Annual Professional Performance Review (APPR) Update

1. Annual Professional Performance Review (APPR) Update Presented to the Nassau Association of District Curriculum Officials John Gross, Esq. and Gregory Guercio, Esq.

2. The Law As of June 30, 2010

3. The Law On APPR Before §3012-c: Commissioner’s Regulations §100.2(o) of the Commissioner’s regulations required : An annual evaluation of classroom teachers based on at least 8 mandated criteria: content knowledge; preparation of instruction; instructional delivery; classroom management; knowledge of student development; student assessment; collaboration; and reflective and responsive practice; and Adoption of an annual or multi-year professional performance review plan. Note: No requirement to evaluate principals.

4. Race to the Top Begets Section 3012-c developed by NYSUT, SED and the New York State Legislature

5. The New Statute: Education Law §3012-c In May 2010, §3012-c enacted to establish a comprehensive annual evaluation system for teachers and principals. Purpose – Qualify for RTT money. Requires, for the first time, that teacher and principal evaluations consider student performance data.

6. §3012-c Phases-In Over Two Years 2011-2012 - applies to evaluations of classroom teachers of common branch subjects, ELA or math in grades 4-8 and their building principals. 2012-2013 and after – applies to evaluations of allteachers and building principals. District may have a legitimate “safe harbor”

7. Limited Safe Harbor The mere existence of an enforceable contract that has yet to expire does not free a district or its teacher’s union from the obligation of compliance with the APPR regulations and law. Does the amendment of existing CBA equate to entering into a “successor agreement?” To the extent that an existing collective bargaining agreement in effect on July 1, 2010 contains evaluation provisions that conflict with the provisions of Section 3012-c of the Education Law or 8 NYCRR 30-2, the conflicting provision remains in effect until contract expiration. Examples of conflict APPR wholly incorporated by reference Evaluation procedure included in agreement and evaluation instrument is attached Teachers may appeal evaluations to the Superintendent for review Teachers may file a grievance respecting evaluation To the extent an existing collective bargaining agreement is silent, or only inconsistent in part with the law or regulations as to evaluations, school districts and BOCES must negotiate the new evaluation system. 7

8. Does the Safe Harbor ever end? Hiatus period after contract expiration and during negotiations for a successor contract – safe harbor? Commissioner's Regulation 8 NYCRR 30-2(a)(2) By September 1, 2012, the governing body of each school district and BOCES shall adopt a plan in accordance with the requirements of this Subpart, which may be an annual or multi-year plan, for the annual professional performance review of all of its classroom teachers and building principals. To the extent that any of the items required to be included in the plan are not finalized by September 1, 2012, or by September 1 of any subsequent year, as a result of pending collective bargaining negotiations, the plan shall identify those specific parts of the plan and the school district or BOCES shall file an amended plan upon completion of such negotiations. Once impasse is declared does the foregoing continue to apply?

9. Does Wappinger’s Live and Breathe? The SED Guidance Document issued at the end of September in Section N1, pages 52-57 appears to support this position. However, the updated guidance suggests the notion that if negotiations are at an impasse, school districts and BOCES may unilaterally elect to comply with the new requirements of 3012-c pursuant to the decision by PERB in the Wappingers Falls case. See SED Guidance Document Section N3, pages 57-59. The guidance suggests that so long as school districts continue to negotiate the issue and there are compelling reasons to unilaterally act, they may unilaterally implement the new requirements.

10. Overview What the Statute Does

11. §3012-c Does 8 Things Requires teacher and principal evaluations to be based on multiplemeasures (20% student growth/20% locally selected measures of student achievement/60% “other”). Establishes the concept of a composite effectiveness score. Differentiates effectiveness based on 4 quality rating categories: highly effective, effective, developing and ineffective (H,E,D,I). Establishes that evaluations will be a “significant factor” in all employment decisions. Requires evaluator training. Establishes new requirements for improvement plans. Requires districts to establish a process for appealing evaluations. Provides that two consecutive annual ineffective ratings constitute “a pattern of ineffective teaching or performance” subject to expedited disciplinary proceedings.

12. New Commissioner’s Regulations The Board of Regents adopted changes to regulations under §100.2(o) and new Subpart 30-2 in May 2011 to implement §3012-c. The regulations fleshed-out some of the detail of the 8 new features of the statute….

13. For Example…..The Regulations: Set minimum standards/criteria for 3 subcomponents of evaluations (20% student growth/20% locally selected measures of student achievement/60% other). Establish scoring ranges for the overall composite score (H,E,D,I) and the growth and achievement subcomponents. Create an approval process for rubrics. Establish an approval process for student assessments (for the local 20%). Set standards for training of evaluators and lead evaluators. Address TIPs/PIPs. Require appeal procedures. Include monitoring provisions and consequences for non-compliance. Prescribe content of APPR Plan.

14. The Courts Intervene – NYSUT sues

15. Then Came … NYSUT v. Board of Regents NYSUT sued in June 2011 to invalidate parts of the new regulations in Subpart 30-2. Albany County Supreme Court Decision, dated August 24, 2011, declared parts of the regulations invalid. SED announced it would appeal. On September 13, 2011, SED announced that it would not enforce the regulations that were invalidated by the court. SED also announced that it agreed with State organizations representing principals that it would not enforce against principals the regulations declared invalid as to teachers.

16. General Regulatory Areas Affected by NYSUT Decision Locally Selected Measures of Student Achievement Subcomponent (20%) Other Measures of Effectiveness Subcomponent (60%) Tenure and Probationary Determinations Overall H,E,D,I Scoring Ranges Monitoring Bargaining

17. NYSUT Lawsuit Issue #1: Locally Selected Measures - Second 20% - Use of State Assessments • STATUTE SAYS: Sections 3012-c (2)(e)(ii) and (f) (ii) require that twenty percent (20%) of the student growth data comprising a teacher’s composite effectiveness score be based upon other locally selected measures of student achievement that are determined to be rigorous and comparable across classrooms in accordance with the Standards for Educational Testing of the American Psychological Association. • REGULATIONS: allowed use of State assessment data for local 20% measure • COURT: To allow a single state assessment measuring student growth to determine 40% of the student achievement category defined in §3012-c [2] [e] would contravene this multiple measures mandate. 17 17

18. Lawsuit Issue #1: (cont’d) NYSUT Decision prohibits student growth data on State assessments (used in the first 20% subcomponent) from being used the same way in the locally selected subcomponent (second 20%). NYSUTDecision permits data from State assessments to be used to define a “distinctly different measure of student achievement” provided such measure is “developed locally through collective bargaining.”

19. NYSUT Lawsuit Issue #2:Other Measures of Effectiveness (60%) • ARGUMENT: The statute's prescription that the remaining (60) points of the composite score are to be locally developed (i.e. negotiated) is violated by the 40% allocated for classroom observation as established in the Regulations. • COMMISSIONER REGULATION: The regulations provide that: • 2/3rds of the locally developed 60% (40 out of 60 points) must be based on classroom observations of teachers. • No more than 5 points of the remaining 20 points can be based on evidence that a teacher sets informed professional growth goals and strives for continuous professional growth. [§30-2.4(d)(l )(iii); §30-2.4(d)(l )(iv)(c)] • COURT: The concept of “classroom observation” is an evaluation method, not a standard for defining what makes a teacher a good teacher. Similarly, the assignment of a point value to a specific measure of teacher performance is the stuff of evaluation, not a standard that may be pronounced by respondents. Whether and to what extent classroom observation and professional growth are utilized in defining the 60 point evaluation component must necessarily be determined through negotiations as required under §3012-c[h]. Both the regulations challenged here are precluded by the statute and, thus, invalid (Matter of Jones v. Berman, 37 NY2d 42, 53). 19

20. Lawsuit Issue #2: (cont’d) NYSUTDecision holds that the selection of measures and allocation of points in 60% subcomponent must be negotiated. 40/60 and 5-point allocations permissible if negotiated. No longer mandatory that 40% be based on classroom observations. Use of SED-approved rubrics for 60% still required. SED believes that use of rubrics “effectively necessitates” multiple classroom observations of teachers and broad assessment of principal’s leadership/management, including school visits.

