Audit Report on the Department of Education’s Compliance with Regulations Regarding English Language Learners Audit

Audit Impact

Summary of Findings

The audit found that DOE did not comply with certain State regulations and its own internal policies regarding the identification of English Language Learners (ELL), program placement, service provision, and records retention. Consequently, ELL students did not receive or were delayed in receiving services they were entitled to, and ultimately, did not have equal access to school programs and services.

Based on a review of DOE records for sampled ELL students, DOE failed to provide a significant percentage of ELLs with required courses, did not satisfy minimum instruction times, and did not ensure that they were taught by appropriately qualified teachers. In addition, DOE sometimes did not place students in the correct ELL program.

DOE also failed to create Bilingual Education Programs and did not maintain accurate and complete waitlists for these programs.

DOE did not maintain required records evidencing that parents/guardians were informed of their rights and ELL program options or documenting their program selection. Further, DOE did not centrally record or analyze parents’/guardians’ responses to surveys following orientation sessions.

Intended Benefits

This audit assessed whether the New York City Department of Education (DOE) complied with State regulations and internal policies for ELL identification, instruction, and recordkeeping, as well as parent/guardian orientation sessions and program choice. The audit identified several needed improvements, including the need for implementing or further developing tracking and monitoring systems to ensure that students receive required courses and instruction time and are served by appropriately qualified teachers. In addition, DOE should continue its efforts to recruit more qualified teachers and create bilingual programs in high-demand school districts. DOE should also implement procedures and continue to conduct audits and inspections to ensure that critical documentation is collected and retained in students’ files, accurately recorded in systems of record, and analyzed and acted upon.

Introduction

Background

School districts receiving New York State foundation aid, which includes the New York City Department of Education (DOE), are required to provide ELL students with equal access to all school programs and services offered to non-ELL students.^[1] New York State Education Law §3204 and the New York State Education Department Commissioner’s Regulation Part 154 (CR Part 154) define ELLs as students who speak or understand a language other than English, speak or understand little or no English, and require support to become proficient in English. ELLs must be identified through a process governed by CR Part 154. This process must be performed upon a student’s initial enrollment or reentry in a public school.^[2]

CR Part 154 establishes standards for services provided to ELL students. The purpose of CR Part 154 is to ensure that ELL students are provided with opportunities to achieve the same educational goals and standards that have been established by the Board of Regents for all students. CR Part 154 includes standards for the ELL identification process; notification to parents/guardians about their child’s English language proficiency level, entitlement to ELL services, and program options; ELL program placement; provision of services; and retention of records. ELL services are also governed by the DOE’s Policy and Reference Guide for Multilingual Learners/English Language Learners (DOE Policy and Reference Guide).

ELL Identification Process

The CR Part 154 ELL identification process begins with qualified personnel administering a Home Language Identification Survey (HLIS) to parents/guardians to determine whether a language other than English is spoken at home, and interviewing students and reviewing their abilities or work samples. This information is used to determine whether students should be administered the New York State Identification Test for English Language Learners (NYSITELL).

Based on the NYSITELL test results, students are categorized as either Entering, Emerging, Transitioning, Expanding, or Commanding. Students who score below Commanding are considered ELLs and entitled to receive ELL services in a Bilingual Education or English as a New Language (ENL) program. Their proficiency level is a factor in determining the type and amount of ELL instruction they will receive and staffing requirements. NYSITELL results also provide information about students’ relative strengths in listening, reading, writing, and speaking English, and help guide teachers’ instruction.

Notification to Parents/Guardians of Entitlement to ELL Services, Program Options, and Placement

Once an ELL student is identified, the school must send a written notice to parents/guardians of the student’s proficiency level and entitlement to receive ELL services in their preferred language (DOE Entitlement Letter). This notice also provides them with information about a parent orientation session which covers ELL program goals and requirements in the language they best understand.

At the orientation, parents/guardians must be provided with information about Bilingual Education and ENL Programs, and they must be notified that, if available, Bilingual Education will be the default program. When a Bilingual Education Program is not available, schools must inform parents/guardians how they will offer support in the student’s home language. This may include transferring their child to another school in the district.^[3] The notice must also inform parents/guardians that they may choose to place their child in an ENL Program if they do not want to enroll them in the Bilingual Education Program.

CR Part 154 states that school districts must give parents/guardians 10 school days to sign and return a statement either agreeing to place their child in a Bilingual Education Program or directing placement in an ENL Program. The DOE Policy and Reference Guide provides a more restrictive timeframe of five school days. If parents/guardians do not return signed notifications to the school within five school days, the student is defaulted to the school’s Bilingual Education Program, if available. If not available, the student is defaulted to an ENL Program.

DOE distributes the ELL Parent Survey and Program Agreement Form to parents/guardians at orientation sessions. This form is available in multiple languages and contains descriptions of Bilingual Education and ENL Programs, program availability in the student’s school (and within their district), and the student’s provisional program placement. It also documents parents/guardians’ ELL program selection. In addition, the form surveys parents/guardians about the information they received at orientation sessions, whether information was communicated in their preferred language, interpretation services were offered, and whether they had the opportunity to ask questions.

As stated in DOE’s Policy and Reference Guide, upon receiving completed Parent Survey and Program Forms, schools must send Placement Letters to parents/guardians in their preferred language to confirm their child’s placement in ELL programs.

If a parent or guardian does not attend an orientation session or return the ELL Parent Survey and Program Agreement Form within five school days, the student is defaulted to a Bilingual Education Program, if available. Otherwise, the student is defaulted to the ENL Program. Schools must notify parents/guardians by sending a Default Program Placement Letter in their preferred language.

In accordance with the Aspira Consent Decree, DOE Policy and Reference Guide requires schools to administer the Spanish Language Assessment Battery (Spanish LAB) to newly identified ELL students whose home language is Spanish. The Spanish LAB provides support to schools in designing and implementing effective strategies to deliver Bilingual Education and ENL services to students. The results of the Spanish LAB do not determine a student’s ELL status or the services that should be provided.

Schools are required to complete the ELL identification process within 10 school days of enrollment for general education students, or within 20 school days for students entering school with an Individualized Education Program (IEP).^[4]

ELL Programs and Requirements

CR Part 154 states that every school district must provide ELLs with either a Bilingual Education or ENL Program. Bilingual Education Programs comprise three components: (1) language arts instruction, including Home Language Arts and English Language Arts; (2) ENL instruction; and (3) bilingual content area instruction (i.e., math, science, and social studies).

DOE offer two different types of Bilingual Education Programs—Dual Language Bilingual Education (DLBE) Program and Transitional Bilingual Education (TBE) Program. DLBE Programs are designed to continue developing students’ home languages and developing English language skills. In this program, ELL students receive half of their instruction in their home language and the remainder in English. In TBE Programs, as students develop English language skills, instructional time in their home language decreases.

ENL Programs focus on English language acquisition and comprise two components: (1) content area instruction in English (i.e., English language arts, math, science, and social studies), with support in their home language; and (2) English language development, in which students are taught to read, write, and speak English.

