Facilities Planning

Part 155 Regulations

Disclaimer: These Rules of the Regents and Regulations of the Commissioner of Education ("regulations") are unofficial, and are presented for general informational purposes as a public service. Although reasonable efforts have been made to ensure that these regulations are current, complete and accurate, the State Education Department does not warrant or represent that they are current, complete and accurate. These regulations are subject to change on a regular basis. Readers are advised to consult Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York (8 NYCRR), published by the Department of State, and the State Register external link for the official exposition of the text of these regulations, as well as for amendments and any subsequent changes or revisions thereto.                                                        

 

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK

TITLE 8. EDUCATION DEPARTMENT

CHAPTER II. REGULATIONS OF THE COMMISSIONER

SUBCHAPTER J. BUILDINGS AND TRANSPORTATION

PART 155. EDUCATIONAL FACILITIES

Current through February 15, 2010

(Statutory authority: Education Law, §§ 101, 207, 215, 305, 305[14]

as amd. by L. 1997, ch. 464, 403-a, 403-b, 408, 409, 409-d, 409-e, 409-f[1]-

[2], 409-h, 1950[4][t], 2503, 2554, 2801-a, 3602, 3602-a[4], 3641, 3713[1],

[2], 4402, 4403; Energy Law, § 9-103[8]; Environmental Conservation Law,

§§ 8-0113[3], 8-0117[5]; 26 USC, §§ 142[a], [k], 1397E; Executive

Law, art. 2-B; L. 1987, ch. 53, § 17; L. 1992, chs. 466, 700; L. 1993, ch. 700;

L. 1994, ch. 64, §§ 1, 2; L. 1997, ch. 436; L. 1998, ch. 58, §§ 13, 48, ch.

56, part B, § 1; L. 2000, ch. 60, part A, § 5 and ch. 181; L. 2000, ch. 185, §

6; L. 2001, ch. 217; L. 2002, ch. 231)

 

Section 155.1 Educational facilities     Disclaimer

Each school district shall provide suitable and adequate facilities to accommodate the programs of such district.

(a) Each school district shall develop and keep on file a comprehensive long-range plan pertaining to educational facilities. Such plan shall be reevaluated and made current at least annually, and shall include appraisal of the following: the educational philosophy of the district, with resulting administrative organization and program requirements; present and projected pupil enrollments; space use and State-rated pupil capacity of existing facilities; the allocation of instructional space to meet the current and future special education program and service needs, and to serve students with disabilities in settings with nondisabled peers; priority of need of maintenance, repair or modernization of existing facilities, including consideration of the obsolescence and retirement of certain facilities; and the provision of additional facilities.

(1) The numbers, types, space requirements and pupil capacities of facilities shall be in relation to the present and projected needs of the school district programs, including mandated educational requirements and the current and future special education program and service space needed to serve all students with disabilities.

(2) Pupil enrollment projections shall be based on a school district census projection of each grade level. Elementary grade enrollments, kindergarten through sixth grade, shall be projected a maximum of five years. Secondary grade enrollments, seventh through twelfth grade, shall be projected a maximum of 10 years.

(3) Educational specifications for the erection, enlargement, remodeling or initial use of educational facilities shall be submitted to the commissioner. Such specifications shall be based on the comprehensive long-range plan of the district and shall include the educational philosophy of the project, description of educational program, including activities to be conducted and related space and facilities requirements; and description of innovative or experimental concepts or features which may be included.

(4) Each school district shall prepare a five-year capital facilities plan no later than July 1, 2001, and shall update such plan annually. Such plan shall be prepared in a manner and in a format prescribed by the commissioner and copies of such plan shall be submitted to the commissioner upon request. Such plan shall include, but shall not be limited to:

(i) a breakdown for each of the five years of the plan of the estimated expenses for the following:

(a) current or proposed new construction ranked in priority order;

(b) current or proposed additions to school facilities ranked in priority order;

(c) current or proposed alterations or reconstruction of school facilities ranked in priority order;

(d) major repairs ranked in priority order;

(e) major system replacement and repairs, and maintenance ranked in priority order; and

(f) energy consumption;

(ii) a districtwide building inventory which shall include, but shall not be limited to:

(a) the number and type of facilities owned, operated or leased by the district;

(b) the age, enrollment, rated capacity, use, size and the safety rating of such buildings as determined pursuant to the provisions of section 155.4(c) of this Part;

(c) the energy sources for such buildings;

(d) probable useful life of each building and its major subsystems;

(e) need for major system replacement and repairs, and maintenance;

(f) summary of the triennial asbestos reports required pursuant to the Asbestos Hazard Emergency Response Act (AHERA) regulations, 40 CFR part 763 (Code of Federal Regulations, 1998 Edition, Superintendent of Public Documents, U.S. Government Printing Office, Washington, DC 20402; 1998; available at Office of Facilities Planning, Education Building Annex, Room 1060, State Education Department, Albany, NY 12234); and

(g) any other information which may be deemed necessary by the commissioner to evaluate safety and health conditions in school facilities.

(b) Facilities shall be designed and constructed to provide for the health and safety of occupants, with consideration of educational and planning efficiency, conservation of natural resources, practicality, and initial and long-range economy, and shall support an environment within the facility which is conducive to learning.

(1) Design of a facility shall provide space layouts and number, size and arrangement of exit facilities that will insure prompt escape of occupants from a hazard to life safety.

(2) Visual environment of a facility.

(i) Adequate levels of illumination, consistent with efficient energy consumption, shall be provided in each area of a facility for the tasks being performed.

(ii) Natural and artificial lighting shall produce a controlled environment of balanced brightness, free from objectionable glare.

(iii) Teaching areas shall have fenestration which permits a view of the exterior, unless otherwise approved by the commissioner.

(iv) Teaching spaces shall be properly proportioned as to size and shape of room, including ceiling height.

(v) Color, finishes, lighting, furnishings and related items shall reasonably be combined to provide an aesthetic learning environment.

(vi) A report that new installations and replacements of mercury vapor or metal halide lamps are of a fail-safe type which self-extinguish if the shielding of the lamp is broken, cracked or removed shall be included in the annual fire inspection report filed pursuant to Education Law, section 807-a. If such fail-safe type lamps are unavailable, the report shall state that an ultraviolet radiation-absorbing shield has been provided for each new or replacement mercury vapor or metal halide lamp, in accordance with the provisions of section 409-b of the Education Law.

(3) Thermal environment of a facility.

(i) Controlled heating and ventilation shall be provided and maintained in all areas to produce conditions suitable for the varying activities that take place in the various areas by systems providing efficient consumption of energy.

(ii) Each teaching space shall be provided with a controlled supply of fresh air and shall have sufficient air changes to produce healthful conditions and avoid odors or build-up or concentrations of toxic substances or dust particles.

(iii) When teaching spaces cannot be provided with an adequate thermal environment by ventilation as determined by the commissioner, provision for cooling may be required by the commissioner.

(4) Sanitation.

(i) Water shall be safe and potable, from an approved source, and shall be dispensed within a facility from sanitary drinking fountains.

(ii) Toilet rooms shall have an adequate number of proper fixtures.

(iii) Sanitary sewers shall be connected to a municipal sewage system or an approved onsite disposal system.

(c) Sites for the erection or enlargement of facilities shall be approved by the commissioner, provided they have been selected with reasonable consideration of the following factors:

(1) size and location of a site shall be consistent with the long-term building plans of the district;

(2) sites shall be educationally adaptable with consideration for situation of building and development of the grounds for outdoor educational program and related activities, without excessive initial or development costs, and shall provide the following minimum usable acres, unless otherwise approved by the commissioner:

(i) elementary schools (kindergarten through sixth grade): three acres base plus one acre for each 100 pupils or fraction thereof;

(ii) secondary schools (7th through 12th grade): 10 acres base plus one acre for each 100 pupils or fraction thereof;

(3) sites shall be developed to conserve natural resources and avoid environmental problems within the limits of the educational program. Care shall be taken to insure that the site and facilities thereon are consistent with and contribute to the school and community environment and provide for the health and safety of occupants.

(d) Inspection of facilities.

(1) Structural safety inspections. Structural safety inspections occurring on or before October 7, 1999 shall be conducted pursuant to the provisions of this subdivision. To insure that all facilities occupied by students are properly maintained and preserved and provide a suitable educational setting, the board of education of each school district shall cause such facilities owned by the district to be inspected in accordance with section 409-d of the Education Law and this paragraph. A visual inspection of structural elements of all school buildings occupied by students shall be conducted annually.

(i)

(a) In districts other than city school districts in cities having 125,000 inhabitants or more, annual structural inspections:

(1) shall include, but not be limited to, inspection of exterior wall components, doors, windows, retaining walls, roofs and interior building components for evidence of movement, deterioration and structural failure;

(2) shall be conducted by a team which is composed of at least the director of facilities, the building custodian and a code enforcement official; and

(3) shall be made prior to the 30th day of June of each school year.

(b) In city school districts in cities having 125,000 inhabitants or more, the visual structural inspection shall be conducted in accordance with standards established by the board of education of such city school district and submitted to the commissioner for approval.

(c) Annual visual safety inspections shall be made prior to the 30th day of June of each school year. Reports of such inspections shall be retained in district files for six years after the building no longer exists, but not less than 21 years, whichever is longer. Such reports shall be available to the public on request.

(ii) When a visual structural inspection discloses evidence of a possible defective structural condition, a licensed architect or licensed professional engineer shall be retained immediately to inspect the condition and ascertain if structural modifications are necessary. The architect or engineer shall present a written report of all findings to the board of education, which shall act to correct any defective structural conditions.

(iii) Building aid computed pursuant to paragraph (d) of subdivision 6 of section 3602 of the Education Law is available for inspections by a licensed architect or engineer which result from the annual visual structural inspection of a building if no claim for building aid for such an inspection in such building has been filed in the previous five years. The apportionment of such building aid for each school building so inspected by a school district in the base year shall not exceed the lesser of: the product of the building aid ratio and the actual cost, or the structural inspection aid ceiling computed by the commissioner. For aid payable in the 1993-94 school year and thereafter, the structural inspection aid ceiling shall be the sum of $10,000 plus an additional amount computed as follows:

(a) The monthly indices for the costs of labor and material determined by the New York State Department of Labor, adjusted for the base month of July 1993, shall be used to compute such additional amount. The commissioner shall compute an index number which shall equal the positive remainder resulting when one is subtracted from the quotient of the Department of Labor index for July of the current year divided by the Department of Labor index for July 1993.

(b) The additional amount shall be the positive result of the product of $10,000 and the index number computed pursuant to clause (a) of this subparagraph for the month of July in the current year.

(iv) Reports of structural inspections by the licensed architect or engineer shall be submitted to the commissioner together with any claim for building aid. For districts other than city school districts in cities having 125,000 inhabitants or more, copies of the reports shall also be submitted to the appropriate district superintendent of schools. A claim for building aid shall be made, in a form prescribed by the commissioner, within six months of the date of the architect's or engineer's report, for aid payable in the following school year.


Section 155.2 Construction and remodeling of school district facilities    Disclaimer

(a) All plans, specifications and work regarding the erection, enlargement, repair, replacement, maintenance or remodeling of occupied facilities of school districts and of boards of cooperative educational services shall comply with the Uniform Safety Standards for School Construction and Maintenance Projects as set forth in section 155.5 of this Part. Such uniform safety standards shall include but not be limited to: pre-construction testing and planning, exiting and ventilation, pre-construction notification, asbestos and lead protocols, control of dust, gases and fumes, protection from falling debris, and general safety and security.

(b) Plans and specifications for the erection, enlargement, repair or remodeling of facilities of school districts, other than in city school districts in cities having one million inhabitants or more, and of boards of cooperative educational services, shall be submitted to the commissioner when the contemplated construction costs of such work are $10,000[FN1]or more, and for all projects affecting the health and safety of pupils.

(1) Documentation in such quantity and format as prescribed by the commissioner, including plans and specifications, addenda and change orders, shall be submitted to the commissioner for approval in accordance with procedures set forth by the commissioner. When approved, such documentation shall be retained by the department. A commissioner's approval letter referencing such documentation shall be sent to school authorities. School authorities shall maintain approved documentation, including copies of approved plans and specifications, addenda, change orders, and the associated commissioner's approval letter, for permanent filing.

(i) Plans and specifications shall conform to the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) and to this Part, and shall show in detail requirements of design and construction, space layout, circulation and exiting facilities, smoke and fire control, accident protection, visual and thermal environment and related electrical and mechanical work, and sanitation and related plumbing work which insure the health, safety and comfort of occupants of the facility.

(ii) Materials, equipment and types of construction which may endanger the health, safety and comfort of occupants shall not be used.

(iii) Construction materials, details and workmanship shall conform to generally accepted standards as determined by the commissioner.

(iv) Specifications for construction shall allow for equivalencies and shall not require the base bid to be based only on the materials or products specified.

(v) Specifications for construction shall require that contractors or suppliers furnishing mechanical equipment shall instruct the governing body of the school district or board of cooperative educational services or its representative in the proper operation and service of all such equipment at the time of completion and before acceptance of the building by such governing body.

(vi) Should accounting, tabulation or computer equipment be requested as original equipment, the plans and specifications shall conspicuously identify the areas or spaces for the installation of such equipment. Such plans and specifications shall contain a description of the equipment, its estimated costs, the need for and purpose of such equipment, a description of the space required to house the equipment, including the proposed pupil capacity of such space, and a description of the integral relationship between the construction work and the equipment. Such equipment shall not be approved for purposes of building aid computed pursuant to section 3602(6) of the Education Law, when located outside the constructed or reconstructed space or when not shown to have a direct integral relationship to the construction work.

(2) Plans and specifications for portions of facilities which require approval by other departments of the State shall be approved by the appropriate agencies having jurisdiction as a condition of commissioner's approval of plans and specifications of a facility. All plans and specifications for the creation of new instructional space must be accompanied by commissioner approval, on a form prescribed by the commissioner, that ensures that such plans and specifications are consistent with the region's special education space requirements plan developed pursuant to section 200.2(g) of this Title.

(3) Decisions regarding compliance of plans and specifications with this section shall be determined by the commissioner.

(4) Plans and specifications submitted to the commissioner shall bear the signature and seal of an architect or engineer licensed to practice in the State of New York. The architect or engineer who sealed the plans and specifications shall also certify that the plans and specifications conform to the standards set forth in the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) and the State Energy Conservation Construction Code (9 NYCRR Parts 7810 through 7816).

(5) Upon approval of plans and specifications, the commissioner will issue a building permit subject to the following qualifications:

(i) During construction, the project shall be properly supervised by a licensed architect or engineer.

(ii) The building permit may be revoked by the commissioner in the event of violations of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250), this Part or other safety standards imposed by law or regulation.

(6) Following completion of the project or a substantial portion thereof, the architect or engineer shall certify to the commissioner that the project was completed in conformance to the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250), this Part, and plans and specifications for the project which were previously approved by the commissioner.

(c) For remodeling or construction projects costing $5,000 or more, the governing body of a school district or a board of cooperative educational services shall assure compliance with the requirements of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) and of this Part, and shall retain the services of an architect or engineer licensed to practice in New York State.

(d) For remodeling or construction projects costing less than $5,000, the governing body of a school district or a board of cooperative educational services shall assure compliance with the requirements of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) and of this Part.

(e)

(1) For each project for which a certificate of substantial completion is issued on or after April 1, 1995, all school districts, including a city school district having one million inhabitants or more and all boards of cooperative educational services, shall submit to the Commissioner a final cost report for the project by June 30 of the school year in which the certificate of substantial completion of the project is issued by the architect or engineer, or six months after issuance of such certificate, whichever is later. For projects for which a certificate of substantial completion is issued prior to April 1, 1995, the deadline for submission of a final cost report for the project shall be October 1, 1995.

(2) The commissioner may grant one or more extensions of the applicable deadline for submission of a final cost report pursuant to this section, upon a finding that the district is unable to complete the final cost report by the prescribed date because of circumstances beyond the control of the district. Each extension may be granted for a period of up to one year.

RESEARCH REFERENCES AND PRACTICE AIDS:

94 NY Jur 2d, Schools, Universities, and Colleges §§  57, 369.

[FN1] When construction costs are $10,000 or more, building construction aid, pursuant to Education Law, section 3602, is available for eligible capital outlays.

Section 155.3 Comprehensive Public School Safety Program    Disclaimer


To ensure that all school facilities are properly maintained and preserved and provide suitable educational settings, the board of education of each school district and each board of cooperative educational services shall cause all occupied school facilities which are owned, operated or leased by the district or board to comply with the provisions of the Comprehensive Public School Safety Program as set forth in this section and the Uniform Code of Public School Building Inspections, Safety Rating and Monitoring, as prescribed in section 155.4 of this Part. For purposes of this section and sections 155.4 through 155.7 of this Part the term board of cooperative educational services shall be deemed to include a county vocational education and extension board. The Comprehensive Public School Safety Program shall consist of the following components:

(a) Building condition surveys. The board of education of each school district and each board of cooperative educational services shall develop building condition surveys for each occupied school building in accordance with section 3641(4) of the Education Law and the provisions of section 155.4(b)(1) of this Part.

(b) Annual visual inspections. The board of education of each school district and each board of cooperative educational services shall conduct annual visual inspections of each occupied school building in accordance with the provisions of section 155.4(b)(2) of this Part, provided that the board of education of each school district and each board of cooperative educational services shall implement a safety rating system for all occupied school buildings pursuant to section 155.4(c) of this Part.

