1. (a) Pupils with limited English proficiency (or English language learners) shall mean students who by reason of foreign birth or ancestry, speak a language other than English and:

   1. (1) either understand and speak little or no English; or
   2. (2) score below a State designated level of proficiency, on the Language assessment battery-revised (LAB-R) prior to February 1, 2014, or on the New York State identification test for English language learners (NYSITELL) commencing February 1, 2014 and thereafter, or on the New York State English as a second language achievement test (NYSESLAT); provided, however, that no student shall be served in a bilingual or English as a second language education program pursuant to this Subpart for a period in excess of three years from the date of enrollment in school unless such period is extended by the commissioner with respect to an individual student in accordance with the provisions of subdivision 2 of section 3204 of the Education Law.
2. (b) Initial identification is the process followed to determine if the student is limited English proficient, at the time of the student's enrollment in the New York State public school system for the first time or at the time of the student's reentry into the New York State public school system with no available record of prior screening, based upon such student scoring below a State designated level of proficiency on the LAB-R prior to February 1, 2014, or on the NYSITELL commencing February 1, 2014 and thereafter.
3. (c) Annual English language assessment is the process followed to determine if a student with limited English proficiency continues to be limited English proficient, based upon such student scoring below a State designated level of proficiency on the NYSESLAT.

4. (d) For grades kindergarten through 12, free-standing English as a second language program shall mean a program of instruction composed of two components: a language arts instructional component and a content area instructional component. Such instruction shall take into account the first language and culture of such students.

   1. (1) The language arts instructional component shall include English language arts instruction and English as a second language instruction. The learning standards for English language arts (ELA) and English as a second language (ESL), and key ideas and performance indicators for such standards, shall serve as the basis for the ELA and ESL curriculums, respectively.

      1. (i) English language arts instruction shall be provided to students at the advanced level of English language proficiency for a minimum of one unit of study or its equivalent, divided into substantially equal daily allotments of instructional time.

      2. (ii) English as a second language instruction shall be designed to develop skills in understanding, speaking, reading, writing and communicating in English through the integration of academic content appropriate for the pupil's age, grade level and English language skills, and shall be provided in substantially equal daily allotments of instructional time to:

         1. (a) students in grades kindergarten through eight at beginning and intermediate levels of English language proficiency for a minimum of two units of study or its equivalent;
         2. (b) students in grades kindergarten through eight at advanced levels of English language proficiency for a minimum of one unit of study or its equivalent;
         3. (c) students in grades nine through 12 at the beginning level of English language proficiency for a minimum of three units of study or its equivalent;
         4. (d) students in grades nine through 12 at intermediate levels of English language proficiency for a minimum of two units of study or its equivalent;
         5. (e) students in grades nine through 12 at an advanced level of English language proficiency for a minimum of one unit of study or its equivalent.
   2. (2) The content area instructional component shall provide grade and age level appropriate instruction in the required content area subjects in English supported by English as a second language methodologies, employed in a systematic and structured way, and shall be designed to develop cognitive skills of English language learners.

5. (e) For grades kindergarten through 12 bilingual education program shall mean a program of instruction composed of two components: a language arts instructional component, and a content area instructional component. Such instruction shall take into account the first language and culture of such students.

   1. (1) The language arts instructional component shall include English language arts (ELA) instruction, native language arts (NLA) instruction and English as a second language (ESL) instruction. The learning standards for ELA and ESL, and key ideas and performance indicators for such standards, shall serve as the basis for the NLA and ESL curricula.

      1. (i) English language arts instruction shall be provided to students at the advanced level of English language proficiency for a minimum of one unit of study or its equivalent, divided into substantially equal daily allotments of instructional time.
      2. (ii) English as a second language (ESL) instruction shall be designed to develop skills in understanding, speaking, reading, writing and communicating in English through the integration of academic content appropriate for the student's age, grade level and English language skills. The time requirements for ESL instruction within a bilingual education program shall be the same as those established for the ESL instruction within a free-standing ESL program, as prescribed in subdivision (d) of this section.
      3. (iii) Native language arts instruction shall be provided to students in a bilingual education program for at least one unit of study or its equivalent and shall be provided in substantially equal daily allotments of instructional time.

   2. (2) The content area instructional component shall provide grade and age level appropriate instruction in the required content area subjects in the native language and English, in a systematic and structured way, and shall be designed to develop the cognitive skills of English language learners.

      (f) Exception.

      A school district, which is subject to a court order or is a party to a preexisting agreement with an appropriate Federal agency requiring programs substantially equivalent to or in excess of those required under these regulations, will not be required to comply with these regulations and will be in compliance with this Subpart as long as the district implements the court order or agreement and fulfills all other requirements of this Subpart which are not addressed by such court order or agreement.

As used in this Subpart: