New York Codes, Rules and Regulations
Title 8 - EDUCATION DEPARTMENT
Chapter II - Regulations of the Commissioner
Subchapter E - Elementary and Secondary Education
Part 120 - School Choice and Supplemental Educational Service Providers
Section 120.2 - Supplemental educational services
Universal Citation: 8 NY Comp Codes Rules and Regs ยง 120.2
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Definitions. As used in this section:
(1) approved provider shall mean a provider
approved by the commissioner pursuant to the provisions of this section for
purposes of inclusion on the State Education Department's list of approved
supplemental educational services providers;
(2) eligible applicant shall mean a local
educational agency or a non-profit entity or a for-profit entity authorized to
provide the proposed services in New York State, including, but not limited to,
a charter school, nonpublic school, board of cooperative educational services
or county vocational education and extension board;
(3) eligible student shall mean an eligible
child, as defined in section 1116(e)(12)(A) of the NCLB, 20 U.S.C. section
6316(e)(12)(A) who is entitled to receive supplemental educational services,
subject to the provisions of section 1116(b)(10)(C) of the NCLB, 20 U.S.C.
section 6316(b)(10)(C) (Public Law, section 107-110, sections 1116[e][12][A]
and 1116[b][10][C], 115 STAT. 1494 and 115 STAT. 1486; Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002;
available at the Office of Counsel, State Education Building, Room 148, Albany,
NY 12234), and who attends a title I priority or focus school;
(4) academic year shall mean the period
commencing on September 1st and ending on August 31st the next succeeding
calendar year; and
(5) supplemental
educational services shall have the same meaning as set forth in section
1116(e)(12)(C) of the NCLB, 20 U.S.C. section 6316(e)(12)(C) (Public Law,
section 107-110, section 1116[e][12][C], 115 STAT. 1494; Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002;
available at the Office of Counsel, State Education Building, Room 148, Albany,
NY 12234).
(b) A title I LEA may choose to offer supplemental educational services to eligible students who attend a school that is designated as priority or focus.
(c) The per pupil spending limit that a local educational agency may provide for supplemental educational services shall be the lesser of the following:
(1) the amount
of the LEA's allocation under title I, part A, subpart 2 of the NCLB, divided
by the number of children from families below the poverty level counted under
section 1124(c)(1)(A) of the NCLB, 20 U.S.C. 6333(c)(1)(A) (Public Law, section
107-110, section 1124[c][1][A], 115 STAT. 1519; Superintendent of Documents,
U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at
the Office of Counsel, State Education Building, Room 148, Albany, NY 12234);
or
(2) the actual cost of the
supplemental educational services provided to each eligible
student.
(d) Approval of providers.
(1) An eligible applicant that
seeks to become an approved provider shall submit to the commissioner a written
application in a form and within the time prescribed by the
commissioner.
