Questions and Answers Related to Implementation of the New Comprehensive Teacher and Principal Evaluation Law (Education law §3012-c as added by Chapter 103 of the Laws of 2010)

This document represents interim guidance on issues relating to implementation of Education Law §3012-c. It is intended to provide the field with the conceptual framework relating to key issues identified in this new law. The Commissioner will be seeking recommendations from a new Regents Task Force on Teacher and Principal Effectiveness ("Regents Task Force") on key issues, in accordance with Education Law §3012-c (See Q and A #3). After consultation with the Regents Task Force, the Commissioner will ultimately make recommendations to the Board of Regents for the promulgation of regulations to implement this new law. Please be advised that this document constitutes preliminary guidance and is subject to change during this advisory process.

Employment Decisions

1. Q. Education Law §3012-c(1) requires that annual professional performance reviews (APPRs) be a significant factor in employment decisions including but not limited to, promotion, retention, tenure determination, termination, and supplemental compensation? What does this mean?

   A. Teacher and Principal evaluations are intended to inform employment decision-making, including decisions related to promotion, retention, tenure determinations, termination and supplemental compensation.

   The law is not, however, intended to affect the statutory right of a district or BOCES to terminate a probationary teacher (see Q and A #15) or to restrict a district’s or BOCES’ discretion in making a tenure determination.

2. Q. What if a school district or BOCES does not offer supplemental compensation?

   A. The requirement that evaluations be a significant factor in decisions regarding supplemental compensation only applies in those instances where a district or BOCES actually collectively negotiates that type of compensation. However, consistent with the NYS Race to the Top application, the Department strongly encourages parties to re-negotiate and/or modify provisions in their collective bargaining agreements to provide for supplemental compensation linked to the new evaluation system.

Advisory Committee

3. Q. Education Law §3012-c(7) requires that any regulations adopted to implement this new law be developed in consultation with an advisory committee consisting of representatives of teachers, principals, superintendents of schools, school boards, school districts and board of cooperative educational services officials and other interested parties. Has the Department convened this committee and if so, what is the membership of this committee comprised of?

   A. The Department is in the process of convening the advisory committee that must be established under Education Law §3012-c. This committee will be known as the Regents Task Force on Teacher and Principal Effectiveness ("Task Force"). The Task Force will be comprised of representatives of teachers, principals, superintendents of schools, school boards, school districts and board of cooperative educational services officials, and other interested parties, including research advisors. The Department is in the process of designating Task Force members and anticipates that the Committee will be convened in September 2010.

Teacher Effectiveness Score and Rating Categories

4. Q. What is the teacher and principal effectiveness score?

   A. Education Law §3012-c(2)(a) requires annual professional performance reviews (APPRs) to result in a single composite teacher or principal effectiveness score, which shall incorporate multiple measures of effectiveness, related to the criteria prescribed in the Commissioner’s regulations. The teacher or principal effectiveness score is based on 100 points, 40 points of which shall be based on student achievement measures consistent with Education Law §3012-c and the remaining 60 points shall be locally developed, consistent with standards prescribed by the Commissioner in regulations.

5. Q. The new legislation requires that all classroom teachers and building principals be evaluated using the following rating categories: highly effective, effective, developing and ineffective? How are these rating categories defined and what is their relationship to the teacher or principal effectiveness score?

   A. Education Law §3012-c(2)(a) requires the Commissioner, after consultation with the advisory committee, to define explicit minimum and maximum scoring ranges for each effectiveness rating category (Highly Effective, Effective, Developing and Ineffective). These rating categories are currently required for APPRs for teachers beginning July 1, 2011 pursuant to §100.2(o) of the Commissioner’s regulations. The Department anticipates promulgating amendments to §100.2(o), to identify the scoring ranges for each of these effectiveness rating categories by Spring 2011. The Department is also in the process of developing companion regulations for a performance evaluation system for principals. A teacher’s or principal’s effectiveness score will be utilized to determine which effectiveness rating category the teacher or principal is rated in, based on the scoring ranges developed by the Commissioner, after consultation with the Regents Task Force.

Classroom Teachers

6. Q. The legislation refers to "classroom teachers"? For purposes of this legislation, how will classroom teachers be defined?

   A. The Commissioner will be seeking advice from the Regents Task Force as to what teachers should be included in the definition of "classroom teachers" for purposes of evaluations conducted under Education Law §3012-c.

7. Q. The legislation refers to the "common branch subjects." What is the definition of common branch subjects?

   A. The phrase "common branch subjects" is defined in section 80-1.1 of the Commissioner’s regulations as "any or all of the subjects usually included in the daily program of an elementary school classroom such as arithmetic, civics, visual arts, elementary science, English language, geography, history, hygiene, physical activities, practical arts, reading, music, writing, and other similar subjects."