In addition, CR Part 154 establishes minimum requirements for instructional time, known as units of study. This is based on the student’s level of English language proficiency, grade level, and ELL program type. CR Part 154 also establishes requirements for teacher qualifications and minimum professional development hours to address the needs of ELLs. (Please see Appendices I through IV for instructional time requirements and Appendix V for teacher certification requirements.)

ELL Enrollment

From School Years 2021–22 to 2023–24, DOE reported that the number of ELLs increased from 148,933 to 174,014, as detailed in Table 1 below. This represents an increase of 25,081 students, or 16.8%. ELL students represented 16.2–19.1% of total student enrollment during the period from SY2021 to SY2024. In each of these years, most students were placed in ENL Programs.

Table 1: ELL Enrollment by Program Type for School Years 2021–22 2023–24

For SY 2023–2024, DOE reported that most ELLs had a home language of Spanish, followed by Chinese, Russian, Arabic, and Bengali. Table 2 below shows the top 10 home languages for ELLs.

Table 2: Top 10 Home Languages for ELLs for School Year 2023–24

DOE uses the Automate the Schools system (ATS) to collect and report student information, including information about the ELL identification process, and the Student Transcript and Academic Reporting System (STARS) for course enrollment information.

Objective

The objective of this audit was to determine whether DOE complies with CR Part 154 and other relevant laws, rules, and regulations.

Discussion of Audit Results with DOE

The matters covered in this report were discussed with DOE officials during and at the conclusion of this audit. An Exit Conference Summary was sent to DOE on August 11, 2025 and discussed with DOE officials at an exit conference held between July 30, 2025 and August 1, 2025. On August 11, 2025, we submitted a Draft Report to DOE with a request for written comments. We received a written response from DOE on August 22, 2025. In its response, DOE agreed with nine of 10 recommendations, and disagreed with one.

DOE’s written response has been fully considered and, where relevant, changes and comments have been added to the report.

The full text of the DOE’s response is included as an addendum to this report.

Detailed Findings

The audit found that DOE did not comply with certain CR Part 154 requirements, the Aspira Consent Decree, or the DOE Policy and Reference Guide. Consequently, students are not receiving ELL services to which they are entitled.

Based on a review of DOE records for sampled ELL students, DOE failed to provide a significant percentage of ELLs with required courses, did not satisfy minimum instruction time, and did not ensure that they were taught by qualified educators who held the appropriate certifications and received required professional development instruction. In addition, DOE sometimes did not place students in the correct ELL program.

DOE also failed to create Bilingual Education Programs and did not maintain accurate and complete waitlists for these programs.

As a result, ELL students did not have equal access to school programs and services.

The audit found poor recordkeeping practices across the board. DOE did not create central records or analyze responses to surveys following orientation sessions and did not maintain documentation to demonstrate that schools consistently informed parents/guardians of bilingual program options within districts, or other information needed to make informed decisions about their children’s education. DOE often did not maintain Parent Survey and Agreement Forms or Default Program Placement Letters and therefore lacks evidence that parents/guardians were informed of their rights, ELL program options, or selections made for individual children.

The audit also found that DOE did not consistently or adequately administer the ELL identification process or complete the process for certain students in a timely manner. Because of this, affected students did not receive—or were delayed in receiving—mandated ELL services.

DOE Failed to Provide ELL Students with Required Services

DOE failed to provide sampled ELL students with services as required by CR Part 154.

DOE did not provide minimum ELL instructional time or courses, did not ensure that qualified teachers instructed students, and in some cases, did not place students in the ELL program chosen by their parents/guardians. ELL students were impacted by one or more of these issues.

Since DOE did not place students in correct ELL programs or provide them with mandated services, parents and guardians were not able to participate in their children’s education. Additionally, students did not have equal access to services or opportunities that would allow them to achieve the same educational goals and standards as non-ELL students.

ELL Students Did Not Receive Mandated Instruction

The DOE Policy and Reference Guide states that schools should program ELL students for a minimum number of minutes of English as a New Language (ENL) instruction and bilingual program requirements prescribed by the State. However, for 145 of 301 (48.2%) sampled ELL students, DOE did not provide required courses, or the minimum number of minutes of ENL, or bilingual instruction time.^[7] Of the 145 students, 124 students were enrolled in Bilingual Education Programs but did not receive required minimum instruction time or courses, including the Home Language Arts class or bilingual core content courses. The remaining 21 students were enrolled in the ENL Program and did not receive minimum instruction time or Stand-Alone ENL or Integrated ENL courses.

CR Part 154 establishes requirements for providing ELL students with specified instructional hours, known as units of study. Requirements are based on the student’s English language proficiency level which is determined by their NYSITELL score, grade level, and ELL program type.^[8]

Each month, DOE distributes an ELL Data Update Report to field support staff, principals, and superintendents. This report provides information as to whether schools programmed ELL students were enrolled in Bilingual Education Programs and received the minimum ENL instruction time, based on their proficiency level. However, the report does not detail whether ELL students in Bilingual Education Programs were enrolled in Home Language Arts or bilingual core content courses in accordance with CR Part 154. DOE officials acknowledged that monitoring needs to be improved but stated that they have not been able to do so because of staffing shortages, system limitations, and data reliability issues.

In addition, DOE stated that each year, ML/ELL School Support Survey visits are conducted for a sample of schools. For School Year 2022–23, DOE stated that site visits were conducted for 329 sampled schools. Of those, DOE conducted policy and instruction reviews for 236 schools and only policy reviews for 93 schools. As part of the visits, ML/ELL staff check whether schools: (1) program ELL students for the correct number of minutes of Stand-Alone and Integrated ENL instruction, and (2) program students in Bilingual Education Programs for Home Language Arts and bilingual core content courses. Because DOE did not meet mandated instructional requirements for nearly half of the sampled ELLs, DOE’s monitoring tools are ineffective.

At the exit conference, DOE officials stated that they are continuing to develop business rules for monitoring reports for ELL students in Bilingual Education Programs to determine whether they were enrolled in Home Language Arts or bilingual core content courses in accordance with CR Part 154. DOE stated that preliminary checks were built into internal dashboards and relevant staff were trained, but the agency is still fine-tuning the query to ensure accurate compliance tracking. The bilingual programming rules are still in development and currently undergoing testing.

In its formal written response, DOE stated that nine of the 145 students cited above should not have been included in the sample because ATS records indicated that they did not have language acquisition needs. However, based on ATS records, DOE administered the NYSITELL to all 9 of these students and  all scored below commanding level, indicating that they did in fact have language acquisition needs. This finding has therefore not been modified.

ELL Students Were Not Taught by Qualified Teachers

Based on the auditors’ review of certification data for teachers who were assigned to teach the 301 sampled ELL students, 122 (40.5%) students were served by one or more teachers who did not have the required certifications. CR Part 154 establishes requirements for personnel qualified to teach Stand-Alone ENL, Integrated ENL, and Home Language Arts classes. Requirements include the English to Speakers of Other Languages (ESOL) certification, which qualifies teachers to work with ELL students by providing specialized instruction in English language acquisition; and the bilingual education extension (an extension to the teacher’s existing certification), which ensures that a teacher is qualified to teach students in both their native languages and English.

