Part 1.
TEXAS HIGHER EDUCATION COORDINATING BOARD
Chapter 1.
AGENCY ADMINISTRATION
Subchapter C. BREACH OF CONTRACT CLAIMS
19 TAC §§1.40 - 1.47
The Texas Higher Education Coordinating Board proposes new §§1.40
- 1.47 concerning Agency Administration (Breach of Contract Claims). Specifically,
these new sections provide procedures for the negotiation and mediation of
certain breach of contract claims asserted by contractors against the Coordinating
Board and counterclaims asserted by the Coordinating Board against contractors.
The new sections substantially conform to the Model Rules published by the
Office of the Attorney General in the March 31, 2000, issue of the
Texas Register
(25 TexReg 2833).
James McWhorter, Assistant Commissioner for Administration has determined
that for the first five-year period the rules are in effect, there will be
no fiscal implications to state or local government as a result of enforcing
or administering the rules.
Mr. McWhorter has also determined that for the first five years the rules
are in effect, the public benefit will be the more timely and efficient resolution
of contract disputes between contractors and the Board. In the past, sovereign
immunity prevented breach of contract claims against the state and the only
process available to the public for resolution of such a claim was to seek
and obtain legislative consent to sue. These proposed rules will provide a
process by which claims for breach of contract and counterclaims can be asserted
and resolved. There will be no effect on state and local government or small
businesses. There is no anticipated economic cost to the persons who are required
to comply with the rules as proposed.
Comments on the proposed new rules may be submitted to Dr. Don W. Brown,
Commissioner of Higher Education, Texas Higher Education Coordinating Board,
P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The new rules are proposed under the Texas Government Code, §2260.052(c),
which provides the Texas Higher Education Coordinating Board with the authority
to adopt rules concerning Agency Administration (Breach of Contract Claims).
The proposed new sections affect Texas Government Code, Chapter 2260.
§1.40.Scope and Purpose.
(a)
This subchapter shall govern the procedures for the negotiation
and mediation of certain breach of contract claims asserted by contractors
against the Texas Higher Education Coordinating Board.
(b)
The purpose of this subchapter is to implement the provisions
of Texas Government Code, Chapter 2260.
§1.41.Applicability.
(a)
This subchapter does not apply to an action of the Board
for which a contractor is entitled to a specific remedy pursuant to state
or federal constitution or statute.
(b)
This subchapter does not apply to contracts:
(1)
between the Board and the federal government or its agencies,
another state or another nation;
(2)
between the Board and two or more units of state government;
(3)
between the Board and a local governmental body, or a political
subdivision of another state;
(4)
between a subcontractor and a contractor;
(5)
subject to §201.112 of the Transportation Code;
(6)
within the exclusive jurisdiction of state or local regulatory
bodies;
(7)
within the exclusive jurisdiction of federal courts or
regulatory bodies; or
(8)
that are solely and entirely funded by federal grant monies
other than for a project defined in 1.32(10) of this title (relating to Definitions).
§1.42.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meaning, unless the context clearly indicates otherwise:
(1)
Commissioner - The Commissioner of Higher Education.
(2)
Claim - A demand for damages by the contractor based upon
the Board's alleged breach of the contract.
(3)
Contract - A written contract between the Board and a contractor
by the terms of which the contractor agrees either:
(A)
to provide goods or services, by sale or lease, to or for
the Board; or
(B)
to perform a project as defined by Government Code, §2166.001.
(4)
Contractor - Independent contractor who has entered into
a contract directly with the Board. The term does not include:
(A)
The contractor's subcontractor, officer, employee, agent
or other person furnishing goods or services to a contractor;
(B)
An employee of the Board; or
(C)
A student at an institution of higher education.
(5)
Counterclaim - A demand by the Board based upon the contractor's
claim.
(6)
Day - A calendar day. If an act is required to occur on
a day falling on a Saturday, Sunday, or holiday, the first working day that
is not one of these days should be counted as the required day for purpose
of this act.