8. Q. Are teachers who provide instructional support services and library media specialists, school nurse teachers, etc. considered "classroom teachers" under Education Law §3012-c?

   A. As stated above, the Commissioner will be seeking advice from the Regents Task Force as to what types of teachers should be included in the definition of "classroom teachers" for purposes of evaluations conducted under Education Law §3012-c.

9. Q. If a classroom teacher or building principal is employed by a school district or BOCES in the middle of the school year, is the school district or BOCES required to perform an evaluation of such teacher at the end of the school year?

   A. The Commissioner will be seeking a recommendation from the Regents Task Force on this issue.

Annual Professional Performance Review Regulations

10. Q. Are school districts and BOCES required to comply with the annual professional performance requirements in section 100.2(o) of the Regulations of the Commissioner of Education for the 2010-2011 school year?

    A. Yes, school districts and BOCES will be required to ensure that the performance of all teachers providing instructional services or pupil personnel services, except evening school teachers of nonacademic, vocational subjects be reviewed annually in accordance with the requirements of section 100.2 of the Commissioner’s regulations.

    For the 2010-2011 school year, school districts and BOCES will be required to evaluate all teachers providing instructional services pursuant to the eight evaluation criteria prescribed in section 100.2(o)(1)(iii)(b)(1) of the Commissioner’s regulations, unless the school district or BOCES has an approved variance from these regulations or until revisions are made to this regulation.

11. Q. Will the Commissioner establish an evaluation system for the 2011-2012 school year for teachers other than classroom teachers of common branch subjects or English language arts or mathematics in grades four to eight and all building principals of schools in which such teachers are employed?

    A. The new statewide evaluation system established by section 3012-c builds on, not eliminates, the existing APPR regulations. Specifically, Education Law §3012-c(3) provides:

    Nothing in this section shall be construed to excuse school districts or boards of cooperative educational services from complying with the standards set forth in the regulations of the commissioner for conducting annual professional performance reviews of classroom teachers or principals, including but not limited to required quality rating categories, in conducting evaluations prior to July first, two thousand eleven, or, for classroom teachers or principals subject to paragraph (c) of subdivision two of this section, prior to July 1, two thousand twelve.

    Therefore, school districts and BOCES must comply with the requirements in §100.2(o) of the Commissioner’s regulations for all teachers providing instructional services or pupil personnel services prior to July 1, 2011 and thereafter as the provisions of the new law phase in. In other words, even during the first year of the new comprehensive statewide system (i.e. 2011-2012), school districts and BOCES must comply with the applicable provisions of §100.2(o) for all teachers providing instructional services or pupil personnel services, even for those whom the new statutory system has not yet phased in. In effect, during the phase-in of the new system, districts and BOCES will be operating a dual system of evaluations.

    Recent amendments to §100.2(o) apply to all teacher evaluations conducted on or after July 1, 2011. Among other things, the revised APPR regulations require that annual evaluations incorporate student growth and use four prescribed rating categories (highly effective, effective, developing and ineffective). As noted above, these provisions will be effective for all teachers providing instructional services or pupil personnel services beginning July 1, 2011 as the new law phases in. Companion regulations for principals are currently under development.

Evaluator Training

12. Q. Education Law §3012-c provides that prior to any evaluation being conducted, any individual who is responsible for conducting an evaluation must receive appropriate training in accordance with the Commissioner’s regulations. Who will be establishing the training requirements and when do you expect that school districts or BOCES will be made aware of what such requirements are?

    A. The Commissioner, in consultation with the Regents Task Force, will recommend the training requirements for evaluators to be included in regulation. SED plans to use a portion of its discretionary RTTT monies to develop training materials.

Appeals Procedure

13. Q. How will the appeal process work? To whom will appeals be made? Will there be time limits on challenges and procedures?

    A. Under the new law, the appeals process is to be locally developed. Accordingly, the specific procedures will vary from district to district. However, the overarching intent of the law is that appeals will be resolved in an expeditious manner. This is necessary since annual evaluations will now inform employment decisions and the law provides for an expedited process for the removal of teachers and principals rated ineffective in two consecutive annual evaluations. A protracted appeal process would be contrary to the spirit of the law and would impede implementation of these provisions. The Department urges all parties to be mindful of the law’s intent as local appeal procedures are developed.

    To assist the field, the Department intends to share model appeal procedures for school districts and BOCES which will address a teacher’s or principal’s due process requirements while prescribing tight timeframes to ensure that appeals are resolved in an expeditious manner. The model appeal procedures will be available for consideration and use in negotiations regarding any local appeals procedure.

14. Q. Will an evaluated teacher or principal be permitted to file more than one appeal on the same evaluation, but on different grounds (i.e., first he or she brings an appeal on the substance of the review, then he or she brings an appeal to challenge the school district’s or BOCES adherence to the standards for such reviews and then he or she brings an appeal to challenge the school district’s issuance of an improvement plan)?