DOE officials stated that the agency receives teacher certification data from the New York State Education Department and uses this information to determine whether students in ENL Programs are served by at least one certified teacher. ENL programming information is included in the ELL Data Update Report, which is distributed to field support staff, principals, and superintendents. If a school is identified as not serving ELL students with qualified teachers, this should be discussed with Principals during ML/ELL School Support Survey visits.

However, DOE conducts annual tests to determine whether students are programmed to receive at least one minute of instruction from a certified teacher. DOE does not test to ensure that all ENL instruction is provided by appropriately qualified teachers. Furthermore, DOE does not check whether ELL students in bilingual programs are served by appropriately qualified teachers. DOE officials acknowledged that the agency’s monitoring of teacher qualifications needs to be improved but stated that to date it has not been able to develop business rules to test compliance with CR Part 154 requirements. This is despite the requirements being in place since SY2015-16.

Because of inadequate monitoring, approximately 40.5% of the sampled ELL students were taught by teachers who were not certified in ENL or bilingual education. This raises concerns about the instructional quality, the effectiveness of services provided to ELL students, and students’ English language development and overall academic achievement.

DOE officials stated that there is a shortage of qualified teachers. Officials said that the agency has conducted targeted outreach to recruit traditional teacher candidates from local schools and alternative-certification teacher candidates through the NYC Fellows Program and Empire State Residency Program. In addition, DOE offers subsidies to non-pedagogical employees to attend teacher preparation programs, and also offers financial incentives to existing teachers to earn bilingual extensions or switch their existing teaching certificates to bilingual special education.  DOE also partnered with higher education institutions and supported their efforts to develop additional bilingual education and ENL teachers.

Despite these efforts, DOE officials stated that they continue to experience staffing shortages, especially in high-need areas such as bilingual education, special education, core academic subjects, and underserved geographic regions.

In its formal written response, DOE stated that three of the 122 students cited above should not have been included in the sample because ATS records indicated that they did not have language acquisition needs. However, based on ATS records, DOE administered the NYSITELL to all 3 students and all scored below commanding level, indicating that they did in fact have language acquisition needs. This finding has therefore not been modified.

DOE Does Not Ensure that Teachers Receive Training Required to Address the Needs of ELLs

New York State Education Law requires individuals holding a professional certificate in classroom teaching to register to practice in the state and complete 100 hours of Continuing Teacher and Leader Education (CTLE) every five years.

CR Part 154 requires school districts to provide professional development to teachers to address the needs of ELL students. For each teaching certificate, CR Part 154 prescribes the minimum percentage of required professional development (i.e., CTLE) hours that must be dedicated to language acquisition. All teachers must spend at least 15% of their CTLE hours on language acquisition, while teachers with ESOL certifications or bilingual extensions must spend 50% of their time.^[9]

The audit found that DOE does not monitor whether educators meet the required CTLE hours or the percentage of CTLE hours devoted to language acquisition. DOE stated that it is the teacher’s responsibility to keep a log of their 100 CTLE hours and to report them to the State every five years. However, at the start of each school year, school districts are required to submit New York State Education Commissioner assurances that teachers received the required number of professional development hours. Such assurances cannot be given in good faith without verification that individual teachers have met the requirements.

DOE has not implemented internal oversight mechanisms to track whether teachers, particularly those serving ELLs, are completing the required professional development or meeting the language acquisition training thresholds. DOE instead relies on individual educators to self-monitor and report their CTLE hours to the State. Without monitoring CTLE hours, DOE cannot ensure that its teachers are receiving the professional development necessary to meet the language acquisition needs of ELL students. This may impact students’ language development, academic progress, and overall educational experience.

ELL Students Were Not Placed in the Correct Program

In accordance with DOE’s Policy and Reference Guide, DOE distributes the ELL Parent Survey and Program Agreement Form to parents/guardians at orientation sessions. This form contains descriptions of Bilingual Education and ENL Programs, program availability in the student’s school and within their district, indicates the student’s provisional program placement, and documents parents/ guardians’ ELL program selection.

Parents/guardians can choose to place their child in a Transitional Bilingual Education (TBE), Dual Language Bilingual Education (DLBE), or ENL Program. If a bilingual program is not available at their child’s school, they may accept placement in an ENL Program and request to be added to a list to be placed in a bilingual program when there are enough students to form one. Alternatively, parents/guardians can request to transfer their child to a school that offers a bilingual program.

The DOE Policy and Reference Guide states that schools are responsible for entering the parents/guardians’ ELL program selection in Automate the Schools (ATS). Parents/guardians’ first choice on the form should be entered, regardless of whether that program is currently offered at the school. Students are placed in one of the three ELL programs (ENL, DLBE, or TBE) based on parent selection. In addition, the guide states that the ELL Parent Survey and Program Agreement Form is the “formal record of the parent’s preference of ELL program for their child and must be retained in the student’s permanent record and accessible for State or City audits and reviews.”

If a parent or guardian does not attend an orientation session or return the ELL Parent Survey and Program Agreement Form within five school days, the student is defaulted to a Bilingual Education Program, if available. Otherwise, the student is defaulted to the ENL Program. Schools should notify parents/guardians by sending a Default Program Placement Letter in their preferred language.

DOE did not retain ELL Parent Survey and Program Agreement Forms or Default Program Placement Letters in students’ files for 110 of 349 (31.5%) sampled ELL students who had a NYSITELL score below Commanding, as required. Since schools did not maintain records showing evidence of program selection, the audit team could not determine—and DOE cannot be reasonably assured—whether parents/guardians were given necessary information to select the appropriate ELL program, informed of their rights, or able to make the final decision for program selection, or that students were placed in the correct program.

In addition, DOE did not place (or may not have placed) 34 (9.7%) ELL students in the correct program, because school staff did not accurately record parents/guardians’ first program choices in ATS (21 students), or did not record parents/guardians’ choices at all (10 students). For example, in some cases parents/guardians requested that their child be placed in a Bilingual Education Program, but school staff recorded their preference as ENL.

For the remaining three students, parents/guardians requested that their children be transferred to another school and placed in a Bilingual Education Program, but they were not transferred and remained in ENL Programs.[10] DOE maintained that some parents/guardians chose not to go forward with transfer requests because their children would have had to travel too far or a bilingual program was not offered at any school within the district. In other cases, DOE maintained that parents/guardians inadvertently requested transfers. However, DOE did not provide documentation of parents’/guardians’ decisions, offering only letters from school principals or other school staff. In cases where parents/guardians’ decisions were not honored, students did not receive appropriate instruction.

As part of DOE’s ML/ELL School Support Survey visits, ML/ELL staff check whether schools have procedures in place to ensure that ELLs were appropriately placed and programmed in the Student Transcript and Academic Reporting System (STARS) in a Bilingual Education Program or ENL Program. In addition, staff randomly select five to 10 student files to see whether required documentation has been maintained, including the ELL Parent Survey and Agreement Form.

Because DOE did not maintain records for 31.5% of sampled students as required, DOE’s oversight appears to be ineffective.

In its formal written response, DOE stated that one of the 34 students cited above should not have been included in the sample because ATS records indicated that they did not have language acquisition needs. However, based on ATS records, DOE administered the NYSITELL to the student in question who scored below commanding level, indicating the existence of  language acquisition needs. This finding has therefore not been modified.

DOE Did Not Implement Bilingual Education Programs as Required

CR Part 154, as amended by the Aspira Consent Decree, requires school districts to create  Bilingual Education Programs if there are 15 or more ELL students in grades K-8 who speak the same home language (other than English) in two contiguous grades, or if there are 20 or more ELL students in high school who speak the same home language in one grade. School districts may seek a one-year exemption from this requirement (known as a Bilingual Education Program Waiver) for low-incidence languages.^[11] Districts can request waivers for no more than five consecutive years. To qualify, districts must submit evidence demonstrating adequate efforts to recruit qualified bilingual teachers and plans to intensify recruitment efforts and provide alternate home language supports.

For SY2024–25, DOE requested 150 Bilingual Education Program Waivers. Of those 150 waivers, 146 exceeded the five-year exemption limit. DOE improperly requested waivers for six consecutive years and did not implement Bilingual Education Programs for schools located in 17 districts: seven in Brooklyn (Districts 15, 17, 18, 19, 20, 21, and 22), six in Queens (Districts 24, 25, 27, 28, 29, and 30), three in the Bronx (Districts 8, 11, and 12), and one in Manhattan (District 2), as detailed in Table 3 and Figure 1 below.^[12] Districts 20, 21, and 22 located in South Brooklyn accounted for 79 of the 146 (54.1%) improper waiver requests.

Table 3: Improper Bilingual Education Waiver Requests by District

Figure 1: Improper Bilingual Education Waiver Requests by District

Of the 146 improper Bilingual Education Program Waiver requests, the vast majority (129) were submitted for elementary and middle schools. The remaining 17 requests were for high schools. Waiver requests were submitted for 15 different languages, with Russian, Bengali, Arabic, Uzbek, and Haitian Creole among the top languages. Waivers were also requested for Tadzhik (Tajik), Ukrainian, Punjabi, French, Urdu, Gujarati, Fulani, Wolof, Nepali, and Georgian.

Table 4 below shows the number of improper waiver requests for each language and the number of ELL students involved.

Table 4: Improper Bilingual Education Waiver Requests by Language

Based on the auditors’ review of waiver requests for School Years 2022–23 through 2024–25, the number of waiver requests and ELL students impacted increased significantly. As shown in Table 5, waiver requests increased from 111 in SY2022–23 to 150 in SY2024–25, while the number of ELL students affected grew from 5,855 to 9,664, representing an increase of 65.1%.^[13]

Table 5: Bilingual Education Program Waivers Requested and ELL Students Impacted SY2022-23 through SY2024-25

During this same period, there was only a small increase in the total number of Bilingual Education Programs. DOE had 557 programs in SY2022–23 and 566 in SY2024–25. The upward trend in waiver requests and DOE’s limited ability to implement new programs as required raises general concerns about the intensity and effectiveness of DOE’s recruitment efforts, and, in particular, about the agency’s efforts to on-board bilingual education teachers of Russian, Bengali, Arabic, Uzbek, and Haitian Creole.

The audit team requested that DOE provide documentation and information regarding its recruitment efforts, particularly regarding its efforts to recruit qualified teachers for Russian, Bengali, Arabic, Uzbek, and Haitian Creole and place them in districts with schools that have repeatedly requested waivers. DOE officials stated that the agency continues its efforts to recruit and staff a diverse and robust pool of candidates.

In 2023 and 2024, the NYC Teaching Fellows Program included candidates in Common Branches-Bilingual Russian and the agency is identifying opportunities to expand into additional languages for future cohorts. DOE officials also stated that they are expanding marketing efforts for traditionally certified bilingual education teachers for languages including Arabic, Bengali, Haitian Creole, Mandarin, Russian, and Spanish. Other than Russian, DOE did not provide the audit team with documentation showing evidence of its efforts to recruit teachers for the cited languages above, or to place them in high need districts.

Without access to Bilingual Education Programs, ELL students may not receive the appropriate language support needed to continue developing their home language and English language skills, as well as academic support, which may impact their long-term educational outcomes.

In its formal response, DOE stated that waivers do not reflect parents’ preferences for their child’s ELL program placement (whether they want their child placed in a bilingual or ENL program). Waivers do not capture the actual demand for bilingual programs in these districts. As a result, according to DOE, using waiver submissions alone tends to overestimate the need for bilingual programs in low-incidence languages.

However, as previously stated, DOE is required by CR Part 154, as amended by the Aspira Consent Decree, to create bilingual programs based on the number of ELL students who have the same home language and their grade level and can request waivers for no more than five consecutive years. CR Part 154 does not provide exceptions based on parents’ preferences.

DOE Did Not Provide Parents/Guardians with Information About ELL Program Options, Including Bilingual Education Programs Available within the District

DOE distributes the ELL Parent Survey and Program Agreement Form to parents/guardians at orientation sessions. This form contains descriptions of bilingual education and ENL Programs, program availability in the student’s school and within their district, and the student’s provisional program placement, and documents parents/guardians’ ELL program selection.

CR Part 154 requires schools to inform parents/guardians that they may transfer their child to another school within the district if a Bilingual Education Program is not available at their own school.

For 110 of 349 (31.5%) sampled students, DOE did not maintain ELL Parent Survey and Agreement Forms or Default Program Letters showing evidence that parents/guardians were informed of ELL program options at their child’s school and at other schools within their district.

Furthermore, based on a review of the available ELL Parent Survey and Agreement Forms for the remaining students, DOE did not inform the parents/guardians of 101 (28.9%) sampled students about ELL program options. For 43 students, DOE did not provide parents/guardians with any information about the ELL programs available at their child’s school or other schools within the district. The other 58 students attended schools that offered only ENL Programs and DOE did not provide information about the availability of Bilingual Education Programs available at other schools within the district. Based on a review of DOE records, 19 of the 58 students attended schools where other schools in the district offered Bilingual Education Programs for the students’ home language and grade level. For the remaining 39 students, no schools in the district offered bilingual programs.

This omission limited parents’ ability to make fully informed decisions about their child’s language instruction options and may have hindered access to Bilingual Education Programs.

As part of ML/ELL School Support Survey visits that are conducted for a sample of schools each year, ML/ELL staff randomly select five to 10 students’ files to review for evidence of critical documents including Parent Survey and Program Agreement Forms. Given the extent to which schools either did not maintain records or did not provide parents/guardians with ELL program information as required, it appears that DOE’s monitoring is ineffective.