(7)
Event - An act or omission or a series of acts or omissions
giving rise to a claim. The following list contains illustrative examples
of events, subject to the specific terms of the contract:
(A)
Examples of events in the context of a contract for goods
or services:
(i)
the failure of the Board to timely pay for goods and services;
(ii)
the failure to pay the balance due and owing on the contract
price, including orders for additional work, after deducting any amount owed
the Board for work not performed under the contract or in substantial compliance
with the contract terms;
(iii)
the suspension, cancellation, or termination of the contract;
(iv)
final rejection of the goods or services tendered by the
contractor, in whole or in part;
(v)
repudiation of the entire contract prior to or at the outset
of performance by the contractor;
(vi)
withholding liquidated damages from final payment to the
contractor.
(B)
Examples of events in the context of a project:
(i)
the failure to timely pay the unpaid balance of the contract
price following final acceptance of the project;
(ii)
the failure to make timely progress payments required
by the contract;
(iii)
the failure to pay the balance due and owing on the contract
price, including orders for additional work, after deducting any amount owed
the Board for work not performed under the contract or in substantial compliance
with the contract terms;
(iv)
the failure to grant time extensions to which the contractor
is entitled under the terms of the contract;
(v)
the failure to compensate the contractor for occurrences
for which the contract provides a remedy;
(vi)
suspension, cancellation or termination of the contract;
(vii)
rejection by the Board, in whole or in part, of the "work",
as defined by the contract, tendered by the contractor;
(viii)
repudiation of the entire contract prior to or at the
outset of performance by the contractor;
(ix)
withholding liquidated damages from final payment to the
contractor;
(x)
refusal, in whole or in part, of a written request made
by the contractor in strict accordance with the contract to adjust the contract
price, the contract time, or the scope of work.
(C)
The lists in subparagraphs (A) and (B) of this subsection
should not be considered exhaustive but are merely illustrative in nature.
(8)
Goods - Supplies, materials or equipment.
(9)
Parties - The contractor and the Board under a contract
in connection with which a claim of breach of contract has been filed under
this chapter.
(10)
Project - As defined in Government Code §2166.001,
a building construction project that is financed wholly or partly by a specific
appropriation, bond issue or federal money, including the construction of:
(A)
a building, structure, or appurtenant facility or utility,
including the acquisition and installation of original equipment and original
furnishing; and
(B)
an addition to, or alteration, modification, rehabilitation
or repair of an existing building, structure, or appurtenant facility or utility.
(11)
Services - The furnishing of skilled or unskilled labor
or consulting or professional work, or a combination thereof, excluding the
labor of an employee of the Board.
(12)
Board - The Texas Higher Education Coordinating Board.
§1.43.Prerequisites to Suit.
The procedures contained in this subchapter chapter are exclusive and
required prerequisites to suit under the Civil Practice & Remedies Code,
Chapter 107, and the Government Code, Chapter 2260.
§1.44.Sovereign Immunity.
This subchapter does not waive the Board's sovereign immunity to suit
or liability.
§1.45.Negotiation of Contract Disputes.
(a)
Notice of Claim of Breach of Contract.
(1)
A contractor asserting a claim of breach of contract under
the Government Code, Chapter 2260, shall file notice of the claim as provided
by this section.
(2)
The notice of claim shall:
(A)
be in writing and signed by the contractor or the contractor's
authorized representative;
(B)
be delivered by hand, certified mail return receipt requested,
or other verifiable delivery service, to the officer of the Board designated
in the contract to receive a notice of claim of breach of contract under the
Government Code, Chapter 2260; if no person is designated in the contract,
the notice shall be delivered to the Assistant Commissioner for Administration,
and
(C)
state in detail:
(i)
the nature of the alleged breach of contract, including
the date of the event that the contractor asserts as the basis of the claim
and each contractual provision allegedly breached;
(ii)
a description of damages that resulted from the alleged
breach, including the amount and method used to calculate those damages; and
(iii)
the legal theory of recovery, i.e., breach of contract,
including the causal relationship between the alleged breach and the damages
claimed.
(3)
In addition to the mandatory contents of the notice of
claim as required by paragraph (2)(C) of this subsection, the contractor may
submit supporting documentation or other tangible evidence to facilitate the
unit's evaluation of the contractor's claim.
