N.Y. Comp. Codes R. & Regs. tit. 8, § 30-2.16 – Challenges to State-provided growth scores.

(a) A teacher/principal shall have the right to challenge their State-provided growth score under this Subpart; provided that the teacher/principal provides sufficient documentation that he/she meets at least one of the following criteria in their annual evaluation:
1. (1) a teacher/principal was rated ineffective on his/her State-provided growth score and highly effective on the observation/school visit category in the current year and was rated either effective or highly effective on his/her State-provided growth score in the previous year; or
2. (2) a high school principal of a building that includes at least all of grades 9-12, was rated ineffective on the State-provided growth score but such percent of students as shall be established by the commissioner in his/her school/program within four years of first entry into grade 9 received results on department-approved alternative examinations in English language arts and/or mathematics as described in section 100.2(f) of this Title (including, but not limited to, advanced placement examinations, and/or International Baccalaureate examinations, SAT II, etc.) scored at proficiency (i.e., a Level 3 or higher).
(b) A teacher/principal shall submit an appeal to the department, in a manner prescribed by the commissioner, within 20 days of receipt of his/her overall annual professional performance review rating or the effective date of this section, whichever is later, and submit a copy of the appeal to the school district and/or BOCES. The school district and/or BOCES shall have 10 days from receipt of a copy of such appeal to submit a reply to the department.
(c) Based on the documentation received, if the department overturns a teacher’s/principal’s rating on the State-provided growth score, the district/BOCES shall substitute the teacher’s/principal’s results on the back-up SLO developed by the district/BOCES for such teacher/principal. If a back-up SLO was not developed, then the teacher’s/principal’s overall composite score and rating shall be based on the portions of their annual professional performance review not affected by the nullification of the State-provided growth score. Provided, however, that following a successful appeal under paragraph (a)(1) of this section, if a back-up SLO is used a teacher/principal shall not receive a score/rating higher than developing on such SLO.
(d) An evaluation that is the subject of an appeal shall not be sought to be offered in evidence or placed in evidence in any proceeding conducted pursuant to Education Law sections 3020-a and 3020-b or any locally negotiated alternate disciplinary procedure until the appeal process is concluded.
(e) Nothing in this section shall be construed to alter or diminish the authority of the governing body of a district to grant or deny tenure to or terminate probationary teachers or probationary building principals during the pendency of an appeal pursuant to this section for statutorily and constitutionally permissible reasons, including the teacher’s/principal’s performance that is the subject of the appeal.
(f) Nothing in this Subpart shall be construed to authorize a teacher/principal to commence the appeal process prior to receipt of his/her overall rating from the district/BOCES.
(g) During the pendency of an appeal under this section, nothing shall be construed to alter the obligation of a school district/BOCES to develop and implement a teacher improvement plan or principal improvement plan during the pendency of an appeal.
(h) Nothing in this section shall be construed to limit any rights of a teacher/principal under section 30-2.11 of this Subpart.
(i) Notwithstanding any other provision of rule or regulation to the contrary, a high school principal of a building that includes at least all of grades 9-12 who meets either of the criteria in paragraph (1) or (2) of this subdivision shall not receive a State-provided growth score and shall instead use back-up SLOs:
1. (1) the principal would be rated ineffective or developing on the State-provided growth score but the graduation rate of the students in that school building exceeded 90 percent, and the proportion of the student population included in either the ELA Regents median growth percentile or the algebra Regents median growth percentile was less than 10 percent of the total enrollment for the school; or the principal; or
2. (2) the principal has no combined median growth percentile rating or score, and the proportion of the student population included in the ELA Regents median growth percentile and Algebra Regents median growth percentile was less than five percent of the total enrollment for the school in one subject, and less than 10 percent of the total enrollment in the other subject;
3. (3) if a back-up SLO was not developed, then the principal’s overall composite score and rating shall be based on the remaining portions of their annual professional performance review.