At the exit conference, DOE officials stated that the Parent Survey and Agreement Form, when reviewed in its entirety, demonstrates that the program was explained to parents. However, as detailed above, DOE did not maintain forms showing evidence that required information was provided to parents/guardians for 31.5% of sampled students, and available forms did not include all required information for 28.9% sampled students.

In addition, DOE stated that Parent Survey and Agreement Forms may not have listed bilingual program available at other schools within the district because no such programs were offered. DOE stated that the Parent Survey and Agreement Form has since been updated to include a checkbox to be used when there is no program that meets these requirements.

DOE officials also stated that while Parent Survey and Agreement Forms did not always detail ELL program options at their students’ school or at other schools within their district, school staff may have provided this information to parents/guardians outside of the form, either as a separate hard-copy list or via link. DOE acknowledged that this is an area where process improvements may be needed. DOE officials stated they would revisit how schools are sharing program information with parents.

In its formal written response, DOE stated that 18 of the students cited above should not have been included in the sample because ATS records indicated that they did not have language acquisition needs. However, based on ATS records, DOE administered the NYSITELL to all 18 students and all 18 scored below commanding level, indicating that they did in fact have language acquisition needs. This finding has therefore not been modified.

DOE Does Not Centrally Record or Analyze Parent/Guardian Survey Results

CR Part 154 states that the parents/guardians of ELL students must be provided with high-quality orientation sessions in the language or mode of communication that they best understand. Further, CR Part 154 requires school districts to provide assurances prior to the start of each school year that parents/guardians will receive orientation and notification about ELL program types.

The ELL Parent Survey and Agreement Form is distributed at orientation sessions and asks parents/guardians whether they received information about the ELL programs available in their child’s school and other schools within the district, and their right to transfer their child to another school within the district if a Bilingual Education Program is not offered by their school. In addition, the form asks parents/guardians whether information was communicated in their preferred language, if interpretation services were offered, and they had the opportunity to ask questions.

The form states that parents/guardians’ participation in their child’s education is a key to their success and that the survey is crucial in confirming that parents/guardians received all the information they need to select the appropriate ELL program for their child. Despite this, DOE does not centrally record or systematically analyze survey responses to identify schools that are not informing parents/guardians of their rights, providing them with necessary information, or communicating with them appropriately. Without a centralized analysis, DOE cannot be assured that schools are providing high-quality orientations and communicating appropriately, and may overlook systemic communication failures, which can lead to parents making uninformed decisions about ELL program options resulting in misaligned placements and unequal access to bilingual education.

At the exit conference, DOE officials stated the ELL Parent Survey is not required by CR Part 154. In addition, DOE officials stated that there are already a lot of data entry requirements and that the agency is examining the utility of the survey.

As stated above, CR Part 154 requires school districts to provide parents/guardians with “high-quality” orientation sessions in the appropriate language or mode of communication and the State with assurances that such sessions were provided as prescribed. As acknowledged by DOE on its own form, parents/guardians’ participation in their child’s education is key to their success and the survey is crucial in confirming they received all necessary information to make an appropriate program selection. Therefore, DOE should centrally record and analyze survey responses to ensure compliance with CR Part 154 and evaluate the consistency and effectiveness of parent engagement practices across schools to support informed program selection.

Bilingual Program Waitlist Requests

Of the 349 sampled ELL students, 20 students requested to be put on a Bilingual Education Program waitlist. DOE does not have a code in Automate the Schools (ATS) to flag waitlist requests and therefore cannot systematically track such requests and ensure that parents/guardians’ requests are honored. DOE stated that individual schools are responsible for maintaining their own bilingual program waitlists, which are not submitted for centralized review.

For 20 students, parents/guardians requested that they be placed on a list so that when there were enough students to form a Bilingual Education Program, their child would be placed in that program. These students attended 16 different schools. Of those, only four schools provided records indicating that they maintained cumulative waitlists which included critical information such as students’ home languages and grade levels, and that sampled students were placed on waitlists. The remaining schools did not provide waitlists at all (six schools) or did not provide waitlists that included critical information about sampled students (six schools).

DOE officials stated that the agency centrally tracks and reports parents/guardians’ preferences in other ways. This includes a dashboard and ELL Data Update Reports which identify ELLs with a bilingual program preference who are not served in such programs, among other things.

Since schools are responsible for maintaining waitlists, placing students in ELL programs, and programming their courses, DOE should ensure that schools maintain accurate and complete waitlists.

At the exit conference, DOE officials stated that the bilingual waitlists provided to the audit team may have only covered students who enrolled or reentered schools during SY2023–24.  On July 30, 2025, and August 4, 2025, the audit team informed DOE officials that they could provide bilingual waitlists for the scope period. To date, DOE has not provided additional documentation.

Regarding waitlists, DOE officials also stated that the Fair Student Funding Report includes relevant student information such as name, home language, grade level, English proficiency, and parent program selection. On August 4, 2025, the audit team requested this report, but DOE has yet to provide it.

Following the exit conference, DOE provided the audit team with the Fair Student Funding Report, However, the report does not identify students whose parents or guardians requested  they be placed on bilingual program waitlists. The audit team could not verify from this report alone whether or when individual students were placed on a waitlist. Without a dedicated field or mechanism in ATS to flag and track bilingual waitlist requests, DOE lacks a systematic method to ensure that requests for bilingual programs are recorded, monitored, and fulfilled across schools.

DOE Did Not Consistently Comply with ELL Identification Process Requirements

CR Part 154, the Aspira Consent Decree, and the DOE Policy and Reference Guide require schools to complete an ELL identification process for newly enrolled students and students reentering public schools. The identification process consists of administering a Home Language Identification Survey (HLIS), New York State Identification Test for English Language Learners (NYSITELL), and the Spanish Language Assessment Battery (Spanish LAB), as necessary. It also provides parents/guardians with an Entitlement Letter, orientation, and confirmation of ELL program placement.  This process must be completed within 10 school days of enrollment or reentry for General Education students, and within 20 school days for students entering with an Individualized Education Program (IEP).

However, as detailed below, DOE did not consistently comply with ELL identification requirements. As a result, students were not identified or promptly identified as ELLs and enrolled in ELL programs.

DOE Did Not Administer the HLIS to Some Students

The ELL identification process for newly enrolled and reentry students begins with the in-person administration of the Home Language Identification Survey (HLIS) by a licensed and trained education professional. The HLIS includes an interview with the student and parent/guardian in English, as well as their home language. Upon completion, staff must place the HLIS form in the student’s file, record that they completed the HLIS and the student’s home language in ATS.

If the student’s home language is English, the ELL identification process ends. If the student’s home language is a language other than English, the process continues to the next step to determine whether the student is eligible for the NYSITELL.

Review of Automate the Schools (ATS) Records

The DOE Policy and Reference Guide states that effective June 2020, the HLIS field in ATS will be used to identify whether a school has administered the HLIS. However, based on the audit team’s review of ATS records, DOE did not affirmatively indicate in ATS that it administered the HLIS for 12,069 of the 65,055 (18.6%) students who enrolled in or reentered public schools in the SY2022–23. Nevertheless, DOE did record a home language for the vast majority of these students—11,472 of them. Out of the 11,472 students, DOE recorded a home language of English for 5,787 students and a home language other than English for 5,685 students.