(4)
The notice of claim shall be delivered no later than 180
days after the date of the event that the contractor asserts as the basis
of the claim.
(b)
Board Counterclaim.
(1)
If the Board asserts a counterclaim under the Government
Code, Chapter 2260, notice of the counterclaim shall be filed as provided
by this section.
(2)
The notice of counterclaim shall:
(A)
be in writing;
(B)
be delivered by hand, certified mail return receipt requested
or other verifiable delivery service to the contractor or representative of
the contractor who signed the notice of claim of breach of contract; and
(C)
state in detail:
(i)
the nature of the counterclaim;
(ii)
a description of damages or offsets sought, including
the amount and method used to calculate those damages or offsets; and
(iii)
the legal theory supporting the counterclaim.
(3)
In addition to the mandatory contents of the notice of
counterclaim required by paragraph (C) of this subsection, the Board may submit
supporting documentation or other tangible evidence to facilitate the contractor's
evaluation of the Board's counterclaim.
(4)
The notice of counterclaim shall be delivered to the contractor
no later than 90 days after the Board's receipt of the contractor's notice
of claim.
(5)
Nothing herein precludes the Board from initiating a lawsuit
for damages against the contractor in a court of competent jurisdiction.
(c)
Request for Voluntary Disclosure of Additional Information.
(1)
Upon the filing of a claim or counterclaim, the parties
may request to review and copy information in the possession or custody or
subject to the control of the other party that pertains to the contract claimed
to have been breached, including, without limitation:
(A)
accounting records;
(B)
correspondence, including, without limitation, correspondence
between the Board and outside consultants it utilized in preparing its bid
solicitation or any part thereof or in administering the contract, and correspondence
between the contractor and its subcontractors, materialmen, and vendors;
(C)
schedules;
(D)
the parties' internal memoranda; and
(E)
documents created by the contractor in preparing its offer
to the Board and documents created by the Board in analyzing the offers it
received in response to a solicitation.
(2)
Paragraph (1) of this subsection applies to all information
in the parties' possession regardless of the manner in which it is recorded,
including, without limitation, paper and electronic media.
(3)
The contractor and the Board may seek additional information
directly from third parties, including, without limitation, the unit's third-party
consultants and the contractor's subcontractors.
(4)
Nothing in this section requires any party to disclose
the requested information or any matter that is privileged under Texas law.
(5)
Material submitted pursuant to this subsection and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Public Information Act.
(d)
Duty to Negotiate. The parties shall negotiate in accordance
with the timetable set forth in subsection (e) of this section, to attempt
to resolve all claims and counterclaims. No party is obligated to settle with
the other party as a result of the negotiation.
(e)
Timetable.
(1)
Following receipt of a contractor's notice of claim, the
Commissioner's representative designated in the contract shall review the
contractor's claim(s) and the Board's counterclaim(s), if any, and initiate
negotiations with the contractor to attempt to resolve the claim(s) and counterclaim(s).
(2)
Subject to paragraph (3) of this subsection, the parties
shall begin negotiations within a reasonable period of time, not to exceed
60 days following the later of:
(A)
the date of termination of the contract;
(B)
the completion date, or substantial completion date in
the case of construction projects, in the original contract; or
(C)
the date the unit of state government receives the contractor's
notice of claim.
(3)
The Board may delay negotiations until after the 180th
day after the date of the event giving rise to the claim of breach of contract
by:
(A)
delivering written notice to the contractor that the commencement
of negotiations will be delayed; and
(B)
delivering written notice to the contractor when the Board
is ready to begin negotiations.
(4)
The parties may conduct negotiations according to an agreed
schedule as long as they begin negotiations no later than the deadlines set
forth in paragraphs (2) or (3) of this section, whichever is applicable.
(5)
Subject to paragraph (6) of this subsection, the parties
shall complete the negotiations that are required by this section as a prerequisite
to a contractor's request for contested case hearing no later than 270 days
after the Board receives the contractor's notice of claim.
(6)
The parties may agree in writing to extend the time for
negotiations on or before the 270th day after the Board receives the contractor's
notice of claim. The agreement shall be signed by representatives of the parties
with authority to bind each respective party and shall provide for the extension
of the statutory negotiation period until a date certain. The parties may
enter into a series of written extension agreements that comply with the requirements
of this section.
(7)
The contractor may request a contested case hearing before
the State Office of Administrative Hearings ("SOAH") pursuant to subsection
(j) of this section after the 270th day after the unit receives the contractor's
notice of claim, or the expiration of any extension agreed to under paragraph
(6) of this subsection.
(8)
The parties may agree to mediate the dispute at any time
before the 270th day after the Board receives the contractor's notice of claim
or before the expiration of any extension agreed to by the parties pursuant
to paragraph (6) of this subsection. The mediation shall be governed by §1.36
of this title (relating to Mediation of Contract Disputes).
(9)
Nothing in this subsection is intended to prevent the parties
from agreeing to commence negotiations earlier than the deadlines established
in paragraphs (2) and (3) of this subsection, or from continuing or resuming
negotiations after the contractor requests a contested case hearing before
SOAH.
(f)
Conduct of Negotiation.
(1)
Negotiation is a consensual bargaining process in which
the parties attempt to resolve a claim and counterclaim. A negotiation under
this subchapter may be conducted by any method, technique, or procedure authorized
under the contract or agreed upon by the parties, including, without limitation,
negotiation in person, by telephone, by correspondence, by video conference,
or by any other method that permits the parties to identify their respective
positions, discuss their respective differences, confer with their respective
advisers, exchange offers of settlement, and settle.
(2)
The parties may conduct negotiations with the assistance
of one or more neutral third parties. If the parties choose to mediate their
dispute, the mediation shall be conducted in accordance with §1.36 of
this title. Parties may choose an assisted negotiation process other than
mediation, including without limitation, processes such as those described
in §1.37 of this title (relating to Assisted Negotiation Process).
(3)
To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange relevant
documents that support their respective claims, defenses, counterclaims or
positions.
(4)
Material submitted pursuant to this subsection and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Public Information Act.
(g)
Settlement Approval Procedures. The parties' settlement
approval procedures shall be disclosed prior to, or at the beginning of, negotiations.
To the extent possible, the parties shall select negotiators who are knowledgeable
about the subject matter of the dispute, who are in a position to reach agreement,
and who can credibly recommend approval of an agreement.
(h)
Settlement Agreement.
(1)
A settlement agreement may resolve an entire claim or any
designated and severable portion of a claim.
(2)
To be enforceable, a settlement agreement must be in writing
and signed by representatives of the contractor and the unit of state government
who have authority to bind each respective party.
(3)
Partial settlement does not waive a party's rights under
the Government Code, Chapter 2260, as to the parts of the claims or counterclaims
that are not resolved.
(i)
Costs of Negotiation. Unless the parties agree otherwise,
each party shall be responsible for its own costs incurred in connection with
a negotiation, including, without limitation, the costs of attorney's fees,
consultant's fees and expert's fees.
(j)
Request for Contested Case Hearing.
(1)
If a claim for breach of contract is not resolved in its
entirety through negotiation, mediation or other assisted negotiation process
in accordance with this subchapter on or before the 270th day after the Board
receives the notice of claim, or after the expiration of any extension agreed
to by the parties pursuant to subsection (e)(6) of this section, the contractor
may file a request with the unit of state government for a contested case
hearing before SOAH.
(2)
A request for a contested case hearing shall state the
legal and factual basis for the claim, and shall be delivered to the Commissioner
or other officer designated in the contract to receive notice within a reasonable
time after the 270th day or the expiration of any written extension agreed
to pursuant to subsection (e)(6) of this section.
(3)
The Board shall forward the contractor's request for contested
case hearing to SOAH within a reasonable period of time, not to exceed thirty
days, after receipt of the request.
(4)
The parties may agree to submit the case to SOAH before
the 270th day after the notice of claim is received by the Board if they have
achieved a partial resolution of the claim or if an impasse has been reached
in the negotiations and proceeding to a contested case hearing would serve
the interests of justice.
§1.46.Mediation of Contract Disputes.
(a)
Mediation Timetable.
(1)
The contractor and the Board may agree to mediate the dispute
at any time before the 270th day after the Board receives a notice of claim
of breach of contract, or before the expiration of any extension agreed to
by the parties in writing.
(2)
A contractor and the Board may mediate the dispute even
after the case has been referred to SOAH for a contested case. SOAH may also
refer a contested case for mediation pursuant to its own rules and guidelines,
whether or not the parties have previously attempted mediation.
(b)
Conduct of Mediation.
(1)
Mediation is a consensual process in which an impartial
third party, the mediator, facilitates communication between the parties to
promote reconciliation, settlement, or understanding among them. A mediator
may not impose his or her own judgment on the issues for that of the parties.
The mediator must be acceptable to both parties.
(2)
The mediation is subject to the provisions of the Governmental
Dispute Resolution Act, Government Code, Chapter 2009. For purposes of this
subchapter, "mediation" is assigned the meaning set forth in the Civil Practice
and Remedies Code, §154.023.
(3)
To facilitate a meaningful opportunity for settlement,
the parties shall, to the extent possible, select representatives who are
knowledgeable about the dispute, who are in a position to reach agreement,
or who can credibly recommend approval of an agreement.
(c)
Agreement to Mediate.
(1)
Parties may agree to use mediation as an option to resolve
a breach of contract claim at the time they enter into the contract and include
a contractual provision to do so. The parties may mediate a breach of contract
claim even absent a contractual provision to do so if both parties agree.
(2)
Any agreement to mediate should include consideration of
the following factors:
(A)
The source of the mediator. Potential sources of mediators
include governmental officers or employees who are qualified as mediators
under §154.052, Civil Practice and Remedies Code, private mediators,
SOAH, the Center for Public Policy Dispute Resolution at The University of
Texas School of Law, an alternative dispute resolution system created under
Chapter 152, Civil Practice and Remedies Code, or another state or federal
agency or through a pooling agreement with several state agencies. Before
naming a mediator source in a contract, the parties should contact the mediator
source to be sure that it is willing to serve in that capacity. In selecting
a mediator, the parties should use the qualifications set forth in subsection
(d) of this section.
(B)
The time period for the mediation. The parties should allow
enough time in which to make arrangements with the mediator and attending
parties to schedule the mediation, to attend and participate in the mediation,
and to complete any settlement approval procedures necessary to achieve final
settlement. While this time frame can vary according to the needs and schedules
of the mediator and parties, it is important that the parties allow adequate
time for the process.
(C)
The location of the mediation.
(D)
Allocation of costs of the mediator.
(E)
The identification of representatives who will attend the
mediation on behalf of the parties, if possible, by name or position within
the governmental unit or contracting entity.
(F)
The settlement approval process in the event the parties
reach agreement at the mediation.
(d)
Qualifications and Immunity of the Mediator.
(1)
The mediator shall possess the qualifications required
under Civil Practice and Remedies Code, §154.052, be subject to the standards
and duties prescribed by Civil Practice and Remedies Code, §154.053,
and have the qualified immunity prescribed by Civil Practice and Remedies
Code, §154.055, if applicable.
(2)
The parties should decide whether, and to what extent,
knowledge of the subject matter and experience in mediation would be advisable
for the mediator.
(3)
The parties should obtain from the prospective mediator
the ethical standards that will govern the mediation.
(e)
Confidentiality of Mediation and Final Settlement Agreement.
(1)
A mediation conducted under this section is confidential
in accordance with Government Code, §2009.054.
(2)
The confidentiality of a final settlement agreement to
which the Board is a signatory that is reached as a result of the mediation
is governed by Government Code, Chapter 552.
(f)
Costs of Mediation. Unless the contractor and Board agree
otherwise, each party shall be responsible for its own costs incurred in connection
with the mediation, including costs of document reproduction for documents
requested by such party, attorney's fees, and consultant or expert fees. The
costs of the mediation process itself shall be divided equally between the
parties.
(g)
Settlement Approval Procedures. The parties' settlement
approval procedures shall be disclosed by the parties prior to the mediation.
To the extent possible, the parties shall select representatives who are knowledgeable
about the subject matter of the dispute, who are in a position to reach agreement,
and who can credibly recommend approval of an agreement.