21. NYSUT Lawsuit Issue #3: Tenure and Probationary Determinations ARGUMENT: The Regulations are in direct conflict with the statute regarding the award of tenure. COMMISSIONER REGULATION: "Nothing in this section shall be construed to alter or diminish the authority of the governing body of a school district or BOCES to terminate probationary teachers or deny tenure to a probationary teacher during the pendency of an appeal..." [§30-2.1\(c); see also §30-2.\(d) COURT: Essentially, respondents maintain that §3012-c does not pertain to decisions to terminate a probationary teacher or deny tenure — while recognizing the statute does apply to determinations to grant tenure. The statute makes no such distinction. By its terms, the statute states that annual reviews performed after July 1, 2011 must comply with the new evaluation system (§3012-c [1], [3]). Pertinent here, “[s]uch annual professional performance reviews shall be a significant factor for employment decisions including but not limited to, promotion, retention, tenure determination, termination...” (§3012-c[1]) (emphasis added). The underscored terms clarify that tenure determinations, which include both the granting and denial of tenure, must be performed in compliance with the statute. To the extent these regulations provide otherwise, the regulations are invalid. 21

22. Lawsuit Issue #3: (cont’d) Conflict – Statute (3012-c(8)) or Regulations (see §30-2.1[d]) reflecting black letter law? No statutory reservation of School Board authority to appoint. "Nothing herein shall be construed to affect the statutory right of a school district or BOCES to terminate a probationary teacher or principal or to restrict a school district's or BOCES's discretion making a tenure determination pursuant to law". Even if read to be no conflict respecting the termination of a probationer or the award of tenure, the statute requires negotiations of procedures for use of the APPR evaluation in all employment determinations including termination and the award of tenure. Districts and BOCES can expect myriad proposals from their teacher bargaining representative regarding this requirement. – MORE LATER 22

23. NYSUT Lawsuit Issue #4:Scoring Ranges and Composite Effectiveness Score ARGUMENT: A disproportionate amount of weight is placed on the student achievement subcomponents of a single composite effectiveness score. COMMISSIONER REGULATIONS: Establishes scoring bands under which a teacher can be rated as ineffective overall based on the results of a single standardized state assessment. COURT: The Commissioner’s authority to prescribe the minimum and maximum scoring ranges for each rating category is qualified by the mandate that the composite score embrace the “multiple measures” requirement of the statute. The current structure measuring “ineffective” by a combined score under 65, allows for a teacher and/or principal to be deemed “ineffective” solely on the basis of poor student achievement . . . . Even if that teacher otherwise received a perfect 60 point scoring on the other evaluation category, that teacher would be deemed “ineffective”. In this situation, the 60 point category defined in §3012-c[h] becomes academic. While respondents assert that the statute mandates actual improvement in student achievement, as measured in the 40% student achievement category, the statute includes no such mandate. Since multiple measures must be considered, the scoring ranges developed by the Commissioner must allow for the 60 point category to have meaningful impact in the composite score, even in an instance of poor student achievement. That, frankly, is precisely what the draft regulations achieved in measuring the “ineffective” category by a score of 50 and under. While respondents may well be correct in asserting that a teacher would rarely be classified as “ineffective” based solely on poor student achievement as measured in the 40% category, that prospect renders the regulation invalid. 23

24. Lawsuit Issue #4: (cont’d) NYSUT Decision held the overall scoring ranges established by the Commissioner for the H,E,D,I categories violate the “multiple measures” requirement of the statute by placing too much emphasis on the growth/achievement subcomponents. New numeric scoring ranges for overall H,E,D,I rating categories to be prescribed by the Commissioner at a later date, if necessary, depending on the outcome of SED’s appeal.

25. NYSUT Lawsuit Issue #5:Monitoring ARGUMENT: There is no authorization provided for in the law to allow the Commissioner to interfere with locally developed teacher evaluation procedures by issuing a corrective action plan or by ordering that a school district or BOCES utilize independent trained evaluators. COMMISSIONER REGULATION: The Commissioner may order a corrective action plan, which may include, but is not limited to, a requirement that the district or BOCES utilize independent trained evaluators, where appropriate. COURT: Actually, as discussed above, but for the first 20% component, the evaluation process defined in §3012-c is subject to collective bargaining – a mandate that certainly embraces the identity of the evaluator. To the extent §30-2.12[b] authorizes the Department to appoint independent evaluators it conflicts with §3012-C. The Commissioner does, however, have the authority and obligation to enforce the provisions of the Education Law and regulations (Education Law §308). Accordingly, this Court finds that the regulation is valid, except as noted above. 25

26. NYSUT Lawsuit Issue #6: Duty to Bargain and Appeals The Court on overall duty to bargain: “Most troubling was the Court’s sweeping comment regarding the negotiability of the elements of the statute: “The theme throughout §3012-c is that except for the first 20% category discussed above, the remaining 80 points must be established through collective bargaining (§3012-c[2][a];[e][ii];[h]; and [8]).” 26

27. NYSUT Lawsuit Issue #6: (cont’d) • ARGUMENT: The statute does not require that appeals procedures be subject to the Commissioner's Regulations-only that they be collectively bargained. Therefore, the Regents had no lawful basis to include in the Regulations specific requirements for an appeals procedure. • COMMISSIONER REGULATION: The regulations purport to impose conditions upon appeal procedures. Specifically: “Appeal procedures shall provide for the timely and expeditious resolution of any appeal ...” • COURT SAYS: The Court held that, “Petitioners further challenge §30-2.11[b] of the regulations providing that the appeals procedure attendant the evaluation process ’shall provide for the timely and expeditious resolution of any appeal.’ Education Law §3012-c [5] expressly provides that ’[t]he specifics of the appeal procedure shall be locally established through negotiation…’ (emphasis). The challenged regulation speaks to a general objective of a timely appellate process, not the specifics of that process. As such the regulation is valid.” 27

28. Consider and Study Interplay between “old” APPR regulations (§100.2[o]) and “new” APPR regulations (§3012-c and Subpart 30-2). Application ofNYSUT v. Board of Regents. Updated Guidance (70+ pages) issued by SED on September 13, 2011. Begin preparing your APPR as a negotiations template

29. What Do Districts Do Now?

30. §3012-c Phase-In and §100.2(o) This year, we have a dual system of evaluations. 2011-2012 - §100.2(o) remains in effect and governs the evaluation of classroom teachers other than those subject to §3012-c (i.e. classroom teachers teaching subjects other than ELA and Math in Grades 4-8). Use methods under your pre §3012-c APPR Plan to evaluate these teachers.

31. New §100.2(o) Requirement for Principal Evaluations 2011-2012 – May 2011 amendment to §100.2(o) requires the annual evaluation of building principals who are not yet subject to §3012-c (i.e. building principals other than in grades 4-8). Building principal evaluations to be conducted “according to procedures developed by [the board]… in consultation with such building principals” (§100.2[o][1][v]).

32. New §100.2(o) Requirement for Principal Evaluations (cont’d) SED announced in September 13, 2011 Guidance that earlier emergency changes to §100.2(o) are not being continued, namely the required use of four quality rating categories (H,E,D,I) and student growth for the evaluation of classroom teachers not yet subject to §3012-c (i.e. all classroom teachers other than those teaching ELA and Math in grades 4-8). Use of H,E,D,I and growth optional for teacher evaluations conducted under §100.2(o). Note: Some districts may be required to use H,E,D,I and student growth under the School Improvement Grant (SIG) Program.

33. Positioning the District for Success at the Table

34. Section 3012-c Incorporates a Broad Overall Statutory Duty to Bargain Evaluative Procedure Furthermore, nothing in this section or in any rule or regulation promulgated hereunder shall in any way, alter, impair or diminish the rights of a local collective bargaining representative to negotiate evaluation procedures in accordance with. . . [the Taylor Law] sic . . . with the school district or board of cooperative educational services. Education law Sec. 3012-c (8) Albany Supreme Court agrees – just bargain everything 34

35. Reasons for Restatement of Broad Duty to Bargain Procedure? PERB has stated: ". . . the Part 100 Regulation issued by the Commissioner of Education does not serve to reverse the line of cases issued by this Board which have found that the promulgation of employee evaluation procedures constitutes a mandatory subject of bargaining. We find that the Commissioner's Regulation does not supersede the Taylor Law duty to bargain, nor does it evidence a public policy which supersedes the public policy contained in the Taylor Law, that encourages collective bargaining as to terms and conditions of employment." In The Matter Of Newburgh Enlarged City School District, 21 NYPER ¶ 3036. 35

36. Evaluation Procedure vs. Criteria ELWOOD UFSD 10 PERB 3107, (1977): “The criteria and standards for teacher evaluation are a management prerogative.” IN THE MATTER OF THE APPLICATION OF THE BOARD OF EDUCATION OF THE NEWBURGH ENLARGED CITY SCHOOL DISTRICT 22 PERB 7009, (1989) “At issue here is not whether the procedure for the annual evaluation of teachers should be subject to mandatory negotiation. Both PERB and the Court of Appeals have determined that the Taylor Law provisions are applicable. The Commissioner may not make them inapplicable merely by promulgation of his own regulations. If he wishes to remove the procedures for the annual evaluation of teacher performance from mandated collective bargaining, his remedy is to convince the Legislature and the Governor of this State that amendment of the statute is in the best interests of our educational system.” CITY OF COHOES, 31 PERB 3020 (1998) - Impact Of Conversion Theory Of Negotiability 36

37. Specific Key Duties Directions to Negotiate Under §3012-c: A Quick Review Quality Rating Categories? Allocation of subcomponent scores The “Other” 60% of the composite effectiveness score (non-student achievement measures), consistent with State Teaching and Leadership Standards and use of approved rubrics as prescribed in Commissioner’s regulations. (SUBSTANCE and allocation of the measures). The “procedures” that will be used to develop and select local measures of student achievement (20%) (PROCESS for selection only). Procedures for making employment decisions (promotion, retention, tenure, etc.). Appeals Process. Teacher and Principal Improvement Plans (Format only). Procedures for developing Professional Development Program.

38. Quality Rating Categories

39. Quality Rating Categories (Ineffective, Developing, Effective and Highly Effective) No duty, according to 3012-c, to negotiate the categories – fixed by statute. This can be argued to be consistent with case law that criteria is not bargainable, but evaluative procedure is negotiable. Earlier drafts of the Commissioner's regulations noted that the procedures for implementation of these rating categories must be "consistent with the requirements of the Taylor Law". The enacted regulations contain no such a specific direction. However, under the general Section 3012-c(8) provision it can be anticipated that unions will seek to negotiate any number of "procedural“ requirements regarding the categories. 39

40. Minimum and Maximum Score Ranges For Each Overall Quality Rating Category “Cut scores" for the overall rating categories, as well as the division of the overall 100 point composite effectiveness score into 20% for state assessment of student performance, 20% for locally selected measures and the allocation of 60% for non-student measures, are fixed by the Commissioner as authorized by Section 3012-c. Based on section 3012-c providing that the Commissioner will publish "category cut scores", there appears to be no duty to bargain. This item refers to "overall" cut scores. 3012-c(2)(a); 2.6(a)(1). 40

41. 60% non-student performance sub-component of the overall composite effectiveness score

42. 60% non-student performance sub-component of the overall composite effectiveness score Section 3012-c(2)(h) of the statute states, in pertinent part, "The remaining percent of the evaluations, ratings and effectiveness scores shall be locally developed, consistent with the standards prescribed in the regulations of the Commissioner, through negotiations conducted pursuant to article fourteen of the civil service law.“ The cited portions of the APPR regulations leave open to local choice the selection of multiple measures for the 60% non-student performance. The cited statutory section of the statute expressly states that the selection of measures for the 60% non-student performance sub-component of the overall composite effectiveness score is subject to negotiation. Does this include selection of rubric? 30-2.3(b)(4); 30-2.3(d)(ii). Scoring methodology for the assignment of points to locally selected measures Subcomponent cut scores Any remaining teaching standards not addressed in classroom observation must be assessed at least once a year. 42

43. SIMPLISTIC EXAMPLE OF NEGOTIATION OF CHOICE OF PERFORMANCE INDICATORS AND POINT ALLOCATION UNDER THE 60 POINT "NON-STUDENT PERFORMANCE – TEACHER SKILLS RATING SUB-COMPONENT" • Assume District chooses Danielson: 4 domains with 5 to 6 performance indicators - qua "Measures" - within each domain (Total of 22) applicable to both classroom an non-classroom performance. • Assume allocation of equal value to each performance indicator: 60 total points/22 performance indicators = 1.82 “value’ points. • Assume 40 of 60 composite effectiveness points allocated to classroom performance indicators under applicable Danielson domains; assume 20 of 60 composite effectiveness points allocated to classroom performance indicators under applicable Danielson domains for goal setting, parental relationships, participation in "Academy" activities, etc. • Establish 4 quartiles for classroom performance indicators (0-10 value points result in 10 performance indicator points, 11-20 value points result in 20 performance indicator points, 21-30 value points result in 30 performance indicator points, and 31-40 value points result in 40 performance indicator points). • Do likewise for non-classroom performance subcomponent of 20 points • Content of surveys, self-assessment and portfolio review • Assign performance point total within four HEDI categories. • Can high score in 60 point subcomponent overcome ineffective rating in either state or local student performance subcomponents?

44. THE 20% STUDENT PERFORMANCE SUBCOMPONENT TO BE ESTABLISHED LOCALLY

45. IS SELECTION OF MEASURES OF STUDENT GROWTH DATA FOR THE 20% STUDENT PERFORMANCE SUBCOMPONENT TO BE ESTABLISHED LOCALLY NEGOTIABLE? Section 3012-c(2)(e) of the statute states that the locally selected measures of assessment of student performance is to be accomplished in accord with commissioner regulations, “. . . twenty percent 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 regulations of the commissioner and as are developed locally in a manner consistent with procedures negotiated pursuant to the requirements of Article Fourteen of the Civil Service Law.” 3012-c(2)(e); 3012-c(2)(h). Procedure or the actual measure? Supreme Court Albany County says BARGAIN. The decision indicates that the choice of the local assessment is negotiable but fails in any way to explain its deviation from decades of PERB and court precedent drawing a sharp distinction between the negotiability of evaluation criteria in contrast to evaluative procedure; the latter being bargainable while criteria is strictly a non-mandatory subject of collective bargaining. Commissioner's latest Guidance document says only negotiate procedure! Notwithstanding the Decision, with respect to the choice of the local measure of student 16-performance, the Updated Guidance acknowledges the long-standing PERB and court precedent and states, "[t]he Department believes that the selection of assessments and/or measures of student achievement are inextricably intertwined with curriculum decisions and the setting of educational standards, which are the exclusive province of school district and BOCES officials and are not subject to collective bargaining" 45

