1. (1) approved provider shall mean a provider approved by the commissioner pursuant to the provisions of this section for purposes of inclusion on the State Education Department's list of approved supplemental educational services providers;
2. (2) eligible applicant shall mean a local educational agency or a non-profit entity or a for-profit entity authorized to provide the proposed services in New York State, including, but not limited to, a charter school, nonpublic school, board of cooperative educational services or county vocational education and extension board;
3. (3) eligible student shall mean an eligible child, as defined in section 1116(e)(12)(A) of the NCLB, 20 U.S.C. section 6316(e)(12)(A) who is entitled to receive supplemental educational services, subject to the provisions of section 1116(b)(10)(C) of the NCLB, 20 U.S.C. section 6316(b)(10)(C) (Public Law, section 107-110, sections 1116[e][12][A] and 1116[b][10][C], 115 STAT. 1494 and 115 STAT. 1486; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234), and who attends a title I priority or focus school;
4. (4) academic year shall mean the period commencing on September 1st and ending on August 31st the next succeeding calendar year; and
5. (5) supplemental educational services shall have the same meaning as set forth in section 1116(e)(12)(C) of the NCLB, 20 U.S.C. section 6316(e)(12)(C) (Public Law, section 107-110, section 1116[e][12][C], 115 STAT. 1494; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234).
6. (b) A title I LEA may choose to offer supplemental educational services to eligible students who attend a school that is designated as priority or focus.

7. (c) The per pupil spending limit that a local educational agency may provide for supplemental educational services shall be the lesser of the following:

   1. (1) the amount of the LEA's allocation under title I, part A, subpart 2 of the NCLB, divided by the number of children from families below the poverty level counted under section 1124(c)(1)(A) of the NCLB, 20 U.S.C. 6333(c)(1)(A) (Public Law, section 107-110, section 1124[c][1][A], 115 STAT. 1519; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234); or

   2. (2) the actual cost of the supplemental educational services provided to each eligible student.

      (d) Approval of providers.

   3. (1) An eligible applicant that seeks to become an approved provider shall submit to the commissioner a written application in a form and within the time prescribed by the commissioner.

   4. (2) The commissioner shall approve an eligible applicant for inclusion on the department's list of approved supplemental educational service providers, upon the commissioner's determination that its application satisfies each of the following criteria:

      1. (i) the applicant has a demonstrated record of effectiveness in increasing student academic achievement in English language arts (including reading) and/or mathematics;
      2. (ii) the instruction to be provided and content to be used are aligned with State common core learning standards in the areas of English language arts (including reading) and mathematics;
      3. (iii) instruction will be provided under the general supervision of a New York State certified teacher;
      4. (iv) the supplemental educational services are of high quality, research-based and specifically designed to increase the academic achievement of eligible students on the required State assessments in the areas of English language arts (including reading) and mathematics and to attain proficiency in meeting State learning standards in those areas;
      5. (v) the applicant will provide appropriate accommodations and supports to students with disabilities to ensure such students benefit from supplemental educational services;
      6. (vi) the supplemental educational services will be provided outside the regular school day, including, but not limited to, before or after school, weekend or summer sessions;
      7. (vii) letters of reference from parents, schools and/or other appropriate parties who are current or former recipients of the provider services are provided;
      8. (viii) the applicant will require that all individuals employed by, or otherwise associated with, the applicant who will have direct contact with eligible students shall be subject to the fingerprint and criminal history record check requirements contained in law, including, but not limited to, Education Law, sections 305(30), 1125(3), 1604(39) and (40), 1709(39) and (40), 1804(9) and (10), 1950(4)(ll), 1950(4)(mm), 2503(18) and (19), 2554(25) and (26), 2590-h(20), 2854(3)(a-2) and (a-3) and 3035, and Part 87 of this Title;
      9. (ix) the applicant is fiscally sound and will be able to fulfill its agreement to provide services to the eligible child and the local educational agency pursuant to paragraph (f)(8) of this section;
      10. (x) supplemental educational services instruction and content are secular, neutral and nonideological;
      11. (xi) the applicant will comply with all applicable Federal, State and local health, safety, and civil rights laws;
      12. (xii) the applicant will assure that supplemental educational services are available in locations accessible to individuals with disabilities, to the extent required by section 504 of the Rehabilitation Act of 1973 (29 U.S.C. section 794) and the Americans with Disabilities Act (42 U.S.C. section 12101 et seq.);

      13. (xiii) the applicant shall provide additional assurances that:

          1. (a) the instruction and content used are consistent with the instruction provided and content used by the local educational agency and State and are aligned with State learning standards in English language arts (including reading) and/or mathematics;
          2. (b) eligible students with disabilities and eligible students with limited English proficiency will have equal access to services offered by the applicant;
          3. (c) the applicant will not disclose to the public the identity of any student who is eligible for, or receiving, supplemental educational services without the written permission of the parents of the student;
          4. (d) the applicant will not impose additional admission criteria on eligible students;
          5. (e) the applicant will provide parents and teachers of eligible students receiving supplemental educational services and the appropriate title I LEA with information on the progress of such students in increasing achievement in a format, and to the extent practicable, in a language or other mode of communication that such parents can understand;
          6. (f) the applicant has adequate insurance for liability, property loss and personal injury involving students receiving supplemental educational services from the applicant; and
          7. (g) the applicant shall not make any offer or advertisement of rewards, gifts, incentives, gratuities, payments, or compensation of any kind to parents, students, LEAs, LEA staff and/or school staff for purposes of, or tending to have the effect of, soliciting enrollment, encouraging parents to switch providers once students are enrolled, and/or attempting to influence parents, students, LEAs, LEA staff and/or school staff; provided that nothing herein shall be deemed to prohibit the use, as part of the instructional program, of nominal rewards or incentives as defined in subparagraph (f)(8)(xvii) of this section.
   5. (3) Where an applicant uses alternate methods for delivery of services, which may include online, internet-based approaches, as well as other distance-learning technologies, the provision of equipment, including computers, to students to use or keep as a means of receiving such supplemental educational services, must be approved by the commissioner as part of the applicant's instructional program.

   6. (4) Notwithstanding the provisions of this subdivision, each provider on the department’s list of approved supplemental educational services providers as of July 1, 2012 shall, no later than a date determined by the commissioner, submit to the department, in a format prescribed by the commissioner, evidence that, commencing with the 2013-2014 school year, the instruction provided and content used by such provider are aligned with the State common core learning standards in the areas of English language arts (including reading) and mathematics. Any provider who fails to comply with the requirements of this paragraph shall be subject to termination pursuant to subdivision (e) of this section.

      (e) Termination of provider approval.

   7. (1) Approval for inclusion on the department's list of approved supplemental educational services providers shall be withdrawn from a provider for good cause, including, but not limited to, a determination by the commissioner that the provider:

      1. (i) is in noncompliance with one or more of the criteria for approval set forth in subparagraphs (d)(2)(i)-(xiii) of this section;
      2. (ii) has failed for two consecutive years to contribute to increasing the academic proficiency of students receiving supplemental educational services from such provider; and/or
      3. (iii) has failed to comply with paragraph (d)(4) of this section.

   8. (2) Termination of provider approval shall be conducted in accordance with the following procedures:

      1. (i) The commissioner or his/her designee shall notify the provider in writing of the intent to terminate approval at least 30 calendar days prior to the effective date of the termination, including a list of the identified deficiencies and/or violations of State or Federal laws or regulations that are believed to exist.
      2. (ii) The provider may reply in writing within 10 calendar days of receipt of the commissioner's notification, addressing the commissioner's statement of reasons, indicating whether deficiencies and/or violations exist, what steps have been taken to correct conceded deficiencies and/or violations, and the time period and steps by which deficiencies and/or violations will be corrected. If no reply is received, termination and removal from the list will become effective 30 calendar days from the date of receipt of the commissioner's notification.
      3. (iii) Within three business days of receipt of the commissioner's notification, the provider may request oral argument before the commissioner or his/her designee.
      4. (iv) After consideration of any written response and of any oral argument, a determination shall be made whether approval shall be terminated. Notice of such determination shall be provided in writing to the provider.

   9. (3) Notwithstanding the provisions of paragraph (2) of this subdivision, the commissioner may issue an emergency order immediately suspending the provision of services under this section, pending a final determination of the provider's approval status, upon the commissioner's determination that an immediate threat exists to the health and/or safety of students.

      (f) Local educational agency responsibilities.

      A title I LEA that chooses to offer supplemental educational services shall:

   10. (1) select the approved providers from which parents may choose, except that the LEA must select at least two providers who serve students in the grades enrolled in LEA’s priority and focus schools.

   11. (2) notify parents of eligible students annually, in a format and, to the extent practicable, in a language that such parents can understand, of:

       1. (i) the availability of supplemental educational services; and
       2. (ii) the identity of approved providers that the LEA has selected, together with a brief description of the services, qualifications and demonstrated effectiveness of each such provider;
   12. (3) if requested, assist parents in choosing an approved provider;
   13. (4) ensure that, to the extent the LEA chooses to offer supplemental educational services, priority is given to providing the services to the lowest achieving eligible students;
   14. (5) apply fair and equitable procedures for serving eligible students if the number of spaces at approved providers is not sufficient to serve all such students;
   15. (6) not disclose to the public the identity of any student who is eligible for, or receiving, supplemental educational services without the written permission of the parents of the student;
   16. (7) ensure that eligible students with disabilities under the IDEA and eligible students who are individuals with disabilities covered by section 504 of the Rehabilitation Act of 1973 (29 U.S.C. section 794) receive appropriate supplemental educational services and accommodations in the provision of those services;
   17. (8) ensure that eligible limited English proficient students receive appropriate supplemental educational services and language assistance in the provision of those services;