(h)
Initial Settlement Agreement. Any settlement agreement
reached during the mediation shall be signed by the representatives of the
contractor and the unit of state government, and shall describe any procedures
required to be followed by the parties in connection with final approval of
the agreement.
(i)
Final Settlement Agreement.
(1)
A final settlement agreement reached during, or as a result
of mediation, that resolves an entire claim or any designated and severable
portion of a claim shall be in writing and signed by representatives of the
contractor and the Board who have authority to bind each respective party.
(2)
If the settlement agreement does not resolve all issues
raised by the claim and counterclaim, the agreement shall identify the issues
that are not resolved.
(3)
A partial settlement does not waive a contractor's rights
under the Government Code, Chapter 2260, as to the parts of the claim that
are not resolved.
(j)
Referral to the State Office of Administrative Hearings.
If mediation does not resolve all issues raised by the claim, the contractor
may request that the claim be referred to SOAH by the Board. Nothing in these
rules prohibits the contractor and the Board from mediating their dispute
after the case has been referred for contested case hearing, subject to the
rules of SOAH.
§1.47.Assisted Negotiation Processes.
(a)
Parties to a contract dispute under Government Code, Chapter
2260, may agree, either contractually or when a dispute arises, to use assisted
negotiation (alternative dispute resolution) processes in addition to negotiation
and mediation to resolve their dispute.
(b)
Factors Supporting the Use of Assisted Negotiation Processes.
The following factors may help parties decide whether one or more assisted
negotiation processes could help resolve their dispute:
(1)
The parties recognize the benefits of an agreed resolution
of the dispute;
(2)
The expense of proceeding to contested case hearing at
SOAH is substantial and might outweigh any potential recovery;
(3)
The parties want an expedited resolution;
(4)
The ultimate outcome is uncertain;
(5)
There exists factual or technical complexity or uncertainty
that would benefit from expertise of a third-party expert for technical assistance
or fact-finding;
(6)
The parties are having substantial difficulty communicating
effectively;
(7)
A mediator third party could facilitate the parties' realistic
evaluation of their respective cases;
(8)
There is an on-going relationship that exists between parties;
(9)
The parties want to retain control over the outcome;
(10)
There is a need to develop creative alternatives to resolve
the dispute;
(11)
There is a need for flexibility in shaping relief;
(12)
The other side has an unrealistic view of the merits of
their case;
(13)
The parties (or aggrieved persons) need to hear an evaluation
of the case from someone other than their lawyers.
(c)
Use of Assisted Negotiation Processes. Any of the following
methods, or a combination of these methods, or any assisted negotiation process
agreed to by the parties, may be used in seeking resolution of disputes or
other controversy arising under Government Code, Chapter 2260. If the parties
agree to use an assisted negotiation procedure, they should agree in writing
to a detailed description of the process prior to engaging in the process.
(1)
Mediation. See §1.35 of this title (relating to Negotiation
of Contract Disputes).
(2)
Early evaluation by a third-party neutral.
(A)
This a confidential conference where the parties and their
counsel present the factual and legal bases of their claim and receive a non-binding
assessment by an experienced neutral with subject-matter expertise or with
significant experience in the substantive area of law involved in the dispute.
(B)
After summary presentations, the third-party neutral identifies
areas of agreement for possible stipulations, assesses the strengths and weaknesses
of each party's position, and estimates, if possible, the likelihood of liability
and the dollar range of damages that appear reasonable to him or her.
(C)
This is a less complicated procedure than the mini-trial,
described in paragraph (4) of this subsection. It may be appropriate for only
some issues in dispute, for example, where there are clear-cut differences
over the appropriate amount of damages. This process may be particularly helpful
when:
(i)
The parties agree that the dispute can be settled;
(ii)
The dispute involves specific legal issues;
(iii)
The parties disagree on the amount of damages;
(iv)
The opposition has an unrealistic view of the dispute;
or
(v)
The neutral is a recognized expert in the subject area
or area of law involved.
(3)
Neutral fact-finding by an expert.
(A)
In this process, a neutral third-party expert studies a
particular issue and reports findings on that issue. The process usually occurs
after most discovery in the dispute has been completed and the significance
of particular technical or scientific issues is apparent.
