner's notifica-
51 tion.
52 (iii) Within three business days of receipt of the commissioner's
53 notification, the provider may request oral argument before the commis-
54 sioner or his or her designee.
55 (iv) After consideration of any written response and of any oral argu-
56 ment, a determination shall be made whether approval shall be termi-
A. 4205 5
1 nated. Notice of such determination shall be provided in writing to the
2 provider.
3 c. Notwithstanding the provisions of paragraph b of this subdivision,
4 the commissioner may issue an emergency order immediately suspending the
5 provision of services under this section, pending a final determination
6 of the provider's approval status, upon the commissioner's determination
7 that an immediate threat exists to the health and/or safety of students.
8 6. A school district that is required to arrange for the provision of
9 supplemental educational services with an approved provider shall:
10 a. notify parents of eligible students annually, in a format and, to
11 the extent practicable, in a language that such parents can understand,
12 of:
13 (i) the availability of supplemental education services; and
14 (ii) the identity of approved providers of those services that are
15 within the area served by the school district, including any approved
16 providers of technology-based or distance learning supplemental educa-
17 tional services, or are reasonably available in neighboring school
18 districts, together with a brief description of the services, qualifica-
19 tions and demonstrated effectiveness of each such provider;
20 b. if requested, assist parents in choosing an approved provider;
21 c. ensure that if the amount of funds available pursuant to the No
22 Child Left Behind Act to provide supplemental educational services is
23 insufficient to provide such services to each eligible student whose
24 parents request the services, priority is given to providing the
25 services to the lowest achieving eligible students;
26 d. apply fair and equitable procedures for serving eligible students
27 if the number of spaces at approved providers is not sufficient to serve
28 all such students;
29 e. not disclose to the public the identity of any student who is
30 eligible for, or receiving, supplemental educational services without
31 the written permission of the parents of the student;
32 f. ensure that eligible students with disabilities under the Individ-
33 uals with Disabilities Education Act and eligible students who are indi-
34 viduals with disabilities covered by section 504 of the Rehabilitation
35 Act of 1973 (29 U.S.C. section 794) receive appropriate supplemental
36 educational services and accommodations in the provision of those
37 services;
38 g. ensure that eligible limited English proficient students receive
39 appropriate supplemental educational services and language assistance in
40 the provision of those services;
41 h. contact providers selected by the parents and enter into a contrac-
42 tual agreement with each such provider that includes:
43 (i) a statement of specific achievement goals for each eligible
44 student based upon such student's specific educational needs,
45 (ii) a description of how each such student's progress will be meas-
46 ured,
47 (iii) a timetable for improving achievement,
48 (iv) for eligible students with disabilities under the Individuals
49 with Disabilities Education Act and eligible students who are individ-
50 uals with disabilities covered by section 504 of the Rehabilitation Act
51 of 1973 (29 U.S.C. section 794), the goals, method of measurement and
52 timetable set forth in the agreement must be consistent with such
53 student's individualized education program pursuant to the Individuals
54 with Disabilities Education Act or the student's section 504 plan, where
55 applicable,
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1 (v) the initiation date, frequency and duration of services to be
2 provided,
3 (vi) the location where services will be provided,
4 (vii) a description of how each eligible student's parents, teachers
5 and the local school district will be regularly informed, at least quar-
6 terly, of the student's progress,
7 (viii) a provision for termination of the agreement if the provider is
8 unable to meet the goals and timetables,
9 (ix) a provision that the term of the agreement shall not exceed the
10 end of the academic year in which the student first received such
11 services,
12 (x) a provision that the agreement will terminate immediately upon the
13 provider's removal from the department's list of approved supplemental
14 educational services providers, pursuant to subdivision five of this
15 section,
16 (xi) payment provisions based on eligible student attendance and
17 delivery of supplemental educational services,
18 (xii) an assurance from the provider that the identity of any student
19 who is eligible for or receiving, supplemental educational services will
20 not be disclosed without the written permission of the parents of the
21 student,
22 (xiii) a description of the program to be used,
23 (xiv) the experience and qualifications of staff responsible for the
24 delivery of the instructional program, including an assurance that
25 instruction will be provided under the general supervision of a teacher
26 certified pursuant to article sixty-one of this title,
27 (xv) provisions that subject all individuals employed by, or otherwise
28 associated with, the provider who will have direct contact with
29 students, to the fingerprint and criminal history record check require-
30 ments contained in law, including, but not limited to, this chapter,
31 (xvi) a requirement that the provider submit to the school district,
32 annually on or before September thirtieth, a final written report in a
33 form prescribed by the commissioner that summarizes the progress of
34 eligible students provided with supplemental educational services during
35 the preceding academic year, pursuant to its agreements with the local
36 educational agency, and
37 (xvii) a provision stating: The provider is prohibited from making any
38 offer or advertisement of rewards, gifts, incentives, gratuities,
39 payments or compensation of any kind to parents, students, school
40 districts, school district staff and/or school staff for purposes of or
41 tending to have the effect of soliciting enrollment, encouraging parents
42 to switch providers once students are enrolled, and/or attempting to
43 influence parents, students, school districts, school district staff
44 and/or school staff; provided that nothing herein shall be deemed to
45 prohibit the use, as part of the instructional program, of nominal
46 rewards or incentives as defined in section 120.4(f)(9)(xvii) of title
47 eight of the New York state codes, rules and regulations. For purposes
48 of this subparagraph, a nominal reward or incentive is defined as an
49 award or incentive that:
50 (1) does not exceed a total value of twenty-five dollars per student
51 per year,
52 (2) is directly linked to documented meaningful attendance benchmarks
53 and/or completion of assessment and program objectives, and
54 (3) is approved by the commissioner as part of the provider's instruc-
55 tional program;
56 i. monitor the following:
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1 (i) the quality and effectiveness of the services offered by each
2 approved provider the school district has contracted with, and
3 (ii) the responsibilities of each approved provider with which the
4 school district has contracted with to:
5 (1) ensure that the instruction provided and content used are consist-
6 ent with the instruction provided and content used by the school
7 district and the state, and are aligned with the state learning stand-
8 ards in the areas of English language arts (including reading) and math-
9 ematics,
10 (2) provide parents and teachers of all students receiving supple-
11 mental educational services, the school district and the school with
12 information on the progress of the students in increasing achievement,
13 in a format and, to the extent practicable, in a language that such
14 parents can understand,
15 (3) ensure that supplemental educational services instruction and
16 content are secular, neutral and nonideological and that funds will not
17 be used for religious worship or instruction,
18 (4) comply with all applicable federal, state and local health, safety
19 and civil rights laws, and
20 (5) comply with the applicable contractual agreement pursuant to para-
21 graph (h) of this subdivision;
22 j. notify the department of any noncompliance by an approved provider
23 with respect to the provider's responsibilities as listed in subpara-
24 graph (ii) of paragraph i of this subdivision, including immediate
25 notification of the department of any noncompliance involving a threat
26 to the health and/or safety of students; and
27 k. submit to the department, annually on or before October thirty-
28 first, a monitoring report of supplemental educational services provided
29 during the preceding academic year, in a form prescribed by the commis-
30 sioner, together with a copy of each provider's report prepared pursuant
31 to subparagraph (xvi) of paragraph h of this subdivision.
32 § 3. This act shall take effect immediately.