(2) The commissioner
shall approve an eligible applicant for inclusion on the department's list of
approved supplemental educational service providers, upon the commissioner's
determination that its application satisfies each of the following criteria:
(i) the applicant has a demonstrated record
of effectiveness in increasing student academic achievement in English language
arts (including reading) and/or mathematics;
(ii) the instruction to be provided and
content to be used are aligned with State common core learning standards in the
areas of English language arts (including reading) and mathematics;
(iii) instruction will be provided under the
general supervision of a New York State certified teacher;
(iv) the supplemental educational services
are of high quality, research-based and specifically designed to increase the
academic achievement of eligible students on the required State assessments in
the areas of English language arts (including reading) and mathematics and to
attain proficiency in meeting State learning standards in those
areas;
(v) the applicant will
provide appropriate accommodations and supports to students with disabilities
to ensure such students benefit from supplemental educational
services;
(vi) the supplemental
educational services will be provided outside the regular school day,
including, but not limited to, before or after school, weekend or summer
sessions;
(vii) letters of
reference from parents, schools and/or other appropriate parties who are
current or former recipients of the provider services are provided;
(viii) the applicant will require that all
individuals employed by, or otherwise associated with, the applicant who will
have direct contact with eligible students shall be subject to the fingerprint
and criminal history record check requirements contained in law, including, but
not limited to, Education Law, sections 305(30), 1125(3), 1604(39) and (40),
1709(39) and (40), 1804(9) and (10), 1950(4)(ll), 1950(4)(mm), 2503(18) and
(19), 2554(25) and (26), 2590-h(20), 2854(3) (a-2) and (a-3) and 3035, and Part
87 of this Title;
(ix) the
applicant is fiscally sound and will be able to fulfill its agreement to
provide services to the eligible child and the local educational agency
pursuant to paragraph (f)(8) of this section;
(x) supplemental educational services
instruction and content are secular, neutral and nonideological;
(xi) the applicant will comply with all
applicable Federal, State and local health, safety, and civil rights
laws;
(xii) the applicant will
assure that supplemental educational services are available in locations
accessible to individuals with disabilities, to the extent required by section
504 of the Rehabilitation Act of 1973 ( 29 U.S.C. section 794 ) and the
Americans with Disabilities Act ( 42 U.S.C. section 12101 et seq.);
(xiii) the applicant shall provide additional
assurances that:
(a) the instruction and
content used are consistent with the instruction provided and content used by
the local educational agency and State and are aligned with State learning
standards in English language arts (including reading) and/or
mathematics;
(b) eligible students
with disabilities and eligible students with limited English proficiency will
have equal access to services offered by the applicant;
(c) the applicant will not disclose to the
public the identity of any student who is eligible for, or receiving,
supplemental educational services without the written permission of the parents
of the student;
(d) the applicant
will not impose additional admission criteria on eligible students;
(e) the applicant will provide parents and
teachers of eligible students receiving supplemental educational services and
the appropriate title I LEA with information on the progress of such students
in increasing achievement in a format, and to the extent practicable, in a
language or other mode of communication that such parents can
understand;
(f) the applicant has
adequate insurance for liability, property loss and personal injury involving
students receiving supplemental educational services from the applicant;
and
(g) the applicant shall not
make any offer or advertisement of rewards, gifts, incentives, gratuities,
payments, or compensation of any kind to parents, students, LEAs, LEA staff
and/or school staff for purposes of, or tending to have the effect of,
soliciting enrollment, encouraging parents to switch providers once students
are enrolled, and/or attempting to influence parents, students, LEAs, LEA staff
and/or school staff; provided that nothing herein shall be deemed to prohibit
the use, as part of the instructional program, of nominal rewards or incentives
as defined in subparagraph (f)(8)(xvii) of this section.
(3) Where an applicant uses
alternate methods for delivery of services, which may include online,
internet-based approaches, as well as other distance-learning technologies, the
provision of equipment, including computers, to students to use or keep as a
means of receiving such supplemental educational services, must be approved by
the commissioner as part of the applicant's instructional program.
(4) Notwithstanding the provisions of this
subdivision, each provider on the department's list of approved supplemental
educational services providers as of July 1, 2012 shall, no later than a date
determined by the commissioner, submit to the department, in a format
prescribed by the commissioner, evidence that, commencing with the 2013-2014
school year, the instruction provided and content used by such provider are
aligned with the State common core learning standards in the areas of English
language arts (including reading) and mathematics. Any provider who fails to
comply with the requirements of this paragraph shall be subject to termination
pursuant to subdivision (e) of this section.
(e) Termination of provider approval.
(1) Approval for inclusion on the
department's list of approved supplemental educational services providers shall
be withdrawn from a provider for good cause, including, but not limited to, a
determination by the commissioner that the provider:
(i) is in noncompliance with one or more of
the criteria for approval set forth in subparagraphs (d)(2)(i)-(xiii) of this
section;
(ii) has failed for two
consecutive years to contribute to increasing the academic proficiency of
students receiving supplemental educational services from such provider;
and/or
(iii) has failed to comply
with paragraph (d)(4) of this section.