(B)
The parties may agree in writing that the fact-finding
will be binding on them in later proceedings (and entered into as a stipulation
in the dispute if the matter proceeds to contested case hearing), or that
it will be advisory in nature, to be used only in further settlement discussions
between representatives of the parties. This process may be particularly helpful
when:
(i)
Factual issues requiring expert testimony may be dispositive
of liability or damage issues;
(ii)
The use of a neutral is cost effective; or
(iii)
The neutral's findings could narrow factual issues for
contested case hearing.
(4)
Mini-trial.
(A)
A mini-trial is generally a summary proceeding before a
representative of upper management from each party, with authority to settle,
and a third-party neutral selected by agreement of the parties. A mini-trial
is usually divided into three phases: a limited information exchange phase,
the actual hearing, and post-hearing settlement discussions. No written or
oral statement made in the proceeding may be used as evidence or an admission
in any other proceeding.
(B)
The information exchange stage should be brief but it must
be sufficient for each party to understand and appreciate the key issues involved
in the case. At a minimum, parties should exchange key exhibits, introductory
statements, and a summary of witness's testimony.
(C)
At the hearing, representatives of the parties present
a summary of the anticipated evidence and any legal issues that must be decided
before the case can be resolved. The third-party neutral presides over the
presentation and may question witnesses and counsel, as well as comment on
the arguments and evidence. Each party may agree to put on abbreviated direct
and cross-examination testimony. The hearing generally takes no longer than
1-2 days.
(D)
Settlement discussions, facilitated by the third-party
neutral, take place after the hearing. The parties may ask the neutral to
formally evaluate the evidence and arguments and give an advisory opinion
as to the issues in the case. If the parties cannot reach an agreed resolution
to the dispute, either side may declare the mini-trial terminated and proceed
to resolve the dispute by other means.
(E)
Mini-trials may be appropriate when:
(i)
The dispute is at a stage where substantial costs can be
saved by a resolution based on limited information gathering;
(ii)
The matter justifies the senior executive time required
to complete the process;
(iii)
The issues involved include highly technical mixed questions
of law and fact;
(iv)
The matter involves trade secrets or other confidential
or proprietary information; or
(v)
The parties seek to narrow the large number of issues in
dispute.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005065
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
Subchapter A. PURPOSE, AUTHORITY, AND DEFINITIONS
19 TAC §§12.1 - 12.3
The Texas Higher Education Coordinating Board proposes New §§12.1
- 12.3 concerning Proprietary Schools (Purpose, Authority, and Definitions).
Specifically, the new sections eliminate unnecessary definitions; eliminate
duplication between the rules and the Guidelines for Instructional Programs
in Workforce Education given the institutions for implementation of the rules;
clarify the provisions governing institutional eligibility as different from
approval and revision of associate degree programs; include the complaint
procedure; align appeal procedures for any decision made by Board staff,
the Commissioner, or the Board itself with Chapter 1 of Board rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules
for proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed new rules may be submitted to Dr. Don W. Brown,
Commissioner of Higher Education, Texas Higher Education Coordinating Board,
P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The new rules are proposed under Texas Education Code, Chapter
132, §132.063, and Chapter 61, Subchapter G, which provides the Texas
Higher Education Coordinating Board with the authority to adopt rules concerning
Proprietary Schools (Purpose, Authority, and Definitions).
The proposed new sections affect Texas Education Code, Chapter 132, §132.063
and Chapter 61,
§12.1.Purpose.
The purpose of this chapter is to assure the quality and integrity
of associate degree programs offered by proprietary institutions by establishing
minimum standards and operating requirements, encouraging continuous improvement
of degree programs, and promoting institutional accountability.
§12.2.Authority.
The Texas Education Code, Chapter 132, §132.063, and Chapter 61,
Subchapter G, authorize the Board to adopt policies, enact regulations, and
establish rules to enforce minimum standards for the approval and on-going
assessment of programs of study leading to associate degrees offered by proprietary
institutions.