(c) Five year capital facilities plan. The board of education of each school district and each board of cooperative educational services shall develop a new five year capital facilities plan pursuant to section 155.1(a)(4) of this Part or amend its existing plan to comply with such section, provided that in the case of a city school district in a city having a population of one million inhabitants or more, such plan shall also comply with section 2590-p of the Education Law. Five year capital facilities plans shall be consistent with all district planning requirements including, but not limited to, the regional five year special education space requirements plan required by section 200.2(g) of this Title. Every school district and board of cooperative educational services shall use the safety rating of each occupied building in developing or amending its five year facilities plan. Such plan shall identify critical maintenance needs.

(d) Monitoring system. The board of education of each school district and each board of cooperative educational services shall establish procedures to monitor the safety and condition of all occupied school buildings in accordance with the provisions of section 155.4(d) of this Part.

(e) Waivers. The board of education of a school district or a board of cooperative educational services may apply to the commissioner for a waiver of the requirements of this section, or of any of the provisions of section 155.4 or 155.5 of this Part, upon a finding that such district had in existence on the effective date of this Part, school building safety inspection procedures which are in substantial compliance with such requirements. Such waiver requests shall include:

(1) identification of the regulatory requirement from which a waiver is sought;

(2) a copy of the building inspection procedures alleged to be in substantial compliance to such regulatory requirement, together with proof that such procedures were in effect on the effective date of this Part; and

(3) the names and qualifications of the inspectors carrying out such procedures; copies of previous reports under such procedures; and records of actions taken to correct deficiencies identified using such procedures.

 

Section 155.4 Uniform Code of Public School Building Inspections, Safety Rating and Monitoring     Disclaimer

(a) Short title and application. This section, promulgated pursuant to sections 409-d, 409-e, 3602(6) and (6-e) and 3641(4) of the Education Law, shall be known as the Uniform Code of Public School Building Inspections, Safety Rating and Monitoring (hereinafter referred to as the code), and shall consist of three components: procedures for periodic inspections, a safety rating system and a monitoring system. The provisions of this section shall apply to all occupied public school buildings, provided that nothing herein shall prevent a school district or board of cooperative educational services from adopting stricter local codes. Such local code must meet or surpass all requirements of the code. Nothing herein shall affect a separate requirement to inspect and maintain school buildings pursuant to any other State or local law or regulation.

(b) Procedures for periodic inspections. To insure that all occupied school facilities are properly maintained and preserved and provide a suitable educational setting, the board of education of each school district shall cause such facilities owned, operated or leased by the district to be assessed in accordance with sections 409-d and 409-e of the Education Law and this section, and, where applicable, section 807-a of the Education Law and section 155.8 of this Part. Buildings shall be assessed by a building condition survey conducted once every five years, an annual fire safety inspection conducted pursuant to section 807-a of the Education Law and section 155.8 of this Part or pursuant to local law or codes, and an annual visual inspection conducted in years in which no building condition survey is conducted for the building.

(1) Building condition surveys. A building condition survey shall be conducted for all occupied school buildings on or before November 15, 2000 and at least every five years thereafter, provided that a building condition survey for new buildings which receive a certificate of substantial completion dated August 31, 1995 through September 30, 1999 shall not be required until November 15, 2005 and at least every five years thereafter; and provided further that new buildings which receive a certificate of substantial completion dated October 1, 1999 or thereafter shall be subject to a building condition survey every five years, starting with the second building condition survey following issuance of such certificate.

(i) The physical inspections required to complete the survey shall be conducted by a team that includes at least one licensed architect or engineer. The Commissioner of Education shall prescribe the format required to complete the survey.

(ii) The survey shall include, but not be limited to list of all program spaces and an inspection of the following building system components for evidence of movement, deterioration, structural failure, probable useful life, need for repair and maintenance and need for replacement:

(a) the building site, including utilities, paving, playgrounds, and play fields;

(b) roofing;

(c) exterior elements of the building, including walls, doors, windows, fire escapes;

(d) building structural elements;

(e) building interiors, including finishes, doors, and hardware;

(f) electrical systems, including service and distribution, lighting, communications, technology infrastructure and cabling;

(g) plumbing, including water distribution system, drainage system, and fixtures;

(h) heating and cooling systems, including boilers, furnaces, terminal units, and control systems;

(i) ventilation systems;

(j) air conditioning systems, including refrigeration, terminal units, and control systems;

(k) special construction, including stairs, elevators, escalators, and swimming pools;

(l) fire protection and security systems, including alarm, detection and fire protection; and

(m) environmental features, including appearance, cleanliness, acoustics, lighting quality, thermal comfort, humidity, ventilation and space adequacy.

(iii) Reports of building condition surveys, signed and sealed by the licensed architect or engineer, shall be submitted to the commissioner by January 15, 2001 and January 15th of every fifth year thereafter. Building aid computed pursuant to section 3602(6-e)(d) of the Education Law is available for building condition surveys conducted by a licensed architect or engineer if no claim for such a building condition survey in such a building has been filed in the previous five years. The apportionment of such building aid for each school building so inspected by a school district in the base year shall not exceed the lesser of the product of the building aid ratio and the actual cost, or the building condition survey aid ceiling computed by the commissioner. For aid payable in the 2000-2001 school year and thereafter, the building condition survey aid ceiling shall be the product of 20 cents plus an additional amount times the gross area of the building. Such additional amount shall be the result obtained when the cost of labor and material index determined by the New York State Department of Labor for the month of July of the current year is divided by the cost index for July 1999 and the result is rounded to two decimal places. A claim for building aid shall be made in a form prescribed by the commissioner, within six months of the date of the architect or engineer report, for aid payable in the following school year. Such reports shall be made available to the public on request.

(2) Annual visual inspections.

(i) A visual inspection of every occupied public school building shall be conducted annually provided, however, that a building condition survey conducted pursuant to paragraph (1) of this subdivision shall fulfill such requirement for the year in which such survey is conducted, and provided further that the commissioner may require more frequent inspections as deemed necessary to maintain the safety of school buildings and the welfare of their occupants.

(ii) The annual visual inspection shall consist of a visual re-inspection of the components of the building condition survey for changes that may have occurred and a review and update of the safety rating as needed.

(iii) The annual visual inspection shall be conducted by a team composed of a person certified by the Department of State as a code enforcement official, or in the case of the City of New York, a person certified by the New York City Building Department as a local code enforcement official, the district director of facilities or his or her designee, and a member of the health and safety committee required pursuant to subdivision (d) of this section.

(iv) If an annual visual inspection results in a determination that the building may have a deficiency that would result in a determination pursuant to subdivision (c) of this section that the safety rating of the building is unsatisfactory or unsafe/unhealthful, the board of education or board of cooperative educational services shall retain a licensed architect or engineer to perform a detailed inspection and develop a corrective action plan. In addition, the commissioner may require a board of education or board of cooperative educational services to conduct a detailed inspection by a licensed architect or engineer where the commissioner determines that:

(a) the school district or board of cooperative educational services has provided insufficient spending for maintenance, repair or capital renewal of the building; or

(b) the school provides a poor learning environment pursuant to section 100.2(p) of this Title.

(v) The annual visual inspection shall be completed by November 15 of each year not scheduled for a building condition survey.

(vi) The results of the annual visual inspection of all occupied buildings shall be reported to the commissioner on forms prescribed by the commissioner, shall be signed by the person or persons who conducted the inspection and shall be filed with the commissioner by January 15th. Such reports shall indicate if more frequent inspections and repairs are necessary to protect the health and safety of students and staff occupying such school buildings. Annual visual inspection reports shall be made available to the public.

(vii) Any person, or any public or other corporation for which any such person acts, shall not be liable for any error, omission or lack of thoroughness in the making of the inspection and report required or permitted by this section.

(c) Safety rating system. Each school district and board of cooperative educational services shall provide for the safety rating of all occupied school buildings keyed to the structural integrity and overall safety of the building on an annual basis.

(1) The safety rating shall be established by each district or board of cooperative educational services after consultation with the health and safety committee established pursuant to paragraph (d)(1) of this section and shall identify and assess the condition of every major system component of each occupied school building based upon overall assessment of the system or element, probable useful life, structural integrity, overall safety, need for repair and maintenance, need for replacement, the estimated cost of necessary repairs and/or replacement, and assessment of the effectiveness of the building comprehensive maintenance plan required by paragraph (d)(1) of this section.

(2) The major system components of each occupied school building shall be rated in one of the following categories:

(i) Excellent: identifies exemplar systems. No remediation required, requires only routine maintenance as identified in the building comprehensive maintenance plan.

(ii) Satisfactory: system is functioning reliably but routine maintenance and repair required.

(iii) Unsatisfactory: system is functioning unreliably or has exceeded its useful life. A corrective action plan is in place and repairs or replacement have been scheduled.

(iv) Unsafe/Unhealthful: system is non-functioning, unreliable or not functioning as designed. System endangers occupant health and/or safety, and/or has deficiencies that have resulted in serious accident or injury.

(v) Indeterminate: requires additional probing or testing and a summary report will be issued, or drawings or specifications are required.

(3) Building system deficiencies shall be categorized as health and safety, structural, comfort, or aesthetic.

(4) The overall rating of the building shall be determined by a weighted system developed by the commissioner in consideration of paragraphs (2) and (3) of this subdivision and in accordance with the following categories:

(i) Excellent: systems rated in overall excellent condition. Preventive maintenance plan in place.

(ii) Good: systems rated in overall good or better condition.

(iii) Satisfactory: any system categorized as comfort or aesthetic rated as unsatisfactory. All systems categorized as health and safety or structural rated good or better.

(iv) Unsafe/unhealthful: any system categorized as health and safety or structural rated unsafe and or unhealthful. This rating shall result in the revocation of the building's certificate of occupancy.

(d) Monitoring system. Boards of education and boards of cooperative educational services shall establish a process to monitor the condition of occupied public school buildings in order to assure that they are safe and maintained in a state of good repair. Such process shall include the following elements:

(1) Establishment of a health and safety committee comprised of representation from district officials, staff, bargaining units and parents.

(2) Establishment of a comprehensive maintenance plan for all major building systems to ensure the building is maintained in a state of good repair. Such plan shall include provisions for a least toxic approach to integrated pest management and establishing maintenance procedures and guidelines which will contribute to acceptable indoor air quality. The comprehensive maintenance plan shall be available for public inspection.

(3) The annual review and approval by the board of education or board of cooperative educational services of the annual building inspection reports and the five year building condition surveys.

(4) In the case of city school districts in cities having a population of 125,000 inhabitants or more, the annual review and approval by the board of education of district efforts for the care, custody, control and safekeeping of all school property as required by section 2554(4) of the Education Law.

(5) Procedures for assuring that an annual fire safety inspection of each building is conducted in accordance with section 807-a of the Education Law or applicable local laws or codes.

(6) Procedures for assuring that a current and valid certificate of occupancy is maintained for each building and posted in a conspicuous place. The New York City Board of Education shall post current and valid certificates of occupancy for buildings in accordance with the New York City building code and other applicable city regulations.

(7) Procedures for investigation and disposition of complaints related to health and safety. Such procedures shall involve the health and safety committee and at a minimum shall conform to the following requirements:

(i) Provide for a written response to all written complaints. Such written response shall describe:

(a) the investigations, inspections or tests made to verify the substance of the complaint, or a statement explaining why further investigations, inspections or tests are not necessary;

(b) the results of any investigations, inspections or tests which address the complaint;

(c) the actions, if any, taken to solve the problem; and

(d) the action, if any, taken if the complaint involved a violation of law or of a contract provision.

(ii) A copy of the response shall be forwarded to the health and safety committee.

(iii) Copies of all such correspondence shall be kept in a permanent project file.

(iv) Such records shall be made available to the public upon request.

(8) In the case of the New York City School District, the board of education shall report quarterly to the commissioner on the status of correcting violations issued by the New York City Department of Buildings. Such report shall indicate the progress made towards completing the projects identified in the educational facilities master plan.

(9) Every board of education and board of cooperative educational services shall take actions to immediately remedy serious conditions affecting health and safety in school buildings, and shall report such actions to the commissioner.

(10) All school construction and maintenance activities shall comply with the Uniform Safety Standards for School Construction and Maintenance Projects as set forth in section 155.5 of this Part.

 

Section 155.5 Uniform Safety Standards for School Construction and Maintenance Projects     Disclaimer

(a) Monitoring of construction and maintenance activities. The occupied portion of any school building shall always comply with the minimum requirements necessary to maintain a certificate of occupancy and shall be monitored during construction or maintenance activities for safety violations by school district personnel. It is the responsibility of the board of education or board of cooperative educational services to assure that these standards are continuously maintained when the building or any portion thereof is occupied.

(b) Investigation and disposition of complaints relating to health and safety received as a result of construction and maintenance activities. Boards of education and boards of cooperative educational services shall follow procedures established under section 155.4(d)(7) of this Part.

(c) Pre-construction testing and planning for construction projects.

(1) Boards of education and boards of cooperative educational services shall assure that proper planning is made for safety of building occupants during construction. For all construction projects for which bids are issued on or after September 30, 1999, such boards shall assure that safety is addressed in the bid specifications and contract documents before contract documents are advertised for bid. All school areas to be disturbed during renovation or demolition shall be tested for lead and asbestos. Appropriate procedures to protect the health of building occupants shall be included in the final construction documents for bidding.

(2) Boards of education and boards of cooperative educational services shall establish procedures for involvement of the health and safety committee to monitor safety during school construction projects. The health and safety committees in school districts other than in cities with one million inhabitants or more shall be expanded during construction projects to include the project architect, construction manager, and the contractors. Such committee shall meet periodically to review issues and address complaints related to health and safety resulting from the construction project. In the case of a city school district in a city of one million inhabitants or more, the board of education shall submit procedures for protecting health and safety during construction to the commissioner for approval. Such procedures shall outline methods for compliance with this section.

(3) The district emergency management plan shall be updated to reflect any changes necessary to accommodate the construction process, including an updated emergency exit plan indicating temporary exits required due to construction. Provisions shall be made for the emergency evacuation and relocation or release of students and staff in the event of a construction incident.

(4) Fire drills shall be held to familiarize students and staff with temporary exits and revised emergency procedures whenever such temporary exits and revised emergency procedures are required.

(d) Pre-construction notification of construction projects. The board of education or board of cooperative educational services shall establish procedures for notification of parents, staff and the community in advance of a construction project of $10,000 or more to be conducted in a school building while the building is occupied. Such procedures shall provide notice at least two months prior to the date on which construction is scheduled to begin, provided that in the case of emergency construction projects, such notice shall be provided as far in advance of the start of construction as is practicable. Such notice shall include information on the district's obligations under this section to provide a safe school environment during construction projects. Such notice requirement may be met by publication in district newsletters, direct mailings, or holding a public hearing on the project to inform parents, students, school personnel and community members.

(e) General safety and security standards for construction projects.

(1) All construction materials shall be stored in a safe and secure manner.

(2) Fences around construction supplies or debris shall be maintained.

(3) Gates shall always be locked unless a worker is in attendance to prevent unauthorized entry.

(4) During exterior renovation work, overhead protection shall be provided for any sidewalks or areas immediately beneath the work site or such areas shall be fenced off and provided with warning signs to prevent entry.

(5) Workers shall be required to wear photo identification badges at all times for identification and security purposes while working at occupied sites.

(f) Separation of construction areas from occupied spaces. Construction areas which are under the control of a contractor and therefore not occupied by district staff or students shall be separated from occupied areas. Provisions shall be made to prevent the passage of dust and contaminants into occupied parts of the building. Periodic inspection and repairs of the containment barriers must be made to prevent exposure to dust or contaminants. Gypsum board must be used in exit ways or other areas that require fire rated separation. Heavy duty plastic sheeting may be used only for a vapor, fine dust or air infiltration barrier, and shall not be used to separate occupied spaces from construction areas.

(1) A specific stairwell and/or elevator should be assigned for construction worker use during work hours. In general, workers may not use corridors, stairs or elevators designated for students or school staff.

(2) Large amounts of debris must be removed by using enclosed chutes or a similar sealed system. There shall be no movement of debris through halls of occupied spaces of the building. No material shall be dropped or thrown outside the walls of the building.

(3) All occupied parts of the building affected by renovation activity shall be cleaned at the close of each workday. School buildings occupied during a construction project shall maintain required health, safety and educational capabilities at all times that classes are in session.

(g) Maintaining exiting and ventilation during school construction projects. The following information shall be included in all plans and specifications for school building projects:

(1) A plan detailing how exiting required by the applicable building code will be maintained during construction. The plan shall indicate temporary construction required to isolate construction equipment, materials, people, dust, fumes, odors, and noise during the construction period. Temporary construction details shall meet code-required fire ratings for separation and corridor enclosure. At a minimum, required exits, temporary stairs, ramps, exit signs, and door hardware shall be provided at all times.

A plan detailing how adequate ventilation will be maintained during construction. The plan shall indicate ductwork which must be rerouted, disconnected, or capped in order to prevent contaminants from the construction area from entering the occupied areas of the building. The plan shall also indicate how required ventilation to occupied spaces affected by construction will be maintained during the project.