For the remaining 597 students’, DOE did not indicate whether it administered the HLIS and did not record the students’ home languages upon their enrollment or reentry. Some students subsequently transferred to another DOE school and were administered the HLIS.

During the exit conference, DOE officials stated that their data system has limitations in identifying newly enrolled and reentry students. DOE cannot readily distinguish between newly enrolled and transfer students, as there is no singular data point or field that identifies this distinction. ATS records students’ enrollment dates which are specific to a school. DOE stated that the “enrollment date” field in ATS can represent either the student’s initial enrollment or the date of transfer to another DOE school. Therefore, DOE officials stated that the data set provided to the audit team may include students who were continuously enrolled in a DOE public school but transferred to another DOE school and would not go through the ELL identification process.

Within the dataset provided by DOE, some students were listed multiple times. The audit team reviewed records associated with students’ earliest enrollment date to determine whether they were administered the HLIS as part of the ELL identification process.

In addition, DOE stated that the HLIS field was added to ATS during the COVID-19 pandemic in response to State guidance. The purpose of this indicator was to enable DOE to track whether schools administered the HLIS, and whether parents/guardians signed the form in person. DOE officials stated that they believe this field is not an accurate indicator of whether the HLIS was administered. Instead, they rely on whether a home language is recorded in ATS. DOE officials stated that the agency intends to phase out this indicator.

DOE should continue to use the HLIS field since it allows schools to confirm and DOE to readily track whether the HLIS was formally administered and used to determine students’ home language.

Review of School Records

The audit team took a sample of 383 newly enrolled and reentry students and requested that DOE provide their completed HLIS forms. The sample included 291 students that DOE’s tracking indicated had been administered the HLIS and had their home languages recorded; 83 students the tracking indicated the HLIS had not been administered but their home languages had been recorded; and nine students for whom DOE’s tracking showed the HLIS had not been administered and their home languages not recorded.

DOE did not maintain signed copies of the HLIS forms for 62 (16.2%) of the 383 sampled ELL students. DOE did not provide any forms for 52 students and did not provide forms that were signed by parents/guardians for 10 students. In the absence of these forms, DOE cannot be reasonably assured that qualified personnel interviewed students and their parents/guardians to determine their home languages or obtained students’ educational history and evaluated their abilities.

In addition, the auditors found that DOE did not accurately record 71 (18.5%) students’ home language; this information is used to identify ELLs. For 33 students, DOE recorded a student’s home language as English, but the HLIS recorded a home language other than English. During ML/ELL School Support Survey visits, field staff members review a sample of students’ cumulative records to determine whether HLIS forms are retained; however, they do not check the forms against ATS to ensure information is accurately captured. While not every school is visited annually, DOE stated that about one-third of schools were selected and reviewed in the past year. Top of FormBottom of Form

DOE Did Not Administer (or Administer in a Timely Manner) the NYSITELL to Some Eligible Students

The DOE Policy and Reference Guide states that if a student is determined to be eligible for the New York State Identification Test for English Language Learners (NYSITELL), schools must administer the test within 10 school days for newly enrolled and reentering students.^[14] For incoming students with IEPs, the NYSITELL must be given within 20 school days.^[15] In addition, the guide states that NYSITELL answer documents must be scanned into ATS and compliance with mandated timeframes is measured based on NYSITELL scan dates. As stated in CR Part 154, schools must maintain in the students’ cumulative record information regarding the identification process, including the students’ NYSITELL results.

For SY2022–23, 43,266 of the 65,055 newly enrolled or reentering students were eligible to take the NYSITELL based on ATS records.^[16] The audit found that DOE did not administer the NYSITELL to 1,447 of the 43,266 (3.3%) eligible students  and did not administer the NYSITELL to 4,049 (9.4 %) students in a timely manner, as detailed in Table 6 below.^[17]

Table 6: Number and Percentage of Eligible Students Who Were Administered the NYSITELL within Mandated Timeframes

DOE stated that the ELL Data Update Report provides schools with information related to newly enrolled students who are required to take the NYSITELL test. The reports include timeline reminders of newly enrolled students who need to be administered the NYSITELL, and schools are expected to review the reports and administer the assessments as needed. In addition, schools can generate a NYSITELL Eligibility Report in ATS. DOE stated that borough and district ML/ELL support staff have access to dashboards that track NYSITELL administration metrics. Staff are expected to review the data weekly and follow up with schools on any compliance issues.

In addition, DOE stated that factors like school closures, changing State guidance, and students missing school due to illness made it challenging to monitor the 10/20-day window. The expectation remains that schools should meet the 10/20-day requirement because ATS can’t enforce adherence across schools.

Despite DOE providing various reports to schools, the NYSITELL test is still not being administered to students or administered in a timely manner. As a result, students may not have received ELL services they were entitled to or were delayed in receiving such services.

For a sample of 300 students who were eligible to take the NSYITELL, the audit team requested NYSITELL records of ATS scan dates to ensure that students were provided the NYSITELL exam, scores were accurately entered into ATS, and that DOE kept the assessment results in the student’s cumulative folder.^[18] Based on the auditors’ review of the sampled students,  DOE did not record a NYSITELL proficiency score for  16 (5.3%) students in ATS. Furthermore, DOE did not provide NYSITELL scan sheets; therefore, the audit team could not determine whether DOE accurately recorded proficiency scores.

At the exit conference, DOE officials stated that it does have hard copies of the NYSITELL scan sheets. However, due to the effort and resources required to retrieve these records, DOE officials provided an ATS report that purported to contain the same information as the scan sheets. DOE officials stated that their intent was not to withhold the scan sheets, but rather to provide the necessary information. DOE officials stated that they would make the effort to retrieve scan sheets but to date, DOE has not provided them.

Following the exit conference, DOE provided the audit team with the NYSITELL scan sheets for the sampled students. Since DOE did not produce scan sheets during the  audit and took nine months to produce them, the audit team could not rely on this documentation.

Along with the formal written response, DOE provided discharge dates and reentry status for students. DOE did not produce this data during the audit. In addition, DOE did not identify the source of this data or provide underlying documentation in support of this data. Therefore, the audit team could not assess the reliability of this data and did not modify this audit finding.

DOE Did Not Administer the Spanish LAB in a Timely Manner, or At All, to Certain Eligible Students

In accordance with the Aspira Consent Decree, the DOE Policy and Reference Guide states that the Spanish Language Assessment Battery (Spanish LAB) is to be administered to students whose HLIS response indicated a home language of Spanish; this is used to support instructional planning for ELL services. Schools must administer the test within 10 school days for newly enrolled students. For incoming students with IEPs, the Spanish LAB must be given within 20 school days. In addition, the guide states that Spanish LAB answer documents must be scanned into ATS and compliance with mandated timeframes is measured based on Spanish LAB scan dates.