(2) Termination of provider approval shall be
conducted in accordance with the following procedures:
(i) The commissioner or his/her designee
shall notify the provider in writing of the intent to terminate approval at
least 30 calendar days prior to the effective date of the termination,
including a list of the identified deficiencies and/or violations of State or
Federal laws or regulations that are believed to exist.
(ii) The provider may reply in writing within
10 calendar days of receipt of the commissioner's notification, addressing the
commissioner's statement of reasons, indicating whether deficiencies and/or
violations exist, what steps have been taken to correct conceded deficiencies
and/or violations, and the time period and steps by which deficiencies and/or
violations will be corrected. If no reply is received, termination and removal
from the list will become effective 30 calendar days from the date of receipt
of the commissioner's notification.
(iii) Within three business days of receipt
of the commissioner's notification, the provider may request oral argument
before the commissioner or his/her designee.
(iv) After consideration of any written
response and of any oral argument, a determination shall be made whether
approval shall be terminated. Notice of such determination shall be provided in
writing to the provider.
(3) Notwithstanding the provisions of
paragraph (2) of this subdivision, the commissioner may issue an emergency
order immediately suspending the provision of services under this section,
pending a final determination of the provider's approval status, upon the
commissioner's determination that an immediate threat exists to the health
and/or safety of students.
(f) Local educational agency responsibilities. A title I LEA that chooses to offer supplemental educational services shall:
(1) select the approved
providers from which parents may choose, except that the LEA must select at
least two providers who serve students in the grades enrolled in LEA's priority
and focus schools.
(2) notify
parents of eligible students annually, in a format and, to the extent
practicable, in a language that such parents can understand, of:
(i) the availability of supplemental
educational services; and
(ii) the
identity of approved providers that the LEA has selected, together with a brief
description of the services, qualifications and demonstrated effectiveness of
each such provider;
(3)
if requested, assist parents in choosing an approved provider;
(4) ensure that, to the extent the LEA
chooses to offer supplemental educational services, priority is given to
providing the services to the lowest achieving eligible students;
(5) apply fair and equitable procedures for
serving eligible students if the number of spaces at approved providers is not
sufficient to serve all such students;
(6) not disclose to the public the identity
of any student who is eligible for, or receiving, supplemental educational
services without the written permission of the parents of the
student;
(7) ensure that eligible
students with disabilities under the IDEA and eligible students who are
individuals with disabilities covered by section 504 of the Rehabilitation Act
of 1973 ( 29 U.S.C. section 794 ) receive appropriate supplemental educational
services and accommodations in the provision of those services;
(8) ensure that eligible limited English
proficient students receive appropriate supplemental educational services and
language assistance in the provision of those services;
(9) contact providers selected by the
parents, from the providers chosen by the district, and enter into a
contractual agreement with each such provider that includes:
(i) a statement of specific achievement goals
for each eligible student based upon such student's specific educational
needs;
(ii) a description of how
each such student's progress will be measured;
(iii) a timetable for improving
achievement;
(iv) for eligible
students with disabilities under the IDEA and eligible students who are
individuals with disabilities covered by section 504 of the Rehabilitation Act
of 1973 ( 29 U.S.C. section 794 ), the goals, method of measurement and
timetable set forth in the agreement must be consistent with such student's
individualized education program pursuant to the Individuals with Disabilities
Education Act or the student's section 504 plan, where applicable;
(v) the initiation date, frequency and
duration of services to be provided;
(vi) the location where services will be
provided;
(vii) a description of
how each eligible student's parents, teacher(s) and the local educational
agency will be regularly informed, at least quarterly, of the student's
progress;
(viii) a provision for
termination of the agreement if the provider is unable to meet the goals and
timetables;