(h) Fire and hazard prevention. Areas of buildings under construction that are to remain occupied shall maintain a certificate of occupancy. In addition, the following shall be strictly enforced:

(1) No smoking is allowed on public school property, including construction areas.

(2) During construction daily inspections of district occupied areas shall be conducted by school district personnel to assure that construction materials, equipment or debris not block fire exits or emergency egress windows.

(3) Proper operation of fire extinguishers, fire alarm, and smoke/fire detection systems shall be maintained throughout the project.

(i) Noise abatement during construction and maintenance activities. Construction and maintenance operations shall not produce noise in excess of 60 dba in occupied spaces or shall be scheduled for times when the building or affected building spaces are not occupied or acoustical abatement measures shall be taken. Noise level measurements (dba) shall be taken with a type 2 sound level meter in the occupied space in a location closest to the source of the noise. Complaints regarding excessive noise shall be addressed through the health and safety committee. The district should anticipate those times when construction noise is unacceptable and incorporate "no work" periods into the bid specifications.

(j) Control of chemical fumes, gases, and other contaminants during construction and maintenance projects. The bid specifications and construction contracts for each construction project shall indicate how and where welding, gasoline engine, roofing, paving, painting or other fumes will be exhausted. Care must be taken to assure fresh air intakes do not draw in such fumes.

(1) The bid specifications shall require schedules of work on construction and maintenance projects which include time for off-gassing of volatile organic compounds introduced during construction before occupancy is allowed. Specific attention is warranted for activities including glues, paint, furniture, carpeting, wall coverings, and drapery. Manufacturers shall be contacted to obtain information regarding appropriate temperatures and times needed to cure or ventilate the product during use and before safe occupancy of a space can be assured. Building materials or furnishings which off-gas chemical fumes, gases, or other contaminants shall be aired out in a well ventilated heated warehouse before it is brought to the project for installation or the manufacturer's recommended off-gassing periods must be scheduled between installation and use of the space. If the work will generate toxic gases that cannot be contained in an isolated area, the work must be done when school classes and programs are not in session. The building must be properly ventilated and the material must be given proper time to cure or off-gas before re-occupancy.

(2) Manufacturer's material safety data sheets (MSD) shall be maintained at the site for all products used in the project. MSDS must be provided to anyone who requests them. MSDS indicate chemicals used in the product, product toxicity, typical side effects of exposure to the product and safe procedures for use of the product.

(k) Asbestos abatement protocols. All asbestos abatement projects shall comply with all applicable Federal and State laws including but not limited to the New York State Department of Labor industrial code rule 56 (12 NYCRR 56), and the Federal Asbestos Hazard Emergency Response Act (AHERA), 40 CFR part 763 (Code of Federal Regulations, 1998 Edition, Superintendent of Public Documents, U.S. Government Printing Office, Washington, DC 20402; 1998; available at the Office of Facilities Planning, Education Building Annex, Room 1060, State Education Department, Albany, NY 12234). Large and small asbestos projects as defined by 12 NYCRR 56 shall not be performed while the building is occupied. Minor asbestos projects defined by 12 NYCRR 56 as an asbestos project involving the removal, disturbance, repair, encapsulation, enclosure or handling of 10 square feet or less of asbestos or asbestos material, or 25 linear feet or less of asbestos or asbestos material may be performed in unoccupied areas of an occupied building in accordance with the above referenced regulations.

(l) Lead paint. Any construction or maintenance operations which will disturb lead based paint will require abatement of those areas pursuant to protocols detailed in the "Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing" (June 1995; U.S. Department of Housing and Urban Development, Washington, D.C. 20410; available at the Office of Facilities Planning, Education Building Annex, Room 1060, State Education Department, Albany, NY 12234). All areas scheduled for construction as well as areas of flaking and peeling paint shall be tested for the presence of lead and abated or encapsulated in accordance with the above noted guidelines.

(m) Radon. Districts shall take responsibility to be aware of the geological potential for high levels of radon and to test and mitigate as appropriate. This information is available from the New York State Department of Health Radon Measurement Database.

(n) Post construction inspection. The school district or board of cooperative educational services shall provide the opportunity for a walk-through inspection by the health and safety committee members to confirm that the area is ready to be reopened for use.

 

Section 155.6 School facility report cards     Disclaimer

(a) Commencing January 1, 2001 and each year thereafter, every school district and board of cooperative educational services shall prepare a school facility report card for each occupied school building. In the case of the New York City School District, the Chancellor of the City School District shall prepare school facility report cards for facilities of community school districts and of the central board.

(b) The school facility report card for each building shall be reviewed annually by the board of education or board of cooperative educational services. The board of education or board of cooperative educational services shall report in a public meeting or, in the case of the New York City School District, in public meetings held in each community school district on the status of each item set forth in subdivision (c) of this section for each facility located in the district in which the public meeting is held.

(c) The school facility report card shall contain the following information in a format prescribed by the commissioner:

(1) building age;

(2) building size;

(3) enrollment by building;

(4) rated capacity of the building;

(5) list of program spaces;

(6) probable useful life of the building;

(7) five-year building condition survey results;

(8) annual building visual inspection results;

(9) school building safety rating;

(10) certificate of occupancy status and expiration date;

(11) five-year capital facilities plan status;

(12) estimated costs to restore the school buildings to a state of good repair;

(13) estimated costs to keep the building in a state of good repair;

(14) projected operations and maintenance spending for the current school year;

(15) need for routine maintenance, repairs, rehabilitation, reconstruction, construction and other improvements;

(16) estimated energy costs for the current school year;

(17) a description of Health and Safety Committee activities; and

(18) the following environmental information:

(i) status of the Federal Asbestos Hazard Emergency Response Act (AHERA) plan;

(ii) status of measures taken to assure acceptable indoor air quality;

(iii) status of any required lead testing;

(iv) status of any required radon testing;

(v) status of the district's integrated pest management program; and

(vi) name of the right-to-know designee for the building.

 

Section 155.7 Health and safety in existing educational facilities    Disclaimer

Facilities in school districts, other than city school districts in cities having 125,000 inhabitants or more, shall meet the following requirements and, in particular instances, such other requirements as may be deemed necessary by the commissioner to insure the health and safety and accident protection of occupants.

(a) Exits.

(1) There shall be at least two means of egress remote from each other, leading from each floor occupied by pupils, including basements.

(i) When pupils enter into a corridor, there shall be a choice of two unobstructed means of egress in different directions.

(ii) Handrails shall be provided on at least one side of stairways, and on both sides of stairways 88 inches or more in width.

(iii) There shall be no storage under any stairs or landings unless the enclosure is of approved fire-resistant construction.

(iv) Provision of fire escapes of approved design may be required where other exits are determined to be inadequate for fire safety.

(2) Dead-end corridor pockets shall not exceed a maximum depth of 11/2times the width of the pocket or 11/2 times the width of the corridor, whichever is less, unless otherwise approved by the commissioner.

(3) Corridors and exitways shall be kept clear and free of obstructions at all times.

(4) Fixed and portable security gates shall not be located or used where they will obstruct exits or create dead-end conditions for occupied spaces.

(5) Every space of pupil occupancy over 500 square feet in area shall have two separate means of egress from such space. A space of pupil occupancy is any room or self-contained space housing pupils on a regular basis, other than a place of assembly or small rooms where no more than 10 pupils are under direct, responsible, adult supervision. Each means of egress shall be in a separate smoke zone, unless immediately adjacent to an approved exit. The primary exit is commonly the opening to the corridor. The second means of egress may be a door opening into a separate smoke zone, or a door directly to the exterior, or a window of such size and design that will facilitate egress, or a door providing egress through adjacent spaces where specifically approved.

(i) Any point in a space of pupil occupancy shall not exceed a maximum of 50 feet straight-line distance to an exit, unless otherwise approved by the commissioner. Any additional exit necessary to satisfy this requirement shall be remote and may be required to be directly to the exterior.

(ii) When spaces of pupil occupancy are defined in an open area by wardrobes, cabinetry and other furniture which does not present obstructions to egress and which allows students to circulate freely from one space to another, the total open space is considered, for exiting purposes, as a single space. Exits from such open-planned space shall meet requirements determined by the commissioner.

(6) Required emergency egress windows shall be of a size and design, including hardware and, in appropriate instances, steps or ladder to high sills, that will permit and facilitate emergency egress. Such windows shall be free of obstructing screens or storm sash.

(i) The minimum clear opening area for such windows shall be six square feet, with a minimum dimension of 24 inches, unless otherwise approved by the commissioner.

(ii) At least one such window in each space of pupil occupancy shall be marked with an appropriate sign identifying it as an emergency egress window.

(7) Places of assembly. A place of assembly is any area used for the assembly of 100 or more persons, and spaces over 1800 square feet in area used for the assembling of persons. A place of assembly shall have at least two exits remote from each other.

(i) Maximum occupancy for places of assembly shall be based on the number and size of existing approved exits on the basis of 50 persons for each one-half exit unit of 11 inches. Where existing exits are inadequate for the occupancy capacity of a place of assembly, or when directed by the commissioner, signs restricting the number of occupants shall be conspicuously posted at each exit location. Signs shall read in red letters on white background:

"MAXIMUM OCCUPANCY --3" high, 3/4" stroke

NOT TO EXCEED --2" high, 1/2" stroke

XXX PERSONS" --3" high, 3/4" stroke

(8) Courtyards with completely enclosed perimeters are areas of possible pupil occupancy and must be provided with exits as a space of pupil occupancy and as follows, unless otherwise approved by the commissioner:

(i) Enclosed courts up to a 700-square foot area shall have at least one exit equipped with hardware of a type which will always permit the door to be opened from the court side without the use of a key.

(ii) Enclosed courts of more than a 700-square foot area shall have at least two exits, remote from each other, equipped with hardware of a type which will always permit the door to be opened from the court side without the use of a key.

(9) Hardware.

(i) All door hardware from spaces of pupil occupancy shall be of a type that will always permit the door to be opened from within the space without the use of a key.

(ii) All exterior and interior doors in exitways, and exit doors from places of assembly shall have panic hardware, except that panic hardware is not required for push/pull interior exit doors if these doors have nonlatching hardware. Panic hardware shall not be required for exterior corridor doors serving less than three classrooms or for doors serving only service areas such as boiler room, kitchen or storerooms.

(iii) Exit doors shall not be locked or chained or otherwise rendered inoperable from the inside at any time.

(b) Smoke and fire control. As used in this subdivision, the terms Class "A", "B" or "C" refer to types of construction which are defined by subdivision 11 of section 11 of the Local Finance Law.

(1) In Class "B" and Class "C" buildings of two stories or more, unless otherwise approved, stairs shall be enclosed at each floor level and every floor shall be separated from levels above and below by stair enclosures and/or smoke barriers constructed to obstruct effectively the passage of smoke and fumes, or every space of pupil occupancy shall be provided with direct exit to the exterior. In appropriate instances, alternate means of egress may be required and stairway enclosures in Class "A" construction may be required.

(2) Class "B" and Class "C" buildings shall not have places of assembly above the first floor, except in a Class "B" building a written exception may be granted where it is determined by the commissioner that adequate exits exist.

(3) In appropriate instances, doors, walls and ceilings of places of assembly and exitways (corridors, stairs, vestibules, etc.) may be required to be finished with fire retardant materials or coatings.

(4) Stairway enclosures required by paragraph (1) of this subdivision and smoke barriers required by paragraph (5) of subdivision (a) of this section shall be constructed of noncombustible materials of such design and detail to obstruct effectively the passage of smoke and fumes.

(i) Doors in stair enclosures and smoke barriers shall be metal, metal covered, approved treated wood construction, or solid bonded core wood doors not less than 13/4 inches thick.

(ii) Glazing in doors, sidelights and frames shall be one-quarter inch wire glass.

(iii) Such doors shall swing in the direction of egress, with no latching or locking devices unless operated by panic hardware. Double-acting hinged doors are not permitted and corridor pockets opposing swing of doors shall conform to the provisions of paragraph (2) of subdivision (a) of this section.

(iv) Such doors shall be self-closing and maintained in a normally closed position unless approved automatic release devices are provided, whereby upon interruption of an electrical circuit, the door is released and becomes self-closing. The electrical circuit shall be positively interrupted by operation of an approved smoke detection system and/or activation of the building fire alarm system. Fusible links shall not be used to hold open such doors.

(5) Wood floors shall not be treated or finished with oil. Floors so finished previously shall be cleaned and refinished with a penetrating seal.

(6) Fire extinguishers shall be located so that no point in a corridor, lobby or stair is more than 120 feet from an extinguisher. Fire extinguishers shall also be placed readily accessible to auditorium stages, shops, cafeterias and kitchens, boiler rooms, science labs and accessible from other places which are possible sources of fire. Fire extinguishers shall bear the Underwriter's label and be of a type most suitable for the kind of fire most likely to occur in a given area.

(7) Fire-resistive (hourly rated) floors, interior walls and doors, and ceilings shall be provided at the following spaces unless otherwise approved by the commissioner. Those spaces having a roof over the entire space may have roof construction and ceilings of nonrated fire- resistive materials.

(i) Two-hour fire-rated construction with 11/2 hour fire-rated, self-closing fire doors are required at:

(a) boiler, heater or furnace rooms;

(b) refrigeration, electrical and equipment rooms;

(c) incinerator rooms;

(d) storerooms for fuel, flammable liquids and gas powered equipment; and

(e) transformer vaults.

(ii) Required fire doors shall be maintained in a normally closed position and not held open by fusible links.

(iii) Combustible attic space shall not be used for storage.

(c) Accident protection.

(1) Glazing of panels and doors shall be with safety glazing materials as follows, unless glazed areas are protected by approved grilles or rails:

(i) interior exit doors, exterior exit doors and immediately adjacent sidelights, except where glazing is 48 inches or more above the floor;

(ii) all glazed panels where glazing is within 18 inches of the floor, or platform level of music-room type risers;

(iii) gymnasiums and playrooms and elsewhere where subject to physical abuse;

(iv) acceptable safety glazing materials shall be at least one-quarter inch thick wire glass, one-quarter inch tempered (heat treated) glass, one-quarter inch laminated safety glass, or approved plastic materials.

(2) Glazed doors and sidelights within six feet of such doors shall be marked by appropriate means in accord with the provisions of Part 47 of Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York, except marking on door and/or sidelight is not required:

(i) where less than 80 percent of the area of the door or sidelight above a reference line 18 inches above the floor is glazed;

(ii) where width of sidelight is not more than 20 inches, with 1 3/4 inch minimum opaque stiles;

(iii) where floor treatment a distance of three feet out from a sidelight will deter approach;

(iv) where sidelights are supported on 18-inch minimum height opaque sill and wall construction;

(v) where sidelights are protected by approved 18-inch minimum height permanent barriers such as benches, planters or guardrails, extending across at least two thirds of the sidelight.

(3) Window cleaning. Safety provisions shall be made for persons engaged in window cleaning. Windows shall be cleaned from approved safe surfaces, windowsills or ledges, boatswain's chairs or scaffolds, all as defined in Part 21 of Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

(i) A safe surface is a place where the cleaner is working not over six feet off the floor or grade and not over three feet above a stair run. Ladders may be used generally when the top of the window is not over 35 feet above grade or floor. Windowsills and ledges may be used when the window openings are provided with approved anchors for use with safety belts. Approved boatswain's chairs and scaffolds also may be used.

(d) Mechanical. Mechanical equipment, heat-producing and cooling equipment, auxiliary apparatus and controls, and installation and use of same, shall be such as will insure safe operation in accord with applicable recognized standards, as determined by the commissioner, and be consistent with efficient energy consumption.

(1) Gas and oil fuel-burning equipment having a capacity of over 400,000 BTU per hour shall be provided with electronic flame safeguard controls which, upon flame failure, shall normally respond in two to four seconds to cut off fuel supply through the burner and main fuel valve.

(2) All primary controls for fuel-burning equipment shall operate on a 120- volt, single- phase grounded circuit. Such controls generally include the hold-in coil of the motor starter, the solenoid coil for the pilot valve, the solenoid coil for the main fuel valve or the actuator for the motorized fuel valve, the ignition transformer and the modulator transformer.

(3) Direct-fired fuel-burning heating units shall not be used in any space of pupil occupancy.

(4) Unused duct work shall be sealed off at each floor level with fire-resistive materials.

(5) Ventilation with fresh air shall be available in all occupied spaces.

(e) Water and sanitation.

(1) An adequate supply of safe, potable water for drinking shall be dispensed from approved sanitary drinking fountains.

(2) Toilet rooms for boys and girls, with flush toilets and wash sinks which are connected to an adequate water supply under pressure, and connected to an approved individual or public sewage disposal system, shall be provided.

(3) No source of water supply, nor sewage disposal system, shall be used which has not been approved by the appropriate agency of the State Department of Health or Department of Environmental Conservation.

(f) Gas.

(1) Gas entering a school building shall be low-pressure gas.

(2) Gas transmission and distribution piping shall meet the requirements of the Public Service Commission.

(g) Electrical. Electrical equipment and auxiliary apparatus and controls, and installation and use of same, shall be such as will insure safe operation in accord with applicable recognized standards, as determined by the commissioner, and be consistent with efficient energy consumption.

(1) Suitable and sufficient artificial light shall be provided for the visual tasks being performed.