For SY2022–23, 27,293 of the 65,055 newly enrolled or reentering students were eligible to take the Spanish LAB.^[19] The audit found that DOE did not administer the Spanish LAB to 3,331 of the 27,293 (12.2%) eligible students, and did not administer the Spanish LAB in a timely manner to 7,659 (28.1 %) students, as detailed in Table 7 below.

Table 7:  Number and Percentage of Eligible Students who Were Administered the Spanish LAB within Mandated Timeframes

DOE stated that they do not have specific reports on dates, due to the difficulty of tracking and reporting for every school. Factors such as school closures, changing State guidance, and students missing school due to illness, made it challenging to monitor the 10/20-day window. The expectation remains that individual schools should meet the 10/20-day requirement, without support from ATS to enforce adherence centrally.

DOE stated they ensure compliance with the Spanish LAB by providing schools the ELL Data Update Report which schools receive monthly. The report includes timeline reminders of newly enrolled students who need to be administered the Spanish LAB, and schools are expected to review the reports and administer the assessments as needed. DOE stated that Borough and district ML/ELL support staff have access to dashboards that track the Spanish LAB administration metrics. Staff are expected to review the data weekly and follow up with schools on any compliance issues.

However, despite DOE providing various reports to schools, the Spanish LAB test is still not being administered to students on time. School staff did not update DOE’s system of record or maintain records to confirm that the Spanish LAB was administered. As a result, DOE did not ensure that eligible students received the Spanish LAB, which may have resulted in students not receiving appropriate ELL instruction to help them achieve specific educational goals.

In its formal written response, DOE stated that 91 of the students cited above should not have been included in the sample because ATS records indicated that they did not have language acquisition needs. However, based on ATS records, all 91 students scored below commanding level on the NYSITELL and had a home language of Spanish.  As a result,  DOE should have administered the Spanish LAB to these students.

Recommendations

To address the abovementioned findings, the auditors propose that DOE:

1. Finalize rules for implementing a tracking and monitoring system for Bilingual Education and English as a New Language Programs to ensure students are being adequately served.

DOE Response:  DOE agreed with this recommendation.

2. Implement and further develop a system to monitor ENL units of study to ensure that students are receiving all required ENL minutes by a certified ENL teacher, in compliance with CR-Part 154.

DOE Response:  DOE agreed with this recommendation.

3. Continue their efforts to recruit more qualified teachers for English Language Learners program classes and encourage current DOE personnel to obtain the required certifications to become ELL certified educators.

DOE Response:  DOE agreed with this recommendation.

4. Develop a centralized system for tracking teachers Continuing Teacher and Leader Education (CTLE) hours, to ensure that they are receiving the minimum 50% of required professional development hours, as outlined in CR Part 154. Additionally, DOE should designate a team to monitor CTLE compliance and provide periodic status reports.

DOE Response: DOE disagreed with this recommendation stating, ”each school district shall provide professional development to all teachers and administrators that specifically addresses the needs of English Language Learners… CTLE certificate holders certify they met the requirements, and are required to maintain a record of completed CTLE and provide records to NYSED for review upon request.”

Auditor Response:  As stated in the report, school districts are required to submit assurances to the New York State Education Commissioner that teachers received the required number of professional development hours. DOE cannot provide such assurances in good faith without verifying  that individual teachers have met the requirements. DOE should reconsider its position, not only to support this requirement but to ensure professional standards are maintained

5. Continue to conduct regular audits and inspections during ML/ELL School Support Survey visits to ensure that all required school level ELL-critical documentation is completed, retained in students’ cumulative records, and accurately entered in ATS.

DOE Response:  DOE agreed with this recommendation.

6. Improve oversight of waiver requests, evaluate recruitment efforts, and expand bilingual programs in high-demand districts to reduce reliance on waivers and ensure ELL students receive appropriate language services.

DOE Response:  DOE agreed with this recommendation.

7. Implement standardized procedures to ensure that all schools provide complete and accurate ELL program information to parents/guardians in Parent Survey and Program Agreement Forms.

DOE Response:  DOE agreed with this recommendation.

8. Establish a centralized process to collect, analyze, and act on data from the Parent Survey and Program Agreement Forms across all schools.

DOE Response:  DOE agreed with this recommendation.

9. Develop and implement a centralized tracking system for waitlist and transfer requests in ATS and enhance oversight to ensure all bilingual program preferences are honored timely.

DOE Response:  DOE agreed with this recommendation.

10. Implement a school level monitoring system to ensure that the ELL identification process is being completed in accordance with their Policy and Reference Guide and CR Part 154.

DOE Response:  DOE agreed with this recommendation.

Recommendations Follow-up

Follow-up will be conducted periodically to determine the implementation status of each recommendation contained in this report. Agency reported status updates are included in the Audit Recommendations Tracker available here: https://comptroller.nyc.gov/services/for-the-public/audit/audit-recommendations-tracker/

Scope and Methodology

We conducted this performance audit in accordance with Generally Accepted Government Auditing Standards (GAGAS). GAGAS requires that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions within the context of our audit objective(s). This audit was conducted in accordance with the audit responsibilities of the City Comptroller as set forth in Chapter 5, §93, of the New York City Charter.

The scope of this audit was July 1, 2022 to March 11, 2025.

To gain an understanding of the policies, rules, and regulations applicable to DOE’s compliance with the requirements outlined in CR Part 154, the auditors also obtained and reviewed the following documentation:

• Department of Education Policy and Reference Guide for Multilingual Learners/English Language Learners 2022-2023 School Year;
• Commissioner’s Regulation Part 154 1-2
• Aspira Consent Decree.

To gain an understanding of DOE’s identification, administering and enrollment process for ELLs, auditors conducted general walkthroughs with the Department of Multilingual Learners and separate interviews with DOE staff, including School Support and Implementation, concerning the process of identifying and placing students in ELL programs. The auditors also conducted general walkthrough meetings with the Teacher Recruitment and Quality and Human Resources departments concerning the process of hiring qualified teachers.

The auditors obtained a student biographical report of all newly enrolled students to DOE on or after July 1, 2022. This report included the students recorded home languages; New York State Identification Test for English Language Learners (NYSITELL) proficiency scores and scan dates; Spanish Language Assessment Battery (Spanish LAB) scores and scan dates; parent orientation information; and parent program choice.

To assess the integrity of the data provided, the auditors compared the student biographical report received from DOE to the hard copy school level ELL critical documents to determine if the information reported by DOE was accurate.

To determine if DOE administered the ELL identification process as outlined in the Policy and Reference Guide, the auditors obtained and analyzed the student biographical report information to identify whether DOE administered the Home Language Identification Survey (HLIS).

The auditors reviewed the student biographical report to determine whether DOE administered the NYSITELL to all eligible ELL students. In addition, the auditors determined that students who had a home language of Spanish were eligible to take the Spanish LAB. To determine if DOE was in compliance with the 10/20-day timeframe for completion of the ELL Identification Process, the auditors compared the student’s enrollment date to the NYSITELL scan date. The auditors calculated the days between the enrollment date and the NYSITELL scan date to determine the number of students who were not in compliance with the 10/20-days timeframe. In addition, the auditors compared the enrollment date to the Spanish LAB scan date to determine the number of students who were not in compliance with the 10/20-day timeframe.

