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August 25, 2017
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JP O'Hare

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State Education Department Releases Waivers Related to State ESSA Plan For Public Comment

Waivers Related to Middle School Students Taking Regents Exams, English Language Learners and Students with Disabilities

Waivers Referenced in Draft ESSA Plan Released in July 2017

The New York State Education Department today released three Every Student Succeeds Act (ESSA) waiver requests for public comment. The waivers are included in the state’s draft ESSA plan and have been previously discussed with the Board of Regents and stakeholders. NYSED will submit the waivers to the United States Department of Education (USDE). USDE requires that states post proposed waivers for public comment prior to their submission to the USDE.  The public comment period runs through September 8.

The full text of each proposed waiver is posted on the Department’s ESSA webpage. The first waiver requests permission to continue to allow the state to use the results of middle school students who take a mathematics or science Regents exam, in lieu of the grade level exam, for the purposes of determining school accountability and participation. 

The second waiver requests permission to continue to exempt newly arrived English Language Learner/Multilingual Learner (ELL/MLL) students for one year from taking the English language arts (ELA) exam.  The waiver also seeks to, in Year 2, have these students take the ELA exam to establish a baseline for measuring growth.  In Year 3 and beyond, both the achievement and growth results in ELA would be used for school accountability.  Without a waiver, New York would be required to begin to test these students in Year 2 and use those achievement results for school accountability.

The third waiver requests permission to assess a small number of students with the most significant cognitive disabilities, but who are not eligible for the New York State Alternative Assessment (NYSAA), with tests matched to the instructional level of the students, not to the chronological age of the students.  While these students would be considered Level 1 (nonproficient) for accountability purposes, instructional level tests will provide teachers and parents more instructionally relevant information.  Currently these students, who are not eligible for the NYSAA, must take a grade level exam, even if these students are unable to correctly answer any of the questions on the exam.  

Versions of the three waivers have previously been submitted to the USDE as part of the State’s ESEA Flexibility Waiver, which outlined the State’s school and district accountability plan for the 2012-13 through 2016-17 school years.  Although the USDE has not approved the Students with Disabilities or English Language Learner waivers in the past, the Department is required by Education Law 305(48) to submit the waivers, thereby “ensuring accountability for the performance of such students in appropriate ways.”  The waiver regarding middle school mathematics Regents exam had been approved by USDE during the ESEA Flexibility period and the science Regents exam waiver has been in place for more than ten years.  However, USDE requires that the state resubmit these waivers under ESSA.

Comments can be submitted via e-mail to with “ESSA Comments from (sender/organization name)” in the subject line. Comments submitted via mail should be sent to the attention of Dr. Lisa Long, New York State Education Department, Office of Accountability, 4th Floor, 55 Hanson Place, Brooklyn, New York 11217. Comments will be accepted through September 8.

Next Steps

In September, the Department will share a summary of the public comments received on the three waivers with the Board of Regents.  Then, the Board will take action on the ESSA plan and the associated waivers, so that on September 18 the NYSED can submit the plan and any approved waivers to the USDE.  After the plan is approved by the USDE, the Department will work with stakeholder groups to develop and provide guidance on implementing the ESSA plan. Further, NYSED is developing summary documents for parents, educators and other stakeholders to explain the changes in the ESSA plan.