   18. (9) contact providers selected by the parents, from the providers chosen by the district, and enter into a contractual agreement with each such provider that includes:

       1. (i) a statement of specific achievement goals for each eligible student based upon such student's specific educational needs;
       2. (ii) a description of how each such student's progress will be measured;
       3. (iii) a timetable for improving achievement;
       4. (iv) for eligible students with disabilities under the IDEA and eligible students who are individuals with disabilities covered by section 504 of the Rehabilitation Act of 1973 (29 U.S.C. section 794), the goals, method of measurement and timetable set forth in the agreement must be consistent with such student's individualized education program pursuant to the Individuals with Disabilities Education Act or the student's section 504 plan, where applicable;
       5. (v) the initiation date, frequency and duration of services to be provided;
       6. (vi) the location where services will be provided;
       7. (vii) a description of how each eligible student's parents, teacher(s) and the local educational agency will be regularly informed, at least quarterly, of the student's progress;
       8. (viii) a provision for termination of the agreement if the provider is unable to meet the goals and timetables;
       9. (ix) a provision that the term of the agreement shall not exceed the end of the academic year in which the student first received such services;
       10. (x) a provision that the agreement will terminate immediately upon the provider's removal from the department's list of approved supplemental educational services providers, pursuant to subdivision (e) of this section;
       11. (xi) payment provisions based on eligible student attendance and delivery of supplemental educational services;
       12. (xii) an assurance from the provider that the identity of any student who is eligible for, or receiving, supplemental educational services will not be disclosed without the written permission of the parents of the student;
       13. (xiii) a description of the program to be used;
       14. (xiv) the experience and qualifications of staff responsible for the delivery of the instructional program, including an assurance that instruction will be provided under the general supervision of a New York State certified teacher;
       15. (xv) provisions that subject all individuals employed by, or otherwise associated with, the provider who will have direct contact with students, to the fingerprint and criminal history record check requirements contained in law, including, but not limited to, Education Law, sections 305(30), 1125(3), 1604(39) and (40), 1709(39) and (40), 1804(9) and (10), 1950(4)(ll), 1950(4)(mm), 2503(18) and (19), 2554(25) and (26), 2590-h(20), 2854(3)(a-2) and (a-3) and 3035, and Part 87 of this Title;
       16. (xvi) a requirement that the provider submit to the title I LEA, annually on or before September 30th, a final written report in a form prescribed by the commissioner that summarizes the progress of eligible students provided with supplemental educational services during the preceding academic year, pursuant to its agreement(s) with the local educational agency;

       17. (xvii) a provision stating: "The provider is prohibited from making any offer or advertisement of rewards, gifts, incentives, gratuities, payments, or compensation of any kind to parents, students, LEAs, LEA staff and/or school staff for purposes of, or tending to have the effect of, soliciting enrollment, encouraging parents to switch providers once students are enrolled, and/or attempting to influence parents, students, LEAs, LEA staff and/or school staff; provided that nothing herein shall be deemed to prohibit the use, as part of the instructional program, of nominal rewards or incentives as defined in 8 NYCRR section 120.4(f)(8)(xvii)." For purposes of this subparagraph, a nominal reward or incentive is defined as an award or incentive that:

           1. (a) does not exceed a total value of $25 per student per year;
           2. (b) is directly linked to documented meaningful attendance benchmarks and/or completion of assessment and program objectives; and
           3. (c) is approved by the commissioner as part of the provider's instructional program;

   19. (10) monitor the following:

       1. (i) the quality and effectiveness of the services offered by each approved provider the local educational agency has contracted with; and

       2. (ii) the responsibilities of each approved provider with which the title I LEA has contracted with to:

          1. (a) ensure that the instruction provided and content used are consistent with the instruction provided and content used by the appropriate title I LEA and the State, and are aligned with the State common core learning standards in the areas of English language arts (including reading) and mathematics;
          2. (b) provide parents and teachers of all students receiving supplemental educational services, the title I LEA and the school with information on the progress of the students in increasing achievement, in a format and, to the extent practicable, in a language that such parents can understand;
          3. (c) ensure that supplemental educational services instruction and content are secular, neutral and nonideological and that funds will not be used for religious worship or instruction;
          4. (d) comply with all applicable Federal, State, and local health, safety, and civil rights laws; and
          5. (e) comply with the applicable contractual agreement pursuant to paragraph (8) of this subdivision;
   20. (11) notify the State Education Department of any noncompliance by an approved provider with respect to the provider's responsibilities as listed in subparagraph (9)(ii) of this subdivision, including immediate notification of the department of any noncompliance involving a threat to the health and/or safety of students;
   21. (12) submit to the State Education Department, annually on or before October 31st, a monitoring report of supplemental educational services provided during the preceding academic year, in a form prescribed by the commissioner, together with a copy of each provider's report prepared pursuant to subparagraph (8)(xvi) of this subdivision.

(a) Definitions.

As used in this section: