On September 13, 2022, the NYS Board of Regents finalized the substantial equivalency rules requiring private schools to prove they meet education standards. The rule became effective September 28, 2022.
Education Law currently provides that “instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” In determining equivalency, the local public school and the nonpublic or private school can be best served by working together to ensure such equivalency in curriculum and instruction is in place. This can be tricky if a student attends a nonpublic school outside the district boundaries where the student resides. Nonetheless, the amendments, which include a newly added Part 130 to the Regulations, does place most of the burden on the Local School Authority (LSA) to assess such equivalency.
Below are highlights of the amendments:
- Section 130.2 states that LSA’s are required to determine whether nonpublic schools within their geographical boundaries are substantially equivalent and are to forward a recommendation and supporting documents to the Commissioner for final determination (except for nonpublic schools that are already deemed substantially equivalent or for which the Commissioner is required to make that determination).
- Section 130.3 provides the criteria for whether a nonpublic school shall be deemed substantially equivalent such as a 4201 school. The Commissioner may still request the LSA provide evidence of the determination, and if this is not accepted, the Commissioner shall direct the LSA to conduct a review in accordance with section 130.6 or submit a recommendation to the Commissioner in accordance with section 130.8.
- Section 130.4 describes the timelines for the LSA to perform and submit the results of the review. For a new nonpublic school, the review must occur within the first 2 years of when the nonpublic school commences instruction and every 7 years thereafter. For nonpublic schools that are in existence, the review must be conducted by the end of the 2024-2025 school year and then every 7 years thereafter. If the LSA does not demonstrate sufficient progress towards reviewing the school by the end of the 2023-2024 school year, this may result in the Commissioner withholding public money from the LSA.
- Section 130.5 provides the procedures for conducting the review using the criteria outlined in the regulation. The rules indicate that the LSA superintendent or designee must review all nonpublic schools in the LSA’s geographic boundaries and require that the LSA will include at least one site visit to the nonpublic school.
- Section 130.6 defines the process for preliminary determinations and final determinations. For a preliminary determination that results where the nonpublic school has not sufficiently demonstrated substation equivalence, the LSA must:
- inform the nonpublic school administrator and provide the reasons for the determination
- notify the Department
- collaboratively develop within 60 days a timeline and plan to attain substantial equivalency (the timeline cannot exceed the end of the next academic year following the year in which the preliminary determination was made
- continue services to the nonpublic school during this time period
- render the final determination no later than 60 days at the end of the timeline
For final determinations, the superintendent or designee must make a recommendation to the board of the result of the determination (either “positive” where deemed to be providing at least substantially equivalent instruction or “negative” if it is deemed it is not equivalent). Once the LSA is notified, the LSA must vote on the recommendation at a regular board meeting. If a positive determination, the LSA must provide such notification in writing to the nonpublic school, the superintendent(s) of schools of each of the districts which have resident students enrolled in the nonpublic school, and the Department which must post the determination on its website. If a negative determination, the nonpublic school will NO LONGER be deemed a school that provides compulsory education. The LSA must provide written notification of the determination to the nonpublic school, and the board must provide a reasonable timeframe (not yet defined) for parents or guardians to enroll their child(ren) in a different appropriate educational setting. Services to the nonpublic school and students (e.g., textbooks, special education, transportation, etc.) must continue until the end of the reasonable timeframe (not yet defined).
- Section 130.7 contains various timelines:
- September 1, 2023 and each September 1 thereafter for the LSA to report a list of all nonpublic schools within the LSA geographical boundaries.
- December 1, 2023 and each December 1 thereafter for LSA to report to the Department a list of all nonpublic schools in the LSA’s boundaries that meet and do not meet section 130.3, and the remaining nonpublic schools for which the LSA is responsible for making the final substantial equivalency determination.
- December 1, 2024 and each December 1 thereafter, the LSA is to attest to whether they have or have not yet made final substantial equivalency determinations and recommendations for each of the nonpublic schools within their boundaries.
- Section 130.8 includes the procedures for the Commissioner’s determination of substantial equivalency.
- Section 130.9 provides the criteria for the Commissioner in reviewing a nonpublic school for substantial equivalency.
- Section 130.10 provides the rules for conducting reviews of nonpublic schools.
- Section 130.11 defines the complaint procedures received by the Commissioner. It also states that the Commissioner may withhold public money from an LSA that has not investigated a compliant should the Commissioner have reasonable suspicion to doubt the substantial equivalency of a nonpublic school.
- Section 130.12 provides the process for filing an appeal from an LSA’s substantial equivalency determination.
- Section 130.13 states that the Commissioner may request records and/or documentation an LSA used to make the final determination and the LSA must provide the requested information within 10 days.
- Section 130.14 prescribes the penalties and enforcement for noncompliance.
Stay tuned for more details as the new regulations unfold.
Shari Diamond, CIA
Partner
Shari has been with Cerini & Associates, LLP since 2008 where she works primarily with the firm’s school district clients providing internal audit and claims audit services. She has over twenty years’ experience performing internal audits, risk assessments, and compliance reviews, as well as recommending processes to strengthen the internal controls environment while increasing efficiencies. Her prior experience at PWC and Northrop Grumman included performing Information Technology audits.