46. The Argument Against Negotiability of Selection of the 20% Local Assessment Instrument The statute - addressing the 20% of the composite effectiveness score to be developed locally measuring student performance references the negotiations of "procedures" and does not indicate that the local assessment measures themselves must be negotiated. Contrast with the subcomponent of "other non-student performance measures" comprising 60% of the composite effectiveness score that does not reference "procedure" but suggests robust negotiations on the measures to be selected themselves. So - can a School District unilaterally select the 20% local student performance measures and only bargain procedure respecting their selection and use, i.e. the right to review, object to findings, respond to findings, and the like? What is the expected extent of compliance with the validity and reliability requirements of the APA Standards for Educational Testing? 46

47. Types of Measures for 20% Local Assessment Sub-component May use growth or achievement measure from these options: List of State-approved 3rd party, State or Regent-equivalent assessments. (The cause of NYSUT’s withdrawal from cooperation!) District, regional or BOCES-developed assessments provided that the district or BOCES verifies comparability and rigor. School-wide, group or team results based on state or allowable local assessments, provided that the district or BOCES verifies comparability and rigor. Structured District or BOCES-wide goal setting process for use with any state, local, or school (teacher-created) assessment agreed to by evaluator and teacher, provided that the district or BOCES verifies comparability and rigor. 47

48. Caution on locally developed measures of student performance – Validity and Reliability School districts and BOCES can either select a local assessment from a State-approved list of third-party providers, i.e. purchase an assessment, or they may elect to develop their own assessments. The definition for “rigorous and comparable” as utilized in the statute is an extremely high standard to achieve. According to the Regents Rules Part 30-2.4(c)(2)(i), (ii) “rigorous shall mean that the locally selected measure is aligned to the New York State learning standards or, in instances where there are no such standards that apply to a subject/grade level, evidence of alignment to research-based learning standards and, to the extent practicable, the locally selected measure must be valid and reliable as defined by the Testing Standards”, and “. . . (2) For purposes of this section: (i) rigorous shall mean that the locally selected measure is aligned to the New York State learning standards and, to the extent practicable, is valid and reliable as defined by the Testing Standards . . .” (Id.) The “definitions” section of Part 30 of the Regents Rules define “Testing Standards” as “. . . (s) Testing Standards shall mean the “Standards for Educational and Psychological Testing” (American Psychological Association, National Council on Measurement in Education, and American Educational Research Association.” (Regents Rules, Part 30-2.2(t)) This rather high and arguably unachievable standard will likely force school districts to purchase a local assessment from a State-approved third party provider rather than develop their own. However, it is unclear how school districts and BOCES who elect to purchase local assessments from a third-party provider will ensure that such assessments conform to the State-derived scoring method/formula, which has yet to be released. Additionally, it is certain that teacher unions will seek negotiations concerning the “formula” to be applied to convert raw test scores into scoring for use as part of the composite effectiveness score.

49. Negotiable Aspects of the 20% Local Measure of Student Performance • Formula for conversion of raw score? • Allocation of composite effectiveness points among HEDI categories along with cut scores? • Use of commercial instruments: • Example – NWEA reports for each child both an actual performance per test administration and percentile growth over time between current performance and the benchmark performance. • Tie to negotiated cut scores for “value” points for composite effectiveness score.

50. SIMPLISTIC EXAMPLE OF NEGOTIATION OF POINT ALLOCATION UNDER THE 20 POINT “LOCAL STUDENT PERFORMANCE RATING SUB-COMPONENT" • Assume District chooses NWEA: • This product reports test results raw scores for two years, as well as the Growth Target for each student. • Also, reports the “overall percentage of the target raw score” met or exceeded year to year for any particular cohort of students. • Point allocation of the 20 local student performance measure can be negotiated using this data in various ways. For example, if 80% to 100% of students achieve or exceed the growth target, “X” number of points are awarded; if 60% to 79% of students achieve or exceed the growth target, “Y” number of points are awarded, etc.