(2) Exit lights. School buildings shall be provided with exit lights to identify building exits, stairs, corridors, and exits from places of assembly, and to designate the path of travel to the exterior, except school buildings having six or less classroom areas may have exit signs in place of exit lights.

(i) The word "EXIT" shall be in letters not less than 4 1/2 inches high and strokes not less than 3/4 inches wide.

(ii) Exit lights shall be circuited and wired to minimize the possibility of interruption.

(3) Emergency lighting. Automatic emergency lighting systems shall be provided for places of assembly exceeding an area of 1800 square feet, and for all exitways leading from such areas. Such areas include all-purpose rooms, auditoriums, cafeterias, group-instruction rooms, playrooms and gymnasiums, swimming pools and other combination places of assembly.

(4) Fire alarm.

(i) School buildings of seven or more classroom areas shall be equipped with a manually operated electric fire-alarm system, which may include automatic smoke and/or fire detection, which will continue to sound the alarm until the tripped station has been restored to normal operation or, in an existing system, has completed a cycle of not less than 30 seconds.

(ii) School buildings of one to six classroom areas shall be equipped with either a manual, hand or electric, fire alarm which is capable of being sounded for such a period of time as will insure evacuation of the building, or an electric fire-alarm system as described in subparagraph (i) of this paragraph.

(iii) School buildings within fire districts having an electrically operated, street-located general municipal fire-alarm box system shall have, wherever practical, the school building fire-alarm system interconnected to the municipal system, so that sounding of the school building fire-alarm system automatically gives the alarm to the fire department affording protection to the school building. Wherever practical, a fire-alarm box compatible with the municipal system, which will sound the alarm of the school building system, shall be accessibly located on the site or on the school building.

(5) Telephone. A telephone which can be used in the case of emergency shall be provided in all buildings having pupil occupancy.

(h) Additions and alterations. In the case of additions to or alterations of an existing facility, the requirements of this section must be continuously maintained during the construction period, or provisions made to provide equivalent safety to the school-district-occupied portions of the facility.

(i) Facilities shall be operated and maintained to provide effectively for the accident protection and life safety of occupants, to reduce exposure to property loss by fire, and to assure efficient use of natural resources.

(j) When, based on these regulations, it is the judgment of the commissioner that the general conditions of a school building, or any part thereof, indicate that it would be detrimental to the health and safety of occupants, the commissioner may designate an area or areas of the building as unusable for pupil occupancy or may limit the number of occupants thereof.


Section 155.8 Fire and building safety inspections      Disclaimer

(a) All buildings which are owned, operated or leased by a public school district or board of cooperative educational services shall be inspected for fire safety at least once annually, pursuant to a schedule determined by the commissioner, or at any other time deemed necessary by the commissioner. Any cost of such inspection shall be borne by the school district or board of cooperative educational services.

(b) All inspections shall be performed, within a period of time determined by the commissioner, by an inspector who is qualified pursuant to procedures established by the State Fire Administrator. The report of the inspection shall be on a form supplied by the commissioner.

(c) Any violation of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) or of this Part shall be corrected immediately unless it is impracticable to do so. Violations which are not corrected immediately shall be corrected within a period of time approved by the commissioner.

(d) Where a board of education or board of cooperative educational services is required to convene meetings pursuant to section 807-a(5)(e) of the Education Law, the board shall:

(1) review each nonconformance with the requirements of section 155.3 of this Part or of 9 NYCRR Parts 1150 through 1197 recorded on the report during the fire inspection;

(2) identify all such nonconformances which have not been corrected by the date of the meeting; and

(3) adopt a plan, in a form prescribed by the commissioner, for correcting all such nonconformances.

(e) No building which is owned, operated or leased by a board of education or a board of cooperative educational services shall be occupied or otherwise used unless the building has a valid certificate of occupancy issued by the commissioner.

(1) A certificate of occupancy will be issued by the commissioner following the annual inspection, if the inspection indicates the building is suitable for occupancy and free of violations of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) and of this Part.

(2) The commissioner may issue a temporary certificate of occupancy at any time if the building is suitable for occupancy and if the board of education or board of cooperative educational services has adopted a plan, subsequently approved by the commissioner, for correcting all violations, pursuant to subdivision (c) of this section.

(3) A certificate of occupancy, a temporary certificate or a building permit may be denied or revoked for any one of the following reasons:

(i) failure to comply with any provision of this Part;

(ii) failure to comply with any provisions of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250);

(iii) failure to comply with the provisions of section 807-a of the Education Law;

(iv) failure to file an annual or other fire safety inspection report in a timely manner;

(v) failure to correct and/or plan for correction of any nonconformance with the requirements of section 155.3 of this Part, or of 9 NYCRR Parts 1150 through 1197, which appears on the fire safety inspection report in a timely manner;

(vi) existence of any nonconformance with the requirements of section 155.3 of this Part, or of 9 NYCRR Parts 1150 through 1197, which appears on the fire safety report and which indicates that a building is not suitable for occupancy or intended use;

(vii) repeated violations of the State Uniform Fire Prevention and Building Code (9 NYCRR Parts 600 through 1250) or this Part; or

(viii) violation of other health or safety standards, imposed by law or regulation, which indicate that a building is not suitable for occupancy or intended use.

 

Section 155.9 Environmental quality review     Disclaimer

School districts shall follow the procedures in 6 NYCRR Part 617 in connection with any action proposed by such districts which requires approval of the commissioner pursuant to Education Law, sections 408 and 1950. As used in this section, school district shall mean any school district, other than school districts in cities having one million inhabitants or more, and any board of cooperative educational services.

RESEARCH REFERENCES AND PRACTICE AIDS:

55 NY Jur 2d, Environmental Rights §§ 57-64.

94 NY Jur 2d, Schools, Universities and Colleges §§ 366, 367, 371.

61A Am Jur 2d, Pollution Control §§ 46-49.

68 Am Jur 2d, Schools §§ 71, 75.

 

Section 155.10 School swimming pools     Disclaimer

Use of school swimming pools shall at all times be under the personal supervision of a lifeguard possessing, as a minimum qualification, a current senior lifesaving certificate from the American National Red Cross or a equivalent certifying agency approved by the State Commissioner of Health.

 

Section 155.11 Acquisition of existing buildings    Disclaimer

(a) Any existing school building or school buildings shall be appraised as school buildings, and the land on which they are situated shall be appraised as school sites by the State Board of Equalization and Assessment.

(b) The value of any existing building not used for school purposes shall be determined by referring to the assessment roll or rolls on which the property is located or by an appraisal caused to be made by the board of education.

(c) An estimate shall be made of the cost of any necessary renovation due to the age and condition of the building by an engineer or architect licensed to practice in the State of New York and retained by the school district contemplating the purchase of an existing building.

(d) The combined costs of acquisition and renovation due to the age and condition of the building shall not exceed the cost, estimated by an engineer or architect licensed to practice in the State of New York, to construct a new building having comparable features on a comparable site. Any apportionment for the above acquisition and renovation shall be based on the maximum cost allowance determined in accordance with the provisions of subdivision 6 of section 3602 of the Education Law.

(e) Any proposed renovation of such existing structure shall be undertaken only with the prior approval of the Commissioner of Education and shall comply with applicable provisions of sections 155.1 and 155.3 of this Part.

 

Section 155.12 Lease approval and building aid for leased school buildings and facilities by school districts     Disclaimer

(a) Definitions. As used in this section:

(1) Annual lease means a lease of real property, the term of which is no greater than one school year, which terminates no later than June 30th.

(2) Multi-year lease means a lease of real property, the term of which is greater than one school year, which terminates no later than June 30th of any school year.

(b) Approval of leases outside of New York City. To obtain prior approval of a lease pursuant to sections 403-b(1)(c), 2503(8) and/or 2554(6) of the Education Law, the board of education of a union free, central, central high school or city school district other than the city school district of the City of New York shall submit the following to the commissioner:

(1) the proposed lease, which shall be an annual lease, multi-year lease or an amendment or extension thereof, shall include the following information:

(i) the complete legal names and addresses of all parties and the address of the leased property;

(ii) the lease term; and

(iii) the amount, frequency and due dates for lease payments, including the total of payments for the duration of the lease term;

(2) to show need, a copy of the district's updated long-range facilities plan required pursuant to section 155.1 of this Part which includes the proposed leased space as well as all other planned acquisitions, disposals and leasing of buildings for school purposes during the period of the plan; and

(3) to show that the proposed leased facility meets all applicable standards for the health, safety and comfort of the occupants, is educationally adequate and where the facility is located on its site:

(i) a request for approval of use on the form prescribed by the commissioner;

(ii) concerning State Uniform Fire Prevention and Building Code conformance (9 NYCRR Parts 600-1250);

(a) a copy of the current certificate of occupancy issued by the local code enforcement agency; or

(b) certification by a licensed architect/engineer that the whole building, as well as the space being used, complies with applicable provisions of Chapter C of the Uniform Fire Prevention and Building Code (9 NYCRR Parts 600-1250);

(iii) the fire safety report required by section 155.4 of this Part:

(a) with no nonconformances; or

(b) in the case of nonconformances, certification that correction of the nonconformances are part of a capital project submitted with the lease approval request;

(iv) a site plan; and

(v) floor plan(s); and

(4) to indicate the location of the leased facility, certification by the superintendent of schools that:

(i) the leased school/facility is located within the district but not on district-owned property; or

(ii) the leased school/facility is owned by and is located in a neighboring union free or central school district. The distance between the two districts in miles shall be provided by the superintendent;

(5) certification by an attorney representing the board of education that:

(i) the board has taken proper procedural steps to authorize the lease;

(ii) the initial term of the lease, not including any renewals thereof, does not exceed the period of probable usefulness that would be prescribed for such building or facilities by the Local Finance Law if the building or facility were owned by a school district;

(iii) voter approval has been obtained where required by law:

(a) for a lease longer than five years;

(b) in the case of renewals; and

(c) for any capital project to be undertaken in a leased building or facility;

(iv) the lease does not include an option to buy;

(v) the lease includes a provision that the lease shall be void and unenforceable if entered into in violation of section 801 of the General Municipal Law or section 410 of the Education Law; and

(vi) the lease payments or other annual payment under the lease does not include the costs of heat, electricity, water or other utilities or the costs of operation or maintenance of the leased facility;

(6) for a district seeking aid for lease expense pursuant to subdivision 6 of section 3602 of the Education Law, a certification by the superintendent of schools that:

(i) the leased school or facility meets requirements for access by individuals with disabilities to both facilities and programs by complying with section 200.2 of this Title and is consistent with the special education space requirements plan developed pursuant to section 200.2(g) of this Title; and

(ii) the leased space will be used to house programs for pupils in grades preK-12, who are enrolled in any prekindergarten or nursery school program offered by the school district pursuant to section 1712, 2514 or 2555 of the Education Law or who are over five and under 21 years of age and who have not received a high school diploma, with minimal associated administrative and support service space.

(c) Approval of capital projects outside of New York City. To obtain prior approval of a capital project in a leased building or leased facility during the term of the lease, pursuant to sections 403-b(1)(b), 2503(8) and/or 2554(6) of the Education Law, a board of education of a union free, central, central high school, or city school district other than the city school district of the City of New York shall submit the following to the commissioner:

(1) an explanation of the need for the capital project in light of the district's long-range facilities plan, submitted pursuant to paragraph (b)(2) of this section and updated to reflect the need for the proposed capital project; and

(2) certification:

(i) that the lease is for a term of at least 10 years subsequent to the general contract for such construction, reconstruction, rehabilitation or improvement; and

(ii) that where required by law, approval of the voters of the school district which will become the lessee has been obtained;

(3) for capital projects proposed in a school building leased from another school district, plans and specifications in accordance with section 155.2 of this Part;

(4) for capital projects proposed in a school building leased from a person, partnership or corporation other than another school district, submit for review for educational adequacy and conformance with the requirements of this Part, plans and specifications proposed to be submitted to the local building authority for a building permit.

(d) Approval of leases in the City of New York. To obtain prior approval of a lease pursuant to section 2554(6) of the Education Law, the board of education of the city school district of the City of New York shall submit the following to the commissioner:

(1) the proposed lease, which shall be an annual lease, multi-year lease or an amendment or extension thereof, and shall include the following information:

(i) the complete legal names and addresses of all parties and the address of the leased property;

(ii) the lease term; and

(iii) the amount, frequency and due dates for lease payments, including the total of payments for the duration of the lease term;

(2) to show need, a copy of the district's current five year facilities plan, or other long- range facilities plan as applicable, that is consistent with section 155.1 of this Part, and includes the proposed lease as well as all other planned acquisitions, disposals and leasing of buildings or school purposes during the period of the plan;

(3) to show that the proposed leased facility meets all applicable standards for the health, safety and comfort of the occupants, is educationally adequate and where the facility is located on its site, submit:

(i) a request for approval of use on the form prescribed by the commissioner;

(ii) a copy of current certificate of occupancy issued by the local code enforcement agency;

(iii) a site plan; and

(iv) floor plan(s);

(4) certification by an attorney representing the board of education that:

(i) the board has taken proper procedural steps to authorize the lease;

(ii) the initial term of the lease, not including any renewals thereof, does not exceed the period of probable usefulness that would be prescribed for such building or facilities by the Local Finance Law if the building or facility were owned by a school district;

(iii) voter approval has been obtained where required by law:

(a) for a lease longer than five years;

(b) in the case of renewals; and

(c) for any capital project to be undertaken in a leased building or facility;

(iv) the lease does not include an option to buy;

(v) the lease includes a provision that the lease shall be void and unenforceable if entered into in violation of section 801 of the General Municipal Law or section 410 of the Education Law; and

(vi) the lease payments or other annual payment under the lease do not include the costs of heat, electricity, water or other utilities or the costs of operation or maintenance of the leased facility;

(5) for the district seeking aid for lease expense pursuant to subdivision 6 of section 3602 of the Education Law, a certification by the superintendent of schools that:

(i) the leased school or facility meets requirements for access by individuals with disabilities to both facilities and programs by complying with section 200.2 of this Title and, when the purpose of the leased space includes special education programs and services, the leased space is consistent with the district's comprehensive long-range plan for the allocation of instructional space to meet the current and future special education program and service needs and to serve students with disabilities in settings with nondisabled peers; and

(ii) leased space will be used to house programs for pupils in grades preK-12, who are enrolled in any prekindergarten or nursery school program offered by the school district pursuant to section 1712, 2514 or 2555 of the Education Law or who are over five and under 21 years of age and who have not received a high school diploma, with minimal associated administrative and support service space.

(e) Approval of capital projects in New York City. To obtain prior approval of a capital project in a leased building or facility during the term of the lease pursuant to sections 403-b(1)(b) and 2554(6) of the Education Law, the board of education of the City of New York shall submit the following to the commissioner:

(1) an explanation of the need for the capital project in light of the district's long-range facilities plan, submitted pursuant to paragraph (d)(2) of this section and updated to reflect the need for the proposed capital project;

(2) provide certification:

(i) that the lease is for a term of at least 10 years subsequent to the general contract for such construction, reconstruction, rehabilitation or improvement;

(3) for capital projects proposed in a school building leased from another school district, submit plans and specifications in accordance with section 155.2 of this Part; or

(4) for capital projects proposed in a school building leased from a person, partnership or corporation other than another school district, submit for review for educational adequacy and conformance with the requirements of this Part, plans and specifications proposed to be submitted to the local building authority for a building permit.

(f) Following the completion of a capital project, submitted to the commissioner pursuant to subdivision (c) or (e) of this section, a new certificate of occupancy issued by the local building authority shall be submitted together with school district certification that the work was done in accordance with submitted plans and specifications. Where the work deviates from the submitted plans and specifications, as-built drawings shall be submitted for review.

(g) Apportionment of building aid under subdivision 6 of section 3602 of the Education Law for leases approved by the commissioner pursuant to section 403-b, subdivision 8 of section 2503, or subdivision 6 of section 2554 of the Education Law shall be apportioned pursuant to provisions of this subdivision.

(1) Any apportionment for an approved lease with a term of 15 years or more shall be based on the maximum cost allowance determined in accordance with the provisions of subdivision 6 of section 3602 of the Education Law. Such apportionment shall be paid on each annual lease payment until the total of such annual lease payments equals the maximum cost allowance. No apportionment shall be paid for annual lease payments made after the sum of such annual lease payments exceeds the maximum cost allowance.

(2) Any apportionment for an approved lease with a term of less than 15 years shall be based on the product of the maximum cost allowance determined in accordance with the provisions of subdivision 6 of section 3602 of the Education Law and the quotient of the number of years in the term of the lease divided by 15. Such apportionment shall be paid on each annual lease payment until the total of such annual lease payments equals such product. No apportionment shall be paid for annual lease payments after the sum of such annual payments exceeds such product.

(3) The lease payment schedule shall be structured so that no annual payment is less than 50 percent of any prior annual payment.

 

Section 155.13 Apportionment for asbestos projects     Disclaimer

Funds available to public school districts, specifically for the purpose of building projects designed to eliminate asbestos hazards from school facilities, shall be apportioned pursuant to provisions of this section and in accordance with article 9-A of the Education Law, except that school asbestos hazard abatement grants authorized by section 437 of the Education Law, shall be apportioned pursuant to section 155.12 of this Part.