    A. The law does not expressly provide for multiple appeals and such interpretation would be contrary to the efficient resolution of disputes over evaluations.

15. Q. Do probationary teachers or principals have the right to appeal an evaluation? Can a school district or BOCES dismiss a probationary teacher or principal while final resolution of an evaluation appeal is still pending?

    A. While a probationary teacher or principal may appeal his or her evaluation, this does not prevent their dismissal under the applicable provisions of Education Law §§ 2509(1) and (2), 2573(1) and (5), 3012(1) and (2) or 3014(1) and (2). The evaluation may still be changed in their personnel file, as appropriate, based on the final resolution of any evaluation appeal. A probationary teacher or principal may be terminated at any time, for any reason other than a constitutionally impermissible reason, in violation of a statutory proscription, or in bad faith (see, Education Law §§ 2509[1], 2573[1], 3012[1][a] and [b], and 3014[1]).

Student Achievement Measures

16. Q. Education Law §3012-c(2)(e) provides that 20% of the evaluation for the 2011-2012 school year shall be based upon student growth data on state assessments as prescribed by the Commissioner or a comparable measure of student growth if such growth data is not available. What state assessments will be utilized and/or what other comparable measures will be utilized?

    A. After consultation with the Regents Task Force on these issues, the Commissioner will identify the state assessments that will be utilized for the evaluation of classroom teachers in tested subjects and identify comparable measures of student achievement for classroom teachers in non-tested subjects in regulation in Spring 2011.

17. Q. Education Law §3012-c(f) provides that 20% of the evaluation for the 2011-2012 school year shall be based upon other locally selected measures of student achievement that are determined to be rigorous and comparable across classrooms in accordance with the regulations of the commissioner. Can a school district or BOCES begin developing these locally selected measures now?

    A. After seeking input from the Regents Task Force, the Commissioner will be establishing specific standards for these locally developed achievement measures to ensure that such measures are rigorous and comparable across classrooms. The Commissioner anticipates identifying these standards in regulation.

    The Department also plans to develop models of appropriate student achievement measures for use by the parties in local negotiations.

18. Q. Will the remaining 60% be comprised of the existing evaluation criteria in 100.2(o) of the Commissioner’s regulations?A. After consultation with the Regents Task Force on this issue, the Regents will promulgate regulations in Spring 2011 to establish specific standards for the remaining 60% of evaluations, ratings and effectiveness.

19. Q. How will the Department ensure that student population (student with disabilities, ELL, etc.) and the school environment (i.e., low performing school or high need school) will be taken into consideration in that portion of the teacher or principal’s evaluation based on student achievement measures?

    A. Education Law §3012-c specifically provides that 40% of a teacher or principal’s evaluation shall be based on student achievement measures, which shall include student growth data on State assessments or other comparable measures and locally selected measures of student achievement that are determined to be rigorous and comparable across classrooms in accordance with regulations of the Commissioner. This language provides the Commissioner with wide discretion in setting these student achievement measures.

    The Department will seek a recommendation from the Regents Task Force as to how to ensure that these students will be fairly and appropriately measured. The Department is also in the process of developing a value added model to assess student achievement that accounts for various factors.

20. Q. What if the Regents have not approved the use of a value-added growth model prior to the 2013-2014 school year, how should the student achievement measure of the teacher or principal effectiveness score be calculated?

    A. Education Law §3012-c(2)(f) requires that for annual professional performance reviews conducted prior to the first school year for the which the Board of Regents has approved use of a value-added growth model: 40% of the composite score of effectiveness shall be based on student achievement measures as follows: (i) 20% of the evaluation shall be based upon student growth data on state assessments as prescribed by the commissioner or comparable measures if such data is not available and (ii) 20% shall be based on other locally selected measures of student achievement that are determined to be rigorous and comparable across classrooms in accordance with the Commissioner’s regulations.

Teacher and Principal Improvement Plan

21. Q. Education Law §3012-c(4) states that upon rating a teacher or a principal as developing or ineffective through an annual professional performance review, the school district or BOCES shall formulate and commence implementation of a teacher or principal improvement plan consistent with the Commissioner’s regulations? What should this teacher and principal improvement plan contain?

    A. Education Law §3012-c(4) requires that teacher and principal improvement plans include, but need not be limited to, identification of needed areas of improvement, a timeline for achieving improvement, the manner in which improvement will be assessed, and, where appropriate, differentiated activities to support a teacher’s or principal’s improvement in those areas. After consultation with the Regents Task Force on these issues, the Commissioner will establish additional standards for teacher and principal improvement plans by Spring 2011. In addition, the Department intends to share best practices and model improvement plans for use by districts and BOCES.