To determine if students were placed in the appropriate ELL program and were receiving the required units of study as outlined by CR Part 154, the auditors obtained a sample of 301 students and their assigned classes. The auditors compared the student classes to the parent program choice to determine if the student was placed within the chosen ELL program. The auditors also compared the students’ proficiency score and their programmed units of study to CR Part 154’s requirements.

To determine if students were placed in the correct ELL programs, the auditors reviewed the Parent Survey and Program Agreement forms and the Default Program Placement Letters for 349 sample ELL students. These forms were then compared to the corresponding Placement Letters to assess whether the program assigned to the student was consistent with the parent’s stated choice or default program. The auditors compared the information from the Parent Survey and Program Agreement forms, Default Program Placement Letters, and Placement Letters to the data recorded in the ATS system to determine whether the program code and student placement recorded by the DOE were accurate.

To determine if teachers had valid teaching qualifications and were qualified to teach the assigned ELL classes, the auditors obtained a list of all teachers who taught in a DOE school for School Year 2022–23 from the New York State Education Department. The report detailed the teachers’ certifications and license, as well as their certification and expiration dates. The auditors compared the teacher’s certifications to their assigned ELL classes to determine how many teachers were qualified to teach ELL program classes.

To determine if DOE is in compliance with the record retention requirements outlined in CR Part 154, the auditors obtained copies of a sample of ELL critical school level documentation, including student Home Language Identification Surveys, Parent Agreement and Survey forms, Placement Letters, Defaulted Placement Letters and Family Transfer Requests. Specifically, the auditors tested to determine if DOE is keeping records of all school level ELL critical documentation resulting from the identification process.

To determine what school districts requested a Bilingual Education Waiver from the New York State Department of Education and how many ELL students were impacted, we did a three-year analysis of Bilingual Education Waiver requests compared to the Bilingual Program List for School Years 2022–23, 2023–24, and 2024–25.

The results of the above tests provide a reasonable basis for the audit team to evaluate the Department of Education’s compliance with Commissioner’s Regulation Part 154 concerning English Language Learners.

Appendix I

Commissioners Regulation Part 154-2 English as a New Language Units of Study for K-8^th grade:

Appendix II

Commissioners Regulation Part 154-2 English as a New Language Units of Study for 9^th-12^th grade:

Appendix III

Commissioners Regulation Part 154-2 Transitional Bilingual Education K-8^th grade:

Appendix IV

Commissioners Regulation Part 154-2 Transitional Bilingual Education Program 9^th-12^th grade:

Appendix V

Continuing Teacher and Leader Education (CTLE) Language Acquisition Requirements

Appendix VI

Number of Waivers Requested by School District Over a Three-Year Period

Appendix VII

English Language Learner Identification Process

Addendum

See attachment.

Endnotes

[1] “Foundation aid” is the primary formula for distributing the State’s education operating funds. It aims to allocate resources fairly across all school districts, with particular emphasis on high-need areas, considering factors such as student needs, community wealth, and regional cost variations.

[2] The ELL identification process must be administered to students who have not been enrolled in a New York State public school for the previous two continuous school years.

[3] CR Part 154 requires school districts to provide a sufficient number of Bilingual Education Programs in each school district for which the enrollment of ELLs of the same grade level and home language (other than English) is 20 students or more. For schools that are not required to provide a Bilingual Education Program, parents/guardians must be notified  of the option of transferring their child to another school within the district, subject to program availability. For schools that are exempted from the requirement to provide a Bilingual Education Program, parents/guardians must be notified how the school will offer to support home language.

[4] General education students are those who participate in the standard education curriculum. Special education students receive specialized services or accommodations pursuant to an Individualized Education Program (IEP), which is a written document for a student with disability that will outline the child’s needs, specific support and services required, and goals for their educational progress.

[5] In its ELL Demographics: At a Glance, DOE reported the number of ELLs who were enrolled in public schools at some point in the year.

[6] In its Demographic Snapshot, DOE reported the enrollment count based on the November 12 Audited Register for School Year 2021-22, and enrollment counts based on the October 31^st Audited Register for School Years 2022-23 and 2023-24.

[7] The audit team sampled 301 students who scored below “Commanding” on the NYSITELL and for who DOE recorded parents’/guardians’ or default program choice in ATS.

[8] Please see Appendices I through IV for the New York State Education Department Units of Study Tables for Bilingual and ENL Programs.

[9] Please see Appendix V for CTLE requirements by certificate type.

[10] The draft report cited DOE for not honoring requests for seven students. This has been modified to three students because DOE provided documentation to show that one student was placed in a bilingual program, two students were not placed in bilingual programs because a program was not available, DOE provided documentation to show that a parent rejected a bilingual transfer for one student.

[11] Low-incidence languages are languages spoken by fewer than 5% of the statewide ELL population, excluding Spanish and Chinese.

[12] The 146 Bilingual Education Waivers exceeding the five-year exemption limit were requested by 106 unique schools.

[13] See Appendix VI for the three-year comparison of waivers by school district.

[14] In accordance with CR Part 154, the DOE Policy and Reference Guide states that a licensed and trained pedagogue must determine whether a student has English oral and literacy skills sufficient for the grade into which the student is enrolling. To make this determination, qualified pedagogues must administer the HLIS and review student’s prior schoolwork in reading, writing, and math, in both English and their home language. In the absence of sufficient schoolwork, schools may use assessments or screeners. If DOE determines that students have sufficient skills, they are not eligible to take the NYSITELL and the ELL identification process ends. Students’ ineligibility to take the NYSITELL must be recorded in ATS. DOE staff must document student’s ineligibility to take the NYSITELL in the ELL Options (ELLO) screen in ATS.

[15] The DOE Policy and Reference Guide states that general education students who enrolled during the Summer of 2022 and on first day of school (September 8, 2022) must be identified and placed in an ELL program by September 21, 2022. Incoming students with IEPs must be identified and placed in an ELL program by October 11, 2022. General education students who enrolled after the first day of school must be identified and placed in an ELL program within 10 school days and special education students must be identified and placed within 20 school days.

[16] The population of 43,266 students was determined by identifying students who had a home language other than English recorded in ATS and did not have an ELLO exception code for students. The ELLO screen in ATS should be used by schools only for students whose home language is not English and who have been identified as not requiring English language acquisition support.

[17] In total, DOE did not record valid NYSITELL proficiency scores for 1,447 students—DOE did not record a proficiency score for 1,411 students and recorded an illogical score for 36 students.

[18] The 300 sampled students were eligible to take the NYSITELL test because they had a home language other than English and did not have an ELLO exception code recorded in ATS.

[19] The population of 27,293 students was determined by identifying students who had a home language of Spanish recorded in ATS and did not have an ELLO exception code.