(a) Such funds shall be available for projects for which an application, in form and substance as required by the commissioner, is submitted to the Education Department by December 1st of the school year for which such funds are appropriated. Each such application shall include, but shall not be limited to, the following assurances by the board of education of the public school district:

(1) that an imminent health hazard due to the presence of asbestos, as such terms are defined in section 432 of the Education Law, exists;

(2) that the project is designed to remove, contain or encapsulate asbestos;

(3) that, contingent upon approval of the project pursuant to this section, a building project application, including plans and specifications, will be submitted to the Education Department no later than April 1st of the school year for which such funds are appropriated;

(4) that, contingent upon approval of the project pursuant to this section, construction contracts for the project will be signed by the board of education no later than May 1st of the school year for which such funds are appropriated;

(5) that, contingent upon approval of the project pursuant to this section, an interim expenditure report, in a form prescribed by the commissioner, will be submitted to the Education Department upon signing of the construction contract; and

(6) that local funds required to successfully complete the project will be available in a timely manner or, where applicable, that a proposition authorizing the expenditure of funds for such purpose will be submitted to the voters of the school district.

(b) All projects shall meet all requirements of subdivision (a) of this section.

(c) All projects shall meet all requirements of building projects required by section 408 of the Education Law and this Part.

(d) The amount of each such apportionment shall be for the same percentage of total project costs. Such percentage will be determined by the commissioner; provided, however, that such percentage shall not be less than 40 per centum nor more than 50 per centum of the total project cost.

(e) The priority of approval of all projects which meet the requirements of this section shall be based upon the building aid ratio of each school district selected for purposes of building aid in the current year. Projects from districts with the highest aid ratios shall be approved first, and subsequent projects shall be approved according to descending order of such aid ratios. In the case of projects from districts with identical aid ratios, the commissioner will, to the extent that funds are available, approve projects for the districts of greatest need as determined by the commissioner.

(f) Payment of the apportionment shall be made upon certification by the district that a construction contract has been signed for the project. In no case shall an apportionment be paid for projects in which the contract was signed after May 1st of the school year for which such funds are appropriated, except as provided in subdivision (j) of this section.

(g) Each project approved for an apportionment pursuant to the provisions of this section shall also be eligible to receive building aid, pursuant to the provisions of subdivision 6 of section 3602 of Education Law, on the balance of total approved expenditures not aided pursuant to this section.

(h) Not more than 40 per centum of the appropriation made available for purposes of this section shall be awarded for projects of the board of education of the city school district of the City of New York. All such projects shall comply with the provisions of this section.

(i) Nothing in this section shall prevent an award of an apportionment pursuant to this section being made for projects already approved by the commissioner, provided those projects otherwise meet the requirements of this section. An application is not required for any such project previously approved.

(j) Notwithstanding the provisions of subdivisions (a) through (i) of this section, upon a finding by the commissioner that all funds available for the purposes specified in this section have not been obligated by contract by May 1st of the school year for which such funds are appropriated, additional awards may be approved at the discretion of the commissioner prior to August 31st of the succeeding school year. Projects for which such additional awards may be approved shall be for the elimination of imminent health hazards caused by the presence of asbestos.

(k) No funds shall be apportioned pursuant to this section unless the school district has authorized the local funds necessary to successfully complete the project.

 

Section 155.14 Leasing of unneeded board of cooperative educational services facilities     Disclaimer

(a) As used in this section, the term unneeded board of cooperative educational services facilities shall mean any land, classrooms, offices or buildings, or portions thereof, owned by a board of cooperative educational services which such board has determined will not be needed during the term of the proposed lease.

(b) Pursuant to section 1950(4)(p) of the Education Law, a board of cooperative educational services may lease unneeded facilities to public or private agencies, individuals, partnerships or corporations with the approval of the commissioner.

(c) In order to obtain approval by the Commissioner of Education to lease unneeded facilities:

(1) the board of cooperative educational services shall file three executed copies of the lease agreement with the commissioner at least 30 days prior to the beginning date of the proposed lease period. Such lease agreement shall include, but need not be limited to:

(i) the amount of rental, which shall not be less than fair market value as determined by the board of cooperative educational services;

(ii) the term of the lease, which shall not exceed five years, and any provisions relating to the renewal of such lease;

(iii) a statement of the operation and maintenance services, if any, to be provided by the board of cooperative educational services for the facility during the term of the lease;

(iv) a requirement that any improvements to the leased property by the tenant be approved by the board of cooperative educational services;

(v) indemnification of the board of cooperative educational services against loss or liability as a result of a tenant's occupancy of a leased facility;

(vi) a statement that such lease agreement will not become effective until approved by the Commissioner of Education; and

(vii) any other clauses or appendices which the Commissioner of Education deems to be in the best interest of the board of cooperative educational services.

(2) such lease agreement shall be accompanied by a copy of the resolution of the board of cooperative educational services authorizing such lease, stating the purpose for which the tenant intends to use the leased facility, and providing:

(i) that the board of cooperative educational services has made a study and does not anticipate a need for the leased property during the term of the proposed lease;

(ii) that the annual amount of rental payment is not less than the fair market rental value as determined by such board of cooperative educational services; and

(iii) that such lease is in the best educational and financial interest of the board.

(d) Income received by the board of cooperative educational services from the lease of unneeded facilities shall be included as revenue in such board's administrative budget.

(e) Nothing contained in this section shall prevent the board of cooperative educational services from:

(1) entering into a lease agreement which provides for the cancellation of such lease by such board; and

(2) including, in the lease agreement, requirements concerning the condition of the leased facilities at the conclusion of the lease.

(f) The commissioner may approve a lease of unneeded board of cooperative educational services facilities which does not satisfy all of the provisions of subdivision (c) of this section upon a finding that the conditions of such lease are substantially equivalent to such provisions.

 

Section 155.15 Leases and contracts for the use of property by boards of cooperative educational services. [Education Law, § 1950]Education Law, § 1950     Disclaimer

(a) Definitions. As used in this section:

(1) Property means land, classrooms, offices, buildings and other specialized facilities.

(2) Original lease means the initial agreement between the board and a landlord for the use of real property.

(3) Annual lease means a lease of real property, the term of which is no greater than one school year, which terminates no later than June 30th.

(4) Specialized facilities means those facilities defined in section 1950(4)(p)(a)(4) of the Education Law.

(5) Contract means an agreement entered into by the board for the use of personal property constructed, altered or improved for the educational program of administrative purposes of the board.

(b) With the prior approval of the commissioner, a board of cooperative educational services may enter into either:

(1) annual or multi-year leases and amendments or extensions thereto; or

(2) contracts for the use of personal property and amendments or extensions thereto.

(c) Leases. In order to obtain the approval of the commissioner, any original lease shall meet the following conditions:

(1) Any property leased for the educational program purposes of the board shall be in compliance with the requirements of section 155.4 of this Part.

(2) Any alterations or improvements made under a lease shall satisfy the provisions of section 155.2 of this Part.

(3) Any property leased for the special education program purposes of the board must first be approved by the commissioner, on a form prescribed by the commissioner, that ensures that the proposed lease is consistent with the approved special education space requirements plan developed pursuant to section 200.2(g) of this Title.

(4) The lease shall contain the following information:

(i) the complete legal names and addresses of all parties and of the leased property;

(ii) the lease term;

(iii) the amount, frequency and due dates for lease payments;

(iv) the charge basis, whether for all or part of the property and whether per room, per square foot or other basis;

(v) a description of the property and its intended use;

(vi) a list of any services to be furnished by the landlord, including an agreement as to which party will pay utility costs and assessments; and

(vii) signatures--all leases shall be submitted in executed form, properly dated and signed by agents authorized to act for the landlord, the board and any other party.

(5) Any appendices, exhibits, attachments or other supporting documents shall be attached to the lease when submitted for approval. The board shall submit such information as is necessary to enable the commissioner to determine that the lease is in the best educational and financial interests of the board.

(6) Under any multi-year lease, the board shall furnish estimates as to its annual cost of operating the leased property.

(7) Provided that appropriate documentation accompanies the submission of the lease for commissioner's approval, all of the following may be permitted in multi-year leases of property:

(i) escalation clauses;

(ii) renewal options;

(iii) purchase options;

(iv) assignment of rent to third parties;

(v) subleasing to others; and

(vi) using a leased site as the location for relocatable facilities.

(8) The certification of an attorney-at-law shall be required on all multi-year leases, all amendments or extensions thereto, and all annual leases except those with boards of education for portions of buildings to be used for classroom or administrative purposes. Such certification shall accompany the lease when submitted for approval and shall state that the lease and all relevant documents have been examined by the attorney and that:

(i) the attorney is attorney for the board or has been hired as attorney for the purpose of reviewing the lease and any related legal documents and for preparing the certification;

(ii) the board has taken proper procedural steps to authorize the lease and any changes thereto;

(iii) a determination has been made as to whether the lease is subordinate to any existing or future mortgages or the subject of any pending litigation;

(iv) all of the provisions of the lease required or authorized by this section have been examined and conform with Education Law and Regulations of the Commissioner of Education; and

(v) the lease is valid and legally binding under general principles of the Real Property Law.

(d) Contracts. In order to obtain the approval of the commissioner, any contract shall meet the following conditions:

(1) Any alterations or improvements involving construction work under the contract shall satisfy the provisions of section 155.2 of this Part.

(2) Whenever a board of cooperative educational services contracts to use personal property for the educational program purposes of the board, such property shall be in compliance with the requirements of section 155.4 of this Part.

(3) No contract shall be approved which contains any provision that personal property, such as a relocatable structure, constructed or situated on land owned or leased by the board shall revert to the board if abandoned and not removed within a specified time after the termination of the contract.

(4) The contract shall contain the following information:

(i) the complete legal names and addresses of all parties and of the personal property;

(ii) the term of the contract;

(iii) the amount, frequency and due dates of contract payments;

(iv) the charge basis, whether for all or part of the property and whether per room, per square foot or other basis;

(v) a description of the property and its intended use;

(vi) a list of any services to be furnished by the owner of the personal property, including an agreement as to which party will pay utility costs and assessments; and

(vii) signatures--all contracts shall be submitted in executed form, properly dated and signed by agents authorized to act for the contractor, the board and any other party.

(5) Provided appropriate documentation accompanies the submission of the contract for the commissioner's approval, all of the following may be permitted in multi-year contracts:

(i) escalation clauses;

(ii) renewal options;

(iii) purchase options; and

(iv) assignment of use payments to third parties.

(6) Such contracts when submitted for commissioner's approval shall be accompanied by the certification of any attorney-at-law that:

(i) the attorney is attorney for the board or has been hired as attorney for the purpose of reviewing the contract, any related legal documents, and for preparing the certification;

(ii) the board has taken proper procedural steps to authorize the contract;

(iii) if construction is to be done on leased property, the board's lease permits same;

(iv) the terms of the construction contract are consistent with those of any preexisting lease, amendment or extension thereto covering said property; and

(v) in the opinion of the attorney, the contract is valid and legally binding.

(e) Submission of leases and contracts.

(1) All annual leases with boards of education for portions of buildings to be used for classroom or administrative purposes shall be submitted for approval no less than 30 days in advance of the effective date of the lease.

(2) Annual leases requiring certification of an attorney, all multi-year leases and any amendments or extensions thereto, and all contracts shall be submitted for approval no less than 60 days in advance of the effective date of the lease or contract.

(f) In the approval process, the commissioner may require additional supporting detail. Approval may be granted for a variance from any of the specific requirements of this section upon a finding by the commissioner that the requirements of this section have been substantially met.

 

Section 155.16 School asbestos hazard grant program     Disclaimer

School asbestos hazard grants shall be awarded in accordance with the provisions of section 437 of the Education Law, and this section.

(a) Public school districts, boards of cooperative educational services and those nonpublic schools which provide instruction substantially equivalent to that provided in the public schools may submit grant applications for the approval of the commissioner.

(b) Grant applications shall be in the form prescribed by the commissioner, and shall be filed with the commissioner no later than December 1st of the school year in which the grant is to be awarded. Such application shall include the following assurances by the governing body of the school district, BOCES or nonpublic school applying for a school asbestos hazard grant:

(1) that an imminent hazard to health due to the presence of asbestos, as such terms are defined in section 432 of the Education Law, exists;

(2) that grant funds received will be used exclusively for the abatement of asbestos hazards;

(3) for school district and BOCES applicants only, that, contingent upon approval of the grant application pursuant to this section, a building project application, including plans and specifications, will be submitted to the Education Department no later than April 1st of the school year in which the grant is to be awarded;

(4) for nonpublic school applicants only, that, contingent upon approval of the grant application pursuant to this section, copies of building permits issued for the project by the appropriate authority, or equivalent documentation satisfactory to the commissioner, will be submitted to the Education Department no later than April 1st of the school year in which the grant is to be awarded;

(5) that contingent upon approval of the grant application pursuant to this section, construction contracts for the project will be executed on behalf of the governing body of the applicant no later than May 1st of the school year in which the grant is to be awarded;

(6) that contingent upon approval of the grant application pursuant to this section, all reports required pursuant to subdivision (f) of this section will be submitted to the Education Department in a timely manner; and

(7) that the local funds required to successfully complete the project will be available in a timely manner, or, where applicable, that a proposition authorizing the expenditure of funds for such purpose will be submitted to the voters of the school district.

(c) The commissioner will rank all grant applications according to the degree of imminent hazard to health presented by the asbestos materials, using an exposure assessment scale. The exposure assessment scale shall be based on the nature and magnitude of the existing and potential hazards presented by the asbestos materials, and shall take into account the following factors:

(1) the nature and condition of the asbestos material, including the degree of friability and asbestos content;

(2) the extent of damage to the asbestos material, including water damage;

(3) the exposed surface area;

(4) the accessibility of the asbestos material;

(5) the degree of activity and movement of the material; and

(6) the degree of exposure to an air plenum or direct air stream.

(d) The priority of approval of all grant applications which meet the requirements of this section shall be based upon their ranking on the exposure assessment scale as established by the commissioner pursuant to subdivision (c) of this section. Grant applications which receive the highest ranking will be approved first, and, subject to the availability of funds, additional applications will be approved in the descending order of their ranking on the exposure assessment scale. In the event that two or more applications have identical rankings on the exposure assessment scale and sufficient funds are not available for all such applications, the commissioner may, to the extent that funds are available, approve such applications or combination of applications as will, in the judgment of the commissioner, result in the abatement of an imminent hazard to the health of the greatest number of persons.

(e) Grants shall be awarded for amounts of 60 percent of approved costs. Costs eligible for approval shall include costs associated with removal, encapsulation or containment of asbestos hazards and other costs incidental to such abatement procedures, including but not limited to the cost of bulk sample and air testing, architectural, engineering and other consultant fees, work site preparation costs, and worker protection costs.

(f) Grant recipient shall submit such reports as are required by the Commissioner of Education, including but not limited to a building project data form SA-139 and a final building project report. The final building project report shall be in a form prescribed by the commissioner and shall be submitted no later than August 1st of the school year next following the school year in which the grant application is approved.

(g) Payment of grants shall be pursuant to the following schedule:

(1) sixty percent of the grant amount will be paid to public school districts and BOCES upon approval by the Commissioner of Education of the final plans and specifications for abatement projects for which grants were awarded;

(2) sixty percent of the grant amount will be paid to nonpublic schools upon receipt by the Education Department of copies of building permits issued for the project by the appropriate authority, or of equivalent documentation satisfactory to the commissioner;

(3) twenty-five percent of the grant amount will be paid upon the receipt and approval by the State Education Department of the building project data form SA-139; and

(4) fifteen percent of the grant amount will be paid upon receipt by the State Education Department of the final building project report form.

(h) Approval may be granted for a variance from any of the requirements of subdivisions (b) through (g) of this section, upon a finding that the requirements of this section will be substantially met.

 

Section 155.17 School safety plans      Disclaimer

(a) Development of school emergency management plans. Each board of education of a school district, other than a school district in a city having a population of more than one million inhabitants, and each board of cooperative educational services shall prepare by October 1, 1990, and shall update by October 1st of each succeeding school year, a school emergency management plan as prescribed in this section to insure the safety and health of children and staff and to insure integration and coordination with similar emergency planning at the municipal, county and State levels, which plan, and any amendments thereto, shall remain in effect until the adoption of a comprehensive multi-hazard, district-wide school safety plan and building-level school plans pursuant to subdivisions (b) and (e) of this section, at which time it shall be superseded by such plans. A copy of the plan shall be available in each school district for inspection by the public and shall be made available to the commissioner upon request.

(b) Development of school safety plans. Every board of education of a school district, every board of cooperative educational services and county vocational education and extension board and the chancellor of the City School District of the City of New York shall adopt by July 1, 2001, and shall update by July 1st of each succeeding year, a district-wide school safety plan and building-level school safety plans regarding crisis intervention and emergency response and management, provided that in the City School District of the City of New York, such plans shall be adopted by the chancellor of the city school district. Such plans shall be developed by a district-wide school safety team and a building-level school safety team, as such terms are defined in subdivision (c) of this section, and shall be in a form developed by the commissioner in consultation with the Division of Criminal Justice Services, the superintendent of the State Police and any other appropriate State agencies. A school district having only one school building shall develop a single building-level school safety plan, which shall also fulfill all requirements for development of a district-wide plan to insure the safety and health of children and staff and to insure integration and coordination with similar emergency planning at the municipal, county and State levels. Each plan shall be reviewed by the appropriate school safety team on at least an annual basis, and updated as needed.

(c) Definitions. As used in this section:

(1) Educational agencies means public and nonpublic elementary and secondary schools, public and private nursery schools, approved private schools for the education of students with disabilities as defined in section 200.1(d) of this Title, and public and private schools for the education of preschool children with disabilities.

(2) Superintendent means a superintendent of schools or a district superintendent of schools, as appropriate.

(3) Disaster means occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or manmade causes, such as fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, windstorm, wave action, epidemic, air contamination, drought, explosion, water contamination, chemical accident, war or civil disturbance.

(4) Emergency means a situation, including but not limited to a disaster, that requires immediate action, occurs unpredictably, and poses a threat of injury or loss of life to students or school personnel or of severe damage to school property.

(5) Emergency services organization means a public or private agency, organization or group other than a governmental agency, which provides police, fire, medical, ambulance, rescue, housing or other services for the relief of human suffering, injury or loss of life or property as a result of an emergency.

(6) School cancellation means a determination by school officials that a school or schools should not be in session for one or more school days due to an emergency.

(7) Early dismissal means returning students to their homes or other appropriate locations before the end of the school day.

(8) Evacuation means moving students for their protection from a school building to a predetermined location in response to an emergency.

(9) Sheltering means keeping students in school buildings and providing them with shelter when it is deemed safer for students to remain inside rather than to return home or be evacuated.

(10) Building-level school safety plan means a building-specific school emergency response plan that addresses crisis intervention, emergency response and management at the building level and has the contents prescribed in paragraph (e)(2) of this section.

(11) Building-level school safety team means a building-specific team appointed by the building principal, in accordance with regulations or guidelines prescribed by the board of education, the chancellor in the case of New York City, or other governing body. The building- level team shall include, but not be limited to, representatives of teacher, administrator, and parent organizations, school safety personnel, other school personnel, community members, local law enforcement officials, local ambulance or other emergency response agencies, and any other representatives the school board, chancellor or other governing body deems appropriate.

(12) District-wide school safety plan means a comprehensive, multi-hazard school safety plan that covers all school buildings of the school district, BOCES or county vocational education and extension board, that addresses crisis intervention, emergency response and management at the district level and has the contents prescribed in paragraph (e)(1) of this section.

(13) District-wide school safety team means a district-wide team appointed by the board of education, the chancellor in the case of New York City, or other governing board. The district- wide team shall include, but not be limited to, representatives of the school board, student, teacher, administrator, and parent organizations, school safety personnel and other school personnel.

(14) Emergency response team means a building-specific team designated by the building- level school safety team that includes appropriate school personnel, local law enforcement officials, and representatives from local, regional and/or State emergency response agencies and assists the school community in responding to a serious violent incident or emergency. In a school district in a city having a population of more than one million inhabitants, such emergency response team may be created on the district-level with building-level participation, and such district shall not be required to establish a unique team for each of its schools.

(15) Post-incident response team means a building-specific team designated by the building-level school safety team that includes appropriate school personnel, medical personnel, mental health counselors and others who can assist the school community in coping with the aftermath of a serious violent incident or emergency. In a school district in a city having a population of more than one million inhabitants, such post-incident response team may be created on the district-level with building-level participation, and such district shall not be required to establish a unique team for each of its schools.

(16) School safety plan means a district-wide school safety plan or a building-level school safety plan.

(17) Serious violent incident means an incident of violent criminal conduct that is, or appears to be, life threatening and warrants the evacuation of students and/or staff because of an imminent threat to their safety or health, including, but not limited to: riot, hostage-taking kidnapping and/or the use or threatened use of a firearm, explosive, bomb, incendiary device, chemical or biological weapon, knife or other dangerous instrument capable of causing death or serious injury.

(d) School emergency management plans. A school emergency management plan shall be designed to prevent or minimize the effects of emergencies and to coordinate the use of resources, and shall include, but not be limited to:

(1) the identification of sites of potential emergency;

(2) the identification of appropriate responses to emergencies;

(3) a description of the arrangements for obtaining assistance during emergencies from emergency services organizations and local governmental agencies;

(4) a description of procedures to coordinate the use of school district resources and manpower during emergencies, including identification of the officials authorized to make decisions and of the staff members assigned to provide assistance during emergencies;

(5) the identification of district resources which may be available for use during an emergency;

(6) in the case of a school district, a system for informing all educational agencies within such school district of an emergency;

(7) a description of plans for taking the following actions in response to an emergency where appropriate:

(i) school cancellation;

(ii) early dismissal;

(iii) evacuation;

(iv) sheltering; and

(8) in the case of a school district, certain information about each educational agency located in the school district, including information on school population, number of staff, transportation needs and the business and home telephone numbers of key officials of each such agency; and

(9) the procedures for obtaining advice and assistance from local government officials, including the county or city officials responsible for implementation of article 2-B of the Executive Law.

(e) School safety plans. District-wide school safety plans and building-level school safety plans shall be designed to prevent or minimize the effects of serious violent incidents and emergencies and to facilitate the coordination of schools and school districts with local and county resources in the event of such incidents or emergencies.

(1) District-wide school safety plans. A district-wide school safety plan shall be developed by the district-wide school safety team and shall include, but not be limited to:

(i) the identification of sites of potential emergency;

(ii) except in a school district in a city having a population of more than one million inhabitants, a description of plans for taking the following actions in response to an emergency where appropriate:

(a) school cancellation;

(b) early dismissal;

(c) evacuation;

(d) sheltering;

(iii) policies and procedures for responding to implied or direct threats of violence by students, teachers, other school personnel and visitors to the school;

(iv) policies and procedures for responding to acts of violence by students, teachers, other school personnel and visitors to the school, including consideration of zero-tolerance policies for school violence;

(v) appropriate prevention and intervention strategies, such as:

(a) collaborative arrangements with State and local law enforcement officials, designed to ensure that school safety officers and other security personnel are adequately trained, including being trained to de-escalate potentially violent situations, and are effectively and fairly recruited;

(b) nonviolent conflict resolution training programs;

(c) peer mediation programs and youth courts; and

(d) extended day and other school safety programs;

(vi) policies and procedures for contacting appropriate law enforcement officials in the event of a violent incident;

(vii) except in a school district in a city having a population of more than one million inhabitants, a description of the arrangements for obtaining assistance during emergencies from emergency services organizations and local governmental agencies;

(viii) except in a school district in a city having a population of more than one million inhabitants, the procedures for obtaining advice and assistance from local government officials, including the county or city officials responsible for implementation of article 2-B of the Executive Law;

(ix) except in a school district in a city having a population of more than one million inhabitants, the identification of district resources which may be available for use during an emergency;

(x) except in a school district in a city having a population of more than one million inhabitants, a description of procedures to coordinate the use of school district resources and manpower during emergencies, including identification of the officials authorized to make decisions and of the staff members assigned to provide assistance during emergencies;

(xi) policies and procedures for contacting parents, guardians or persons in parental relation to the students of the district in the event of a violent incident or an early dismissal;

(xii) policies and procedures relating to school building security, including, where appropriate, the use of school safety officers and/or security devices or procedures;

(xiii) policies and procedures for the dissemination of informative materials regarding the early detection of potentially violent behaviors, including but not limited to the identification of family, community and environmental factors to teachers, administrators, parents and other persons in parental relation to students of the school district or board, students and other persons deemed appropriate to receive such information;

(xiv) policies and procedures for annual multi-hazard school safety training for staff and students;

(xv) procedures for review and the conduct of drills and other exercises to test components of the emergency response plan, including the use of tabletop exercises, in coordination with local and county emergency responders and preparedness officials;

(xvi) the identification of appropriate responses to emergencies, including protocols for responding to bomb threats, hostage-takings, intrusions and kidnappings;

(xvii) strategies for improving communication among students and between students and staff and reporting of potentially violent incidents, such as the establishment of youth- run programs, peer mediation, conflict resolution, creating a forum or designating a mentor for students concerned with bullying or violence and establishing anonymous reporting mechanisms for school violence;

(xviii) a description of the duties of hall monitors and any other school safety personnel, the training required of all personnel acting in a school security capacity, and the hiring and screening process for all personnel acting in a school security capacity;

(xix) in the case of a school district, except in a school district in a city having more than one million inhabitants, a system for informing all educational agencies within such school district of a disaster; and

(xx) in the case of a school district, except in a school district in a city having more than one million inhabitants, certain information about each educational agency located in the school district, including information on school population, number of staff, transportation needs and the business and home telephone numbers of key officials of each such agency.

(2) School emergency response plan. A school emergency response plan shall be developed by the building-level school safety team and shall include the following elements:

(i) policies and procedures for the safe evacuation of students, teachers, other school personnel and visitors to the school in the event of a serious violent incident or other emergency which may occur before, during or after school hours, which shall include evacuation routes and shelter sites and procedures for addressing medical needs, transportation and emergency notification to persons in parental relation to a student;

(ii) designation of an emergency response team, other appropriate incident response teams, and a post-incident response team;

(iii) procedures for assuring that crisis response, fire and law enforcement officials have access to floor plans, blueprints, schematics or other maps of the school interior, school grounds and road maps of the immediate surrounding area;

(iv) establishment of internal and external communication systems in emergencies;

(v) definition of the chain of command in a manner consistent with the National Interagency Incident Management System (NIMS)/Incident Command System (ICS);

(vi) coordination of the school safety plan with the statewide plan for disaster mental health services to assure that the school has access to Federal, State and local mental health resources in the event of a violent incident;

(vii) procedures for an annual review and the conduct of drills and other exercises to test components of the emergency response plan, including the use of tabletop exercises, in coordination with local and county emergency responders and preparedness officials; and

(viii) policies and procedures for securing and restricting access to the crime scene in order to preserve evidence in cases of violent crimes on school property.

(3) Each board of education, chancellor or other governing body shall make each district- wide and building-level school safety plan available for public comment at least 30 days prior to its adoption, provided that only a summary of each building-level emergency response plan shall be made available for public comment. Such district-wide and building-level plans may be adopted by the school board only after at least one public hearing that provides for the participation of school personnel, parents, students and any other interested parties. Each district shall file a copy of its district-wide comprehensive safety plan with the commissioner and all amendments to such plan shall be filed with the commissioner no later than 30 days after their adoption. A copy of each building-level safety plan and any amendments thereto, shall be filed with the appropriate local law enforcement agency and with the State Police within 30 days of its adoption. Building-level emergency response plans shall be confidential and shall not be subject to disclosure under article six of the Public Officers Law or any other provision of law.

(4) The commissioner may grant a waiver of the requirements of Education Law section 2801-a, this subdivision and subdivision (b) of this section to any school district or board of cooperative services or county vocational education and extension board for a period of up to two years from July 24, 2000 upon a finding by the commissioner that such district had adopted a comprehensive school safety plan on or before November 1, 2000 which is in substantial compliance with the requirements of Education Law section 2801-a.

(f) Use of school property. Each board of education and board of cooperative educational services shall cooperate with appropriate State, county and city agencies in developing agreements for the use of school-owned facilities and vehicles during a disaster. School districts and boards of cooperative educational services are required to relinquish to the appropriate State or county agencies the control and use of school transportation vehicles and facilities in accordance with county emergency preparedness plans or directives.

(g) Communication liaisons.

(1) Except in a school district in a city having a population of more than one million inhabitants, each district superintendent, during a local or State emergency, shall act as the chief communication liaison for all educational agencies within the supervisory district territorial limits.

(2) The superintendent of schools in the Cities of Buffalo, Rochester, Syracuse and Yonkers, during a local or State emergency, shall act as the chief communication liaison for all educational agencies located within the city district.

(h) Reporting. Each superintendent shall notify the commissioner as soon as possible whenever the emergency plan or building-level school safety plan is activated and results in the closing of a school building in the district, and shall provide such information as the commissioner may require. School districts within a supervisory district shall provide such notification through the district superintendent, who shall be responsible for notifying the commissioner. Such information need not be provided for routine snow emergency days.

(i) Instruction. Each public school superintendent and each chief school administrator of an educational agency other than a public school shall take action to provide written information, by October 1st of each school year, to all students and staff about emergency procedures.

(j) Drills. Each school district and board of cooperative educational services shall, at least once every school year, and where possible in cooperation with local county emergency preparedness plan officials, conduct one test of its emergency plan or its emergency response procedures under each of its building-level school safety plans, including sheltering or early dismissal, at a time not to occur more than 15 minutes earlier than the normal dismissal time.

(1) Parents or persons in parental relation shall be notified at least one week prior to the drill.

(2) Such drills shall test the usefulness of the communications and transportation system during emergencies.

(3) The provisions of section 175.5(a) of this Title regarding the length of school day for State aid purposes shall not apply to school days in which less than the minimum number of hours is conducted because of an early dismissal pursuant to this subdivision.

(k) Reports by educational agencies. Except in a school district in a city having a population of more than one million inhabitants, the chief executive officer of each educational agency located within a public school district shall provide to the superintendent of schools information about school population, number of staff, transportation needs and the business and home telephone numbers of key officials of such educational agencies.

(l) Nothing contained in subdivision (a) or (c) of this section shall prevent an educational agency from using, in part or in total, an emergency management plan previously developed in cooperation with a county or other municipality as the emergency management plan required in this section until the adoption of school safety plans as required by subdivision (b) of this section; provided, however, that all applicable requirements of this section shall be met.

(m) Commissioner of Education. The Commissioner of Education or his or her designee may order emergency response actions by individual school districts in the event that the local officials are unable or unwilling to take action deemed to be appropriate by State and/or county emergency personnel in accordance with county or State emergency preparedness plans or directives.


Section 155.18 Aid for asbestos inspections    Disclaimer

(a) Purpose. Each school district, board of cooperative educational services (BOCES), and nonpublic school as defined in this section, may submit a claim for aid for approved expenses for asbestos inspections incurred on or after January 1, 1988 and prior to July 1, 1989, pursuant to the provisions of sections 15 and 16 of chapter 262 of the Laws of 1988.

(b) Definitions. For the purpose of this section:

(1) Nonpublic school shall mean a nonprofit, nonpublic elementary or secondary school which, by September 1, 1989, has submitted the claim form required pursuant to this section, and which establishes to the satisfaction of the commissioner that it provides instruction to pupils in accordance with Education Law, section 3204.

(2) Approved expenditures for asbestos inspections shall mean cash expenditures approved by the commissioner for asbestos inspections and expenses related to such expenses as defined in subdivision 1 of each of sections 15 and 16 of chapter 262 of the Laws of 1988.

(3) Instructional space shall mean space in which teachers or other professional staff meet with students for purposes of providing instruction or professional services, including service- related spaces such as, but not limited to boiler rooms, hallways, means of egress, toilets, cafeterias, as approved by the commissioner; provided that such term shall not include vacant facilities, dormitories, dwellings, public libraries and other facilities for which the primary use is administrative, storage, maintenance, bus and motor vehicle storage and/or maintenance or repair.

(c) Approval of expenditures for asbestos inspections. Costs eligible for approval shall include the costs of the asbestos inspection activities described in paragraph b of subdivision 1 of each of sections 15 and 16 of chapter 262 of the Laws of 1988, provided that such activities have been completed by individuals and/or entities approved to perform such activities or services through programs approved by the Federal Environmental Protection Agency, and in the case of laboratories, also approved by the New York State Department of Health, and further provided that:

(1) such inspection activities are conducted in facilities which are owned by a school district or board of cooperative educational services; or

(2) when conducted in facilities leased by a school district or board of cooperative educational services, such inspection activities are conducted in those portions of such facilities which are used for BOCES or school district purposes as instructional space; or

(3) when conducted in facilities owned or leased by a nonpublic school, such inspection activities are conducted in those portions of such facilities which are used as instructional space.

(d) Each school district, BOCES and nonpublic school which seeks an apportionment pursuant to section 15 or 16 of chapter 262 of the Laws of 1988 shall submit a claim in a form prescribed by the commissioner no later than September 1, 1989. The commissioner shall pay aid pursuant to this section after timely receipt of properly executed claim forms, provided that no aid shall be payable prior to October 1, 1989.

 

Section 155.19 Extraordinary school capital needs program    Disclaimer

(a) Allowable expenses for repairs that may be used to calculate the apportionment of extraordinary school capital needs aid pursuant to sections 1 and 2 of chapter 64 of the Laws of 1994 shall mean expenditures recorded in the school district's special aid fund related to maintaining and repairing instructional school facilities, including expenses for minor repair and improvement activities performed to remedy existing minor maintenance deficiencies and expenses for periodic, scheduled maintenance activities intended to mitigate the need for extensive capital renovation and rehabilitation in the future. Such expenses may include heating, ventilation and air conditioning repairs, electrical system repairs, plumbing repairs, and general repairs, including, but not limited to roof, floor, wall and window repairs, including painting and patching. Allowable expenses shall not include any expenses eligible for building aid under provisions of subdivision 6 of section 3602 of the Education Law.

(b) Application for the apportionment.

(1) The city school district of New York shall submit an application for the apportionment provided pursuant to section 1 of chapter 64 of the Laws of 1994, which shall consist of the report required by subdivision (c) of such section.

(2) For school districts claiming an apportionment for the extraordinary school capital needs program pursuant to section 2 of chapter 64 of the Laws of 1994, any reports submitted to the commissioner pursuant to subdivision (d) of this section shall be deemed to be an application for the apportionment.

(c) Reports of expenditures on maintenance and repair projects required of the city school district of New York.

(1) On or before March 1, 1995, the city school district of New York shall submit to the commissioner a certified report of expenditures made through February 1, 1995, from the special aid fund of the city school district for programs funded from the extraordinary school capital needs program for New York City pursuant to section 1 of chapter 64 of the Laws of 1994. Such report shall indicate by community school district, high school district and group of special education buildings the amount of expenditures for those minor maintenance and repair projects identified for funding pursuant to subdivisions (c) and (d) of section 1 of chapter 64 of the Laws of 1994.

(2) On or before August 1, 1995, the city school district of New York shall submit to the commissioner a certified report of expenditures made through June 30, 1995, from the special aid fund of the city school district for programs funded from the extraordinary school capital needs program for New York City pursuant to section 1 of chapter 64 of the Laws of 1994. Such report shall indicate by community school district, high school district and group of special education buildings the amount of expenditures for those minor maintenance and repair projects identified for funding pursuant to subdivisions (c) and (d) of section 1 of chapter 64 of the Laws of 1994.

(3) On or before December 1, 1994, the city school district of New York shall submit to the commissioner a separate certified report for each of the 1993-94 and 1994-95 school years of all expenditures recorded to the general fund of the city school district related to maintaining and repairing instructional school facilities, including expenses for minor repairs and improvement activities performed to remedy existing minor maintenance deficiencies and expenses for periodic, scheduled maintenance activities intended to mitigate the need for extensive capital renovation and rehabilitation in the future. Based on these reports the commissioner shall identify any positive difference of such 1993-94 expenditures minus such 1994-95 expenditures, and the apportionment payable to the city school district of New York under section 1 of chapter 64 of the Laws of 1994 or under section 3602 of the Education Law and section 3609-a of the Education Law shall be reduced in any amount equal to the amount of such identified positive difference.

(d) Reports of expenditures on maintenance and repair projects required of school districts outside of New York City.

(1) On or before March 1, 1995, any school district claiming an apportionment for the extraordinary school capital needs program pursuant to section 2 of chapter 64 of the Laws of 1994 shall submit a certified report to the commissioner of the total expenditures incurred through February 1, 1995, in support of the activities of such program.

(2) On or before August 1, 1995, any school district claiming an apportionment for the extraordinary school capital needs program pursuant to section 2 of chapter 64 of the Laws of 1994 shall submit a certified report to the commissioner of the total expenditures incurred through June 30, 1995 in support of the activities of such program.

(3) On or before December 1, 1995, any school district receiving an apportionment for the extraordinary school capital needs program pursuant to section 2 of chapter 64 of the Laws of 1994 shall report to the commissioner any positive difference of the initial 1994-95 budgetary appropriation from appropriation account A1621 of the uniform system of accounts for school districts, as approved by the school district prior to July 1, 1994, minus the actual expenditures recorded to such accounts for the fiscal period ending June 30, 1995. Such report shall demonstrate to the satisfaction of the commissioner that any such positive difference does not represent the supplanting of local funds with funding provided pursuant to section 2 of chapter 64 of the Laws of 1994, or the school district shall have its apportionment under sections 3602 and 3609-a of the Education Law reduced in an amount equal to the amount of such positive difference that the commissioner determines represents supplanted funds.

 

Section 155.20 Energy performance contracts    Disclaimer

(a) The following procedures consistent with Energy Law, section 9-103(8), and Education Law, sections 305(27) and 3602(6)(i)(5)(i)(b) and (c) shall apply to energy performance contracts entered into by a school district or a board of cooperative educational services (BOCES) on or after July 1, 1998, provided that this section shall not apply to energy performance contracts for which a request for proposals was entered into prior to July 1, 1998.

(b) Definitions. For the purposes of this section:

(1) Energy performance contract shall mean an agreement for the provision of energy services, including but not limited to electricity, heating, ventilation, cooling, steam or hot water, in which a person agrees to install, maintain or manage energy systems or equipment to improve the energy efficiency of, or produce energy in connection with, a building or facility in exchange for a portion of the energy savings or revenues.

(2) Simple payback period shall mean a measure of the length of time required for the cumulative cost savings, net of cumulative future costs, from an investment in an energy conservation project to pay back the investment cost, without taking into account the time value of money, or the differential energy price escalation rate, or the State building aid payable for the project.

(3) Energy savings shall mean the positive difference between the energy and associated cost before the retrofit and its estimated cost after the retrofit of a proposed alternative building system, taking into account all types of energy effected.

(4) Cost savings shall mean the positive difference between the operation and maintenance cost before the retrofit and its established operation and maintenance cost after the retrofit.

(5) Co-generation shall mean the simultaneous production of electricity and thermal energy. Typical systems utilize natural gas engines to turn electric generators thereby producing electricity, which reduces utility costs. Waste heat captured from the natural gas combustion process can be used to produce domestic hot water, provide space heat in winter or air conditioning in summer when used in conjunction with absorption chillers.

(c) The appropriate type of projects that qualify to be completed under an energy performance contract may include, but are not limited to:

(1) replacement of lighting fixtures;

(2) installation of energy efficient boiler/furnace, heating, ventilating, air conditioning (HVAC) equipment;

(3) installation of vestibules;

(4) installation of automatic setback thermostat;

(5) energy management system;

(6) upgrade domestic hot water system;

(7) roof insulation;

(8) installation of energy efficient window/doors;

(9) co-generation; or

(10) the installation, maintenance or management of other energy systems or equipment to improve the energy efficiency of, or produce energy in connection with, a building or facility.

(d) Every energy performance contract entered into by a school district or BOCES to which this section applies and every amendment to an energy performance contract entered into on or after July 1, 1998 by a board of education or a BOCES shall be subject to approval by the Commissioner of Education and shall contain a provision that such contract shall not be executory until approval of the commissioner is obtained. In order to obtain approval by the Commissioner of Education to enter into an energy performance contract, the school district or BOCES shall:

(1) demonstrate that the project complies with all applicable provisions of section 155.2 of this Part;

(2) describe the scope and nature of the work to be performed;

(3) demonstrate that the types of projects included in the energy performance contract are appropriate in accordance with subdivision (c) of this section;

(4) provide a detailed breakdown of the energy performance savings to be derived each year and for the duration of the energy performance contract in the project summary form, which shall include:

(i) a description of each energy conservation measure included in the energy performance contract;

(ii) the cost of each energy conservation measure;

(iii) the project energy savings and cost savings;

(iv) the useful life of each energy conservation measure; and

(v) the simple payback period;

(5) state any maintenance and monitoring charges that are part of the energy performance contract in a clear and conspicuous manner separately in the contract;

(6) provide the interest rate applicable to the energy performance contract and length of borrowing. The interest rate will be compared to the U.S. Treasury rate for like terms as published in the Wall Street Journal and must be comparable;

(7) provide the following certifications:

(i) the sole trustee, the president of the board of trustees or board of education, or the president of the BOCES shall certify that in lieu of competitive bidding, the energy performance contract was procured pursuant to a request for proposal (RFP) process in accordance with the school district's or BOCES' procurement policies and procedures adopted pursuant to applicable provisions of General Municipal Law, section 104-b;

(ii) the energy performance contractor shall certify that such energy performance contractor has guaranteed recovery of contract costs from energy savings realized by the school district during the term of the energy performance contract, which shall not exceed 18 years, or the useful life of the equipment being installed, whichever is less. This certification shall be based on an analysis of energy costs and savings, which shall not include any cost savings attributable to State building aid. If a simple payback calculation is used to demonstrate compliance with the 18 year payback limitation, it shall be calculated by dividing the initial contract cost by the first year cost savings. If another analysis is used to support the certification, it should be submitted with the certification;

(iii) the energy performance contractor shall certify that measurement and verification techniques for determining cost savings will be performed in accordance with the North American Energy Measurement and Verification Protocol, March 1996 (U.S. Department of Energy, Washington, DC 20585: available at the Office of Facilities Planning, Room 1060, State Education Building Annex, Albany, NY 12234);

(iv) the energy performance contractor shall certify that any State building aid attributable to such project has been excluded in determining the cost savings and payback period under the energy performance contract; and

(v) the architect and/or engineer of record shall certify that he or she is free from financial interest in the energy performance contractor which conflicts with the proper completion of the audit and any design work associated with the energy performance contract and that full disclosure has been made to the school district and/or BOCES detailing all financial compensation received from the energy performance contractor.

(e) The administrative and technical review by the State Education Department shall include:

(1) review of project scope and its appropriateness to be done under an energy performance contract and its eligibility for building aid;

(2) review of the project's compliance with applicable provisions of section 155.2 of this Part;

(3) review of detailed breakdown of the energy savings to ensure compliance with Education Law, section 3602(6)(i)(5)(i);

(4) review of certifications by the president of the board of education, energy performance contractor and architect/engineer as specified in regulations;

(5) review of interest rate and comparison to the U.S. Treasury rate for like terms; and

(6) review of technical specifications for compliance with the Uniform Fire Prevention and Building Code, State Education Department standards and other applicable standards.

(f) Capital construction costs and associated incidental costs such as architect/engineer fees, administrative costs and feasibility costs may be eligible for building aid. Costs associated with operation and maintenance, repairs, extended warranties and service agreements are not eligible for building aid and should be separated in a clear and conspicuous manner from those eligible expenses.

 

Section 155.21 Mobile instructional unit contracts awarded through a request for proposals    Disclaimer

(a) Pursuant to the provisions of section 305(14)(a) of the Education Law, all contracts for mobile instructional units which are subject to the competitive bidding requirements of General Municipal Law shall be awarded to the lowest responsible bidder or through an evaluation of proposals submitted in response to a request for proposals by a board of education.

(b) When a board of education elects to award a contract through an evaluation of proposals in response to a request for proposals, such board of education shall evaluate each proposal from a responding contractor in accordance with the following criteria:

(1) the previous experience of the contractor in providing mobile instructional units for use by public school districts;

(2) the name of each transportation company or manufacturer in which the contractor or any of the contractor's officers has been an owner or a manager or has had a controlling interest;

(3) a description of any vehicle safety standards included in the design standards for the mobile instructional units under the control of the contractor that exceed applicable standards defined in statute or regulations;

(4) inspection records and model year of the mobile instructional units under the control of the contractor;

(5) maintenance schedules of the mobile instructional units under the control of the contractor;

(6) a financial analysis of the contractor;

(7) documentation of compliance with insurance requirements;

(8) documentation of compliance with this Part and applicable provisions of the State Uniform Fire Prevention and Building Code (19 NYCRR Part 444); and

(9) total cost of the proposal.

(c) Any public notice soliciting proposals for mobile instructional units, as well as any instructions provided to potential respondents to a request for proposals pursuant to this section, shall specify all of the criteria to be used in evaluating such proposals and shall specify the weightings that the board of education has assigned to each criterion for the purpose of evaluating proposals submitted in response to the request for proposals. For this purpose no single criterion shall be weighted in excess of 50 percent of the total weight of all of the criteria to be used.

(d) Each district awarding a contract through an evaluation of proposals shall submit such contract to the commissioner for approval pursuant to the provisions of Education Law, section 305(14), together with satisfactory evidence of the date of the request for such proposals, the forms and instructions used in making such request, the contract specifications, all proposals received, the criteria used in evaluating the proposals, the weights assigned to each criterion, the scores used to assess each category of the criteria, and such other information as the commissioner deems necessary for such approval.

(e) Proposals for contracts for mobile instructional units for the following school year shall be requested no later than June 1st.

 

Section 155.22 Qualified zone academy bonds    Disclaimer

(a) Purpose. The purpose of this section is to establish procedures, consistent with State and Federal law, for the allocation and issuance of qualified zone academy bonds as authorized by 26 USC section 1397E (United States Code, 1994 edition, supplement III, volume 3; Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402-9328; 1998 - available at the Office of Facilities Planning, Education Building Annex, Room 1060, State Education Department, Albany, New York 12234).

(b) Definitions.  As used in this section:

(1) Qualified zone academy bond (or QZAB) means a bond, as defined in 26 USC section 1397E(d)(4), the proceeds of which can be used for rehabilitating or repairing the public school facility in which a qualified zone academy is established, providing equipment for use at such academy, developing course materials for education to be provided at such academy and/or training teachers and other school personnel in such academy.

(2) Qualified zone academy means a public school, or academic program within a public school, which is established by and operated under the supervision of an eligible school district and which meets the requirements of 26 USC section 1397E(d)(4).

(3) Qualified contribution means a contribution as defined in 26 USC section 1397E(d)(2)(B), made by private entity to a qualified zone academy.

(4) Eligible school district means an eligible local education agency, as defined in 26 USC section 1397E(d)(4)(B), which meets the requirements of subdivision (d) of this section.

(5) Project or capital construction project means a project:

(i) for a qualified purpose, as defined in 26 USC section 1397E(d)(5);

(ii) that is financed through qualified zone academy bonds issued pursuant to 26 USC section 1397E; and

(iii) that has voter authorization or board authorization, as required.

(6) State limitation amount allocation means the amount of the qualified zone academy bond limitation allocated to the State pursuant to 26 USC section 1397E(e)(2).

(c) State responsibilities.

(1) Allocation. The commissioner shall determine annually the respective amounts of the State limitation amount allocation to be allocated to approved qualified zone academies within eligible school districts.

(i) Fifty percent of the State limitation amount allocation shall be allocated to approved qualified zone academies located within the City School District of the City of New York in accordance with the procedures set forth in subparagraph (iii) of this paragraph.

(ii) The remaining fifty percent of the State limitation amount allocation shall be allocated to approved qualified zone academies located within the remaining school districts in the State in accordance with the procedures set forth in subparagraph (iii) of this paragraph.

(iii) Procedures for allocation of State limitation amount.

(a) All applications received from eligible school districts by the date prescribed pursuant to subdivision (d) of this section shall be ranked in order of highest to lowest percentage of students attending the respective qualified zone academy schools or participating in the respective qualified zone academy programs, who are eligible for free or reduced-cost lunches under the school lunch program established under the National School Lunch Act.

(b) Subject to the provisions of subparagraphs (i) and (ii) of this paragraph, the available State limitation amount allocation shall be allocated to approved qualified zone academies in the order of rank, from highest to lowest, as established in clause (a) of this subparagraph, in an amount equal to the amount to be financed by the QZABs to be issued for each respective project, until such allocation is exhausted.

(c) Eligible school districts that timely apply for but do not receive an allocation for qualified zone academies within their districts because the number of applicants exceeds the amount available from the State limitation amount allocation shall receive priority, in the order in which they are ranked, pursuant to clause (a) of this subparagraph, with respect to the next available allocation.

(d) Notwithstanding any other provision of this subdivision to the contrary, in the event the commissioner determines that the State limitation amount allocation for any year will not be exhausted because of the failure of eligible school districts receiving an allocation to spend their allocation, the commissioner may adjust the percentages specified in subparagraphs (i) and (ii) of this paragraph as needed to assure that such State allocation is exhausted; provided that school districts whose allocation for the prior year was reallocated pursuant to this clause shall be given priority in the order in which they are ranked pursuant to clause (a) of this subparagraph in the allocation of any allocated but unspent funds in the current year.

(2) Capital construction projects involving the repair, renovation or alteration of public school facilities that are approved by the commissioner, and established as qualified zone academies pursuant to the provisions of subdivision (d) of this section, shall be eligible to receive building aid pursuant to the provisions of Education Law section 3602(6).

(3) The commissioner shall establish annually the database to be used to determine whether a school district qualifies pursuant to 26 USC section 1397E(d)(4)(A)(iv)(II) as meeting the student eligibility rate in school lunch programs established under the National School Lunch Act.

(d) School district responsibilities.

(1) Eligible school districts, in which a qualified zone academy or academies are located, may apply, in a form prescribed and by a date established by the commissioner, for approval to receive an allocation for such qualified zone academy or academies from the State limitation amount allocation. Such application shall include, but is not limited to:

(i) a certification by the school district within which the qualified zone academy or academies are located that the school(s) or academic program(s) meet the requirements for a qualified zone academy pursuant to 26 USC section 1397E(d)(4);

(ii) a certification by the school district that the bonds to be issued meet the requirements for a qualified zone academy bond pursuant to 26 USC section 1397E(d)(1);

(iii) a description of the capital construction project(s) to be financed through the issuance of qualified zone academy bonds;

(iv) copies of written commitments from private entities to make qualified contributions, as described in 26 USC section 1397E(d)(2)(B), having a present value, as of the date of the issuance of the bond issue, of not less than 10 percent of the proceeds of the issue; and

(v) the written approval of the superintendent of schools and the Board of Education for such bond issuance.

(2) Any capital construction project to be financed through the issuance of qualified zone academy bonds shall be submitted for review to the Office of Facilities Planning in the State Education Department.

(3) Nothing in this regulation shall prevent the use of qualified zone academy bonds for projects that are not capital construction projects, provided that such projects meet all the other requirements of this section, including voter or board authorization, as may be required.

Historical Note

Sec. filed Sept. 19, 2000; amds. filed: Dec. 19, 2001 as emergency measure; Feb. 15, 2002 as emergency measure; March 22, 2002 eff. April 11, 2002. Added (c)(1)(iii)(d).

Section 155.23 Multi-year cost allowance    Disclaimer

(a) The following methodology establishes a multi-year cost allowance which shall apply to school districts and boards of cooperative educational services for the purpose of computation of building aid:

(1) Every school district and board of cooperative educational services shall submit a building condition survey report as required by section 155.4 of this Part.

(2) Cost allowances for reconstructing or modernizing structures shall not exceed 100 percent of the cost allowances for the equivalent new construction over the projected useful life of the building. Building aid cost allowances shall not exceed the maximum cost allowance for the projected useful life of a new building, addition or reconstruction and alterations, using a declining balance method. Once the maximum cost allowance has been exhausted, no further building aid shall be calculated until the projected useful life span has been exhausted.

(3) The architect or engineer of record shall certify to the commissioner the probable useful life of any capital construction work submitted to the commissioner.

(4) The architect or engineer of record shall provide documentation to the commissioner regarding the proper operation and maintenance for each system.

(5) The probable useful life of any building system shall be the period described in section 11.00 of the Local Finance Law. In the absence of any reference to section 11.00 of the Local Finance Law regarding periods of probable useful life, the following shall apply: 30 years for new buildings; 20 years for additions; 15 years for reconstruction projects.

(6) The commissioner may reduce the probable useful life expectancy for purposes of the calculation of building aid upon a finding that replacement or renovation of the existing building is necessary to protect the health and safety of students or staff, and that the need to replace or renovate the building was not caused by a failure to properly operate and maintain the building.

(b) Appeals to the commissioner. A school district or a board of cooperative educational services may appeal a determination of the commissioner that a building has not been adequately maintained. To appeal, a school district or a board of cooperative educational services shall submit documentation describing: how the building was maintained; why the building and/or any of its major building systems, as defined in Education Law section 3602(6)(4), did not last as long as anticipated; what steps, if any, are being taken to remedy the failure of the building and/or any of its major building systems to last for the entire period of probable usefulness; and any other relevant information requested by the commissioner. In addition, the district or board of cooperative educational services shall submit information regarding any claims for recoveries, including insurance guarantee and warranty claims, and the status of any such claims.

 

Section 155.24 School pesticide neighbor notification    Disclaimer

(a) Definitions. For purposes of this section, the following terms shall have the meanings set forth below.

(1) Facility means any school building used for instructional purposes and its surrounding grounds; sites and other grounds used for playgrounds, athletics and other instructional purposes; transportation facilities; and any administrative offices.

(2) Pesticide shall have the same meaning as in section 33-0101(35) of the Environmental Conservation Law.

(3) Relevant facility shall mean any facility where the staff person receiving notification regularly works, or where a child of the person in parental relation receiving notification regularly receives instruction.

(4) School shall mean any public school district, private or parochial school, or board of cooperative educational services.

(5) School pesticide representative shall mean an employee of a public school district, private or parochial school, or board of cooperative educational services (BOCES), who is designated to act as a person to provide written notification, and from whom further information may be obtained, concerning pesticide applications at such school district, private or parochial school, or BOCES.

(6) School year shall mean the period commencing on the first day of regular instruction and ending on the last day of session.

(7) Spring recess shall mean the vacation period following winter recess and prior to the end of the school year.

(8) Summer school shall mean the period commencing on the first day of summer school instruction and ending on the last day of the session.

(9) Winter recess shall mean the vacation period on or about January 1st.

(10) Written notification shall mean notice in writing that is: provided directly to the student or staff; or delivered to a receptacle designated for that student or staff; or mailed to the student's or staff's last known home address; or delivered by any other reasonable methods authorized by the commissioner, including, but not limited to, delivery by means of a school newsletter.

(b) Notification procedures. Schools shall establish written pesticide notification procedures to provide information on pesticide applications at relevant facilities according to the following provisions.

(1) The school shall provide written notification to all staff and persons in parental relation at the beginning of each school year or summer school session. If a child enrolls after the beginning of the school year or summer school session, written notification shall be provided to the person in parental relation within one week of such enrollment. Such written notification shall include at a minimum the following information:

(i) a statement that pesticide products may be used periodically throughout the school year or summer school session;

(ii) a statement that schools are required to maintain a list of staff and persons in parental relation who wish to receive 48-hour prior written notification of pesticide applications at relevant facilities, and instructions on how to register with the school to be on such list for prior notification; and

(iii) the name and phone number of a school pesticide representative who may be contacted to obtain further information.

(2) Within 10 days of the end of the school year, and within two school days of the end of winter recess and spring recess, and within two days of the end of summer school, the school shall provide written notification to all staff and persons in parental relation listing the date, location and product used, for each application which required prior notification and each emergency application made, at relevant facilities, during the period of time since the previous notice. Each notification shall also include a statement that schools are required to maintain a list of staff and persons in parental relation who wish to receive 48-hour prior written notification of pesticide applications and instructions on how to register with the school to be on such a list for prior notification; how to obtain further information about the products being applied, including any warnings that appear on the label of the pesticides that are pertinent to the protection of humans, animals or the environment; and the name and phone number of a school pesticide representative who may be contacted for additional information.

(3) Each school shall establish and maintain a list of staff and persons in parental relation who have requested written notification 48 hours in advance of pesticide applications at relevant facilities. Schools shall add any staff or person in parental relation to such list upon request.

(4) Except as provided in Education Law, section 409-h(2)(e), not less than 48 hours prior to the application of a pesticide at a facility, the school pesticide representative shall provide to those on the list relevant to such facility, written notification which shall include, at a minimum, the following information:

(i) the specific date and location of the application at the relevant facility. In case of outdoor applications, the notice may also include two alternative dates in case the application cannot be made due to weather conditions;

(ii) the product name and the United States Environmental Protection Agency pesticide registration number;

(iii) the following statements: "This notice is to inform you of a pending pesticide application to a school facility. You may wish to discuss with the designated school representative what precautions are being taken to protect your child from exposure to these pesticides. Further information about the product(s) being applied, including any warnings that appear on the label of the pesticide(s) that are pertinent to the protection of humans, animals or the environment, can be obtained by calling the National Pesticide Telecommunications Network information phone number 1-800-858-7378 or the New York State Department of Health Center for Environmental Health Info line at 1- 800-458-1158" ;

(iv) the name and phone number of a school pesticide representative who may be contacted for additional information; and

(v) a copy of the 48-hour notification shall also be posted in a public location within the relevant facility.

(c) Enforcement.

(1) Complaint. Persons in parental relation, staff and other individuals may notify the Commissioner of Education or his/her designee of a school's alleged failure to comply with the requirements of Education Law, section 409-h and this section by submitting a written complaint, in a format prescribed by the commissioner, to the State Education Department, Office of Facilities Planning. Such complaint shall include:

(i) the name, address and telephone number of the complainant;

(ii) the name of the school district, board of cooperative educational services or nonpublic school against which the complaint is made;

(iii) the name and address of the specific facility that is the subject of the complaint; and

(iv) a detailed description of the complaint, including the nature of the school's alleged failure to comply and a statement of the facts in support of such alleged failure to comply.

(2) Investigation. Upon receipt of a written complaint alleging a school's failure to comply with the requirements of this section, the Commissioner of Education or his/her designee shall conduct an investigation to ascertain the school's compliance with this section.

(3) Withholding.

(i) Whenever it shall have been demonstrated to the satisfaction of the commissioner that a public school district has failed to adopt a procedure for notification, or to faithfully and completely implement this section, the commissioner may, on 30 days' notice to the district, withhold from the district monies to be paid to such district for the current school year pursuant to Education Law, section 3609-a, exclusive of monies to be paid in respect of obligations to the retirement systems for the school and district staff and pursuant to collective bargaining agreements.

(ii) Where it has been demonstrated to the satisfaction of the commissioner that a private or parochial school has failed to adopt a procedure for notification, or to faithfully and completely implement this section, the commissioner may, on 30 days' notice to such school, withhold from the school State aid monies to be paid to such school for the current school year pursuant to chapter 507 of the Laws of 1974, as amended by chapter 903 of the Laws of 1984.

(iii) Prior to such withholding, the commissioner shall provide the school an opportunity to present evidence of extenuating circumstances. When combined with evidence that the school shall promptly comply within a short time frame that shall be established by the commissioner as part of an agreement between the school and the commissioner, the commissioner may temporarily stay the withholding of such funds pending implementation of such an agreement. If it is subsequently determined by the commissioner that the school is in full compliance with this section, the commissioner shall abate the withholding in its entirety.

 

Section 155.25 Safety requirements for electrically operated partitions    Disclaimer

(a) Purpose. The purpose of this subdivision is to establish standards pursuant to Education Law, section 409-f, relating to the construction, maintenance and operation of electrically operated partitions located in classrooms or other facilities used by students in public and nonpublic schools or educational institutions within the State.

(b) Definitions. As used in this section, electrically operated partition means any partition, room divider, curtain or other similar device which is controlled through the operation of an electrical motor.

(c) Minimum construction, maintenance and operation standards for electrically operated partitions. Except as provided in paragraph (4) of this subdivision, commencing December 31, 2002, the board of education, trustees, principal or other person in charge of every public or private school or educational institution within the State, wherein classrooms or other facilities used by students are found to have electrically operated partitions, shall ensure that:

(1) every electrically operated partition is equipped with two key-operated, tamper-proof, constant pressure control stations that are wired in series, remotely located at opposite ends and opposite sides of, and in view of, the partition, and which are designed and constructed so as to require simultaneous activation of both control stations to operate the partition;

(2) the electric device controlling the operation of the partition is capable of being reversed at any point in the extend or stack travel cycle; and

(3) device(s) are provided for all partitions that will stop the forward or backward motion of the partition and stop the stacking motion of the partition when a body or object passes between the leading panel of such partition and a wall or other termination point, or when a body or object is in the stacking area of such partition;

(4) a board of education, trustees, principal or other person in charge of a public or private school or educational institution within the State shall be excused from compliance with the provisions of this subdivision for the period December 31, 2002 through June 1, 2003, upon submission to the commissioner of a written certification, in a form prescribed by the commissioner, certifying that such school or institution is unable to fully comply with the provisions of Education Law, section 409-f, as amended by chapter 217 of the Laws of 2001, and that such school or institution shall follow the procedures set forth in paragraph (d)(5) of this section until such time as compliance is achieved.

(d) Safety requirements and operation guidelines for electrically operated partitions. The board of education, trustees, principal or other person in charge of every public and private school or educational institution within the State shall ensure that:

(1) appropriate and conspicuous notice regarding the safe and proper operation and supervision of the electrical device operating such partition shall be posted in the immediate vicinity of each operating mechanism, on both sides of the separation and adjacent to the operating mechanism;

(2) a procedure is established for the notification of all school employees and all other persons who regularly make use of the area where such device is located of the safe and proper procedure for the operation of the mechanism. Staff shall be apprised of safety features and trained in the safe operation of the partition. In addition, such training shall include discussion of past accidents and the potential and possibility of serious injury or death, and information regarding the administrative and civil penalties and accountability for non-compliance with legal requirements, including the penalties for disabling safety equipment required pursuant to Education Law, section 409- f. Records shall be maintained regarding the training provided;

(3) students shall not be permitted to operate such partition. Any students present while the partition is being operated shall be under the direct supervision of trained staff and shall be required to stand away from and not be allowed to cross the path of the moving partition;

(4) safety features shall not be tampered with, overridden or by-passed. All equipment must be maintained in accordance with the manufacturer's instructions, including the manufacturer's recommended service interval, and records of such maintenance shall be permanently retained at the district or private school. All equipment shall be installed in a fail-safe manner such that the failure of any safety device shall render the electrically operated partition inoperable until such device is repaired; and

(5) until such time as the safety devices required pursuant to subdivision (c) of this section are installed and functioning in an electrically operated partition, the following additional procedures shall be followed with respect to the operation of such partition:

(i) the partition shall not be operated during normal school hours;

(ii) the partition shall not be operated when there are students or other individuals, other than the required operators, present in the space being divided;

(iii) the partition shall be operated only by individuals who are properly trained in the safe operation of the partition; and

(iv) appropriate signage stating the requirements in subparagraphs (i) through (iii) of this paragraph shall be posted adjacent to each partition operating station.

 

Section 155.26 Qualified public educational facility bonds    Disclaimer

(a) Purpose. The purpose of this section is to establish procedures, consistent with State and Federal law, for the allocation of the State's qualified public educational facility bond limitation pursuant to 26 USC section 142(k) (Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law section 107-16, section 422, 115 STAT. 65-66; Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402-0001; 2001 - available at the Office of Facilities Planning, State Education Building Annex, Room 1060, Albany, NY 12234).

(b) Definitions. As used in this section:

(1) Qualified public educational facility bond (or QPEF bond) means a bond issued pursuant to the requirements of 26 USC section 142, the proceeds of which are to be used to provide qualified public educational facilities.

(2) Qualified public educational facility means a school facility as defined in 26 USC section 142(k).

(3) Eligible local educational agency means a local educational agency, as defined in 20 USC section 7801(26), which meets the requirements of subdivision (d) of this section (Public Law section 107-110, section 9101[26], 115 STAT 1961-1962, U.S. Government Printing Office, Washington, D.C. 20402- 9328; 2002 - available at the Office of Facilities Planning, State Education Building Annex, Room 1060, Albany, NY 12234).

(4) Annual aggregate face amount of tax-exempt financing means the amount of the QPEF bond limitation allocated to the State pursuant to 26 USC section 142(k)(5).

(c) Allocation. The commissioner shall determine annually the respective amounts of the annual aggregate face amount of tax-exempt financing to be allocated to eligible local educational agencies for approved qualified public educational facilities pursuant to 26 USC section 142(k).

(1) Allocation percentages. Except as provided in subparagraph (2)(iii) of this subdivision:

(i) eighty percent of the annual aggregate face amount of tax-exempt financing shall be allocated to the following eligible local educational agencies: The City School District of the City of New York, the Buffalo City School District, the Syracuse City School District, the Rochester City School District and the Yonkers City School District, in accordance with the procedures specified in paragraph (2) of this subdivision; provided that no more than 10 percent of any amount so allocated to an eligible local educational agency shall be used to finance the equipping of qualified public educational facilities;

(ii) fifteen percent of the annual aggregate face amount of tax-exempt financing shall be allocated to the remaining eligible local educational agencies in the State, other than charter schools, in accordance with the procedures specified in paragraph (2) of this subdivision; provided that no more than 10 percent of any amount so allocated to an eligible local educational agency shall be used to finance the equipping of qualified public educational facilities; and

(iii) the remaining five percent of the annual aggregate face amount of tax-exempt financing shall be allocated to eligible local educational agencies which are charter schools, in accordance with the procedures specified in paragraph (2) of this subdivision; provided that no more than 10 percent of any amount so allocated to an eligible local educational agency shall be used to finance the equipping of qualified public educational facilities.

(2) Allocation procedures.

(i) All applications received from eligible local educational agencies by the date prescribed pursuant to subdivision (d) of this section shall be ranked in order of highest to lowest number of students enrolled in each such local educational agency.

(ii) Subject to the allocation percentages set forth in paragraph (1) of this subdivision, the annual aggregate face amount of tax-exempt financing shall be allocated to eligible local educational agencies in the order of their ranking, from highest to lowest, as established in subparagraph (i) of this paragraph, until such allocation is exhausted.

(iii) Notwithstanding any other provision of this subdivision to the contrary, in the event the commissioner determines that the annual aggregate face amount of tax-exempt financing for any year will not be exhausted because of the failure of an eligible local educational agency receiving an allocation to use all or a part of its allocation, the commissioner may:

(a) reallocate such unused allocation, adjusting the percentages specified in paragraph (1) of this subdivision as necessary, to assure that such annual aggregate face amount of tax-exempt financing is exhausted, provided that eligible local educational agencies whose allocation for the prior year was reallocated pursuant to this clause shall be given priority in the order in which they are ranked pursuant to subparagraph (i) of this paragraph in the allocation of any allocated but unused limitation; or

(b) elect to carry forward such unused allocation for any calendar year for three calendar years following the calendar year in which the unused allocation arose, pursuant to 26 USC section 142(k)(5)(B)(i).

(d) Local educational agency responsibilities.

(1) A local educational agency may apply, in a form prescribed by and a date established by the commissioner, for approval to receive an allocation for QPEF bonds from the annual aggregate face amount of tax-exempt financing. Such application shall include, but is not limited to:

(i) a description of the project(s) and the amount(s) to be financed through the issuance of QPEF bonds;

(ii) a certification by the local educational agency that a public-private partnership agreement has been executed pursuant to 26 USC section 142(k)(2);

(iii) a certification by the local educational agency within which the qualified public educational facility or facilities are located, that each such facility meets the requirements for a qualified public educational facility pursuant to 26 USC section 142(k)(3) and (4);

(iv) the written approval of the superintendent of schools and the Board of Education, or in the case of a charter school - the chief executive officer and the board of trustees of the charter school, for such bond issuance; and

(v) an assurance that each such qualified public educational facility will be in compliance with the Education Law and this section.

(2) In cities with a population of less than 1,000,000, any capital construction project to be financed through the issuance of QPEF bonds shall be submitted to the Office of Facilities Planning in the State Education Department. In cities with a population of 1,000,000 or more, any capital construction project to be financed through the issuance of QPEF bonds shall be submitted to the appropriate authority having jurisdiction for review and issuance of a building permit.

(3) Nothing in this section shall prevent the use of QPEF bonds for projects that are not capital construction projects, provided that such projects meet all the other requirements of this section.