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 important updated information.
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. 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 must 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.
The proposed regulation sets forth a recommended procedure for LSAs to render determinations regarding substantial equivalency. If there are concerns about the substantial equivalency of the instruction, 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. 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 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.
• the LSA should send written notification to the administration of the nonpublic school and provide a letter for the nonpublic school to distribute to parents;
• the LSA must notify SORIS of the positive determination; 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.
• Required services to the nonpublic school and 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 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.
• Appropriate programs for students who have limited English proficiency.
• Accreditation materials should be taken into account if a nonpublic school has been accredited within the last five years.
• 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; English language arts; social studies; 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 requirements pursuant to Education Law §§ 305(52), 801, 803(4), 804, 806, 807, 808, 3204(3), (5); and 8 NYCRR §§ 100.2(c)(1), 100.2(c)(3)-(7), 100.2(c)(11).
• 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 school’s instructional program meets the criteria set forth in Education Law § 3204(2)(ii).
• 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.