(ix) a provision that
the term of the agreement shall not exceed the end of the academic year in
which the student first received such services;
(x) a provision that the agreement will
terminate immediately upon the provider's removal from the department's list of
approved supplemental educational services providers, pursuant to subdivision
(e) of this section;
(xi) payment
provisions based on eligible student attendance and delivery of supplemental
educational services;
(xii) an
assurance from the provider that the identity of any student who is eligible
for, or receiving, supplemental educational services will not be disclosed
without the written permission of the parents of the student;
(xiii) a description of the program to be
used;
(xiv) the experience and
qualifications of staff responsible for the delivery of the instructional
program, including an assurance that instruction will be provided under the
general supervision of a New York State certified teacher;
(xv) provisions that subject all individuals
employed by, or otherwise associated with, the provider who will have direct
contact with students, to the fingerprint and criminal history record check
requirements contained in law, including, but not limited to, Education Law,
sections 305(30), 1125(3), 1604(39) and (40), 1709(39) and (40), 1804(9) and
(10), 1950(4)(ll), 1950(4)(mm), 2503(18) and (19), 2554(25) and (26),
2590-h(20), 2854(3) (a-2) and (a-3) and 3035, and Part 87 of this
Title;
(xvi) a requirement that the
provider submit to the title I LEA, annually on or before September 30th, a
final written report in a form prescribed by the commissioner that summarizes
the progress of eligible students provided with supplemental educational
services during the preceding academic year, pursuant to its agreement(s) with
the local educational agency;
(xvii) a provision stating: "The provider is
prohibited from making any offer or advertisement of rewards, gifts,
incentives, gratuities, payments, or compensation of any kind to parents,
students, LEAs, LEA staff and/or school staff for purposes of, or tending to
have the effect of, soliciting enrollment, encouraging parents to switch
providers once students are enrolled, and/or attempting to influence parents,
students, LEAs, LEA staff and/or school staff; provided that nothing herein
shall be deemed to prohibit the use, as part of the instructional program, of
nominal rewards or incentives as defined in 8 NYCRR section
120.4(f)(8)(xvii)."
For purposes of this subparagraph, a nominal reward or incentive is defined as
an award or incentive that:
(a) does not
exceed a total value of $25 per student per year;
(b) is directly linked to documented
meaningful attendance benchmarks and/or completion of assessment and program
objectives; and
(c) is approved by
the commissioner as part of the provider's instructional program;
(10) monitor the
following:
(i) the quality and effectiveness
of the services offered by each approved provider the local educational agency
has contracted with; and
(ii) the
responsibilities of each approved provider with which the title I LEA has
contracted with to:
(a) ensure that the
instruction provided and content used are consistent with the instruction
provided and content used by the appropriate title I LEA and the State, and are
aligned with the State common core learning standards in the areas of English
language arts (including reading) and mathematics;
(b) provide parents and teachers of all
students receiving supplemental educational services, the title I LEA and the
school with information on the progress of the students in increasing
achievement, in a format and, to the extent practicable, in a language that
such parents can understand;
(c)
ensure that supplemental educational services instruction and content are
secular, neutral and nonideological and that funds will not be used for
religious worship or instruction;
(d) comply with all applicable Federal,
State, and local health, safety, and civil rights laws; and
(e) comply with the applicable contractual
agreement pursuant to paragraph (8) of this subdivision;
(11) notify the State Education
Department of any noncompliance by an approved provider with respect to the
provider's responsibilities as listed in subparagraph (9)(ii) of this
subdivision, including immediate notification of the department of any
noncompliance involving a threat to the health and/or safety of
students;
(12) submit to the State
Education Department, annually on or before October 31st, a monitoring report
of supplemental educational services provided during the preceding academic
year, in a form prescribed by the commissioner, together with a copy of each
provider's report prepared pursuant to subparagraph (8)(xvi) of this
subdivision.
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