§12.3.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Agent--Proprietary institution owner, partner, stockholder,
officer, recruiter, administrator, faculty member, financial aid counselor,
academic counselor or other person who represents the institution in an official
capacity. Persons employed in clerical, custodial, or similar positions,
or shareholders with no direct relationship to the institution, are not considered
agents of an institution.
(2)
Associate degree program--A grouping of courses designed
to lead the individual directly to employment in a specific career, or to
transfer to an upper-level baccalaureate program. This specifically refers
to the associate of arts, the associate of science, the associate of applied
arts, the associate of applied science, and the associate of occupational
studies degrees.
(3)
Board or Coordinating Board--The Texas Higher Education
Coordinating Board.
(4)
Certificate of Authority--The document provided to a proprietary
institution to certify that it has met the standards set forth in the rules
of the Board and that, pursuant to the Texas Education Code, Chapter 132
and Chapter 61, Subchapter G, it is authorized to conduct courses and grant
the degrees specified on the certificate.
(5)
Change of ownership or control--Any change in ownership
or control of a proprietary institution or an agreement to transfer control
of such institution. The ownership or control of a proprietary institution
is considered to have changed:
(A)
In the case of ownership by an individual, when more than
50 percent of the institution has been sold or transferred;
(B)
In the case of ownership by a partnership or a corporation,
when more than 50 percent of the institution or of the owning partnership
or corporation has been sold or transferred;
(C)
When the board of directors, officers, shareholders, or
similar governing body has been changed to such an extent as to significantly
alter the management and control of the institution; or
(D)
A change of ownership or control does not include a transfer
which occurs as a result of the retirement or death of the owner if transfer
is to a member of the owner's family who has been directly and constantly
involved in the management of the institution for a minimum of two years
preceding the transfer. For the purposes of this section, a member of the
owner's family is a parent, sibling, spouse or child; spouse's parent or
sibling; or sibling's or child's spouse.
(6)
Cited--Any reference to an institution in a negative finding
or action by an accreditor.
(7)
Classification of Instructional Programs (CIP) Code--The
4- or 6-digit code assigned to an approved associate degree program in accordance
with the CIP manual published by the U. S. Department of Education, National
Center for Education Statistics. CIP codes define the authorized teaching
field of the specified degree program, based upon the occupation(s) for which
the program is designed to prepare its graduates.
(8)
Commissioner or Commissioner of Higher Education--The chief
executive officer of the Texas Higher Education Coordinating Board.
(9)
Concurrent instruction--Students enrolled in different
classes, courses, and/or subjects being taught, monitored, or supervised
simultaneously by a single faculty member.
(10)
Contract instruction--Specifically targeted instruction
designed by a proprietary institution and a contracting entity.
(11)
Degree--Any title or designation, mark, abbreviation,
appellation, or series of letters or words, including associate, bachelor's,
master's, doctor's and their equivalents, which signify, purport to signify,
or are generally taken to signify satisfactory completion of the requirements
of all or part of a program of study which is generally regarded and accepted
as an academic/occupational degree-level program among Texas postsecondary
institutions.
(12)
Exempt institution--A degree-granting institution exempt
from the Texas Education Code, Chapter 132.
(13)
Guidelines for Instructional Programs in Workforce Education--Board-approved
publication of policies and guidelines for the effective design, development,
operation, and evaluation of workforce education programs, in two-year associate
degree-granting institutions, including the elements of applied associate
degree programs in proprietary institutions.
(14)
Institution--A proprietary institution.
(15)
Owner--The proprietor of a proprietary institution including
an individual; a partnership including all full, silent, and limited partners;
a corporation or corporations including directors, officers, and each shareholder
owning shares of issued and outstanding stock aggregating at least 10% of
the total of the issued and outstanding shares.
(16)
Private postsecondary institution--An institution of higher
education that:
(A)
Is not a public junior college, public senior college,
or university, medical or dental unit or other agency as defined in the Texas
Education Code, §61.003;
(B)
Is incorporated under the laws of this state, or maintains
a place of business in this state, or has a representative present in this
state, or solicits business in this state; and
(C)
Furnishes or offers to furnish courses of instruction in
person, by electronic media, or by correspondence leading to a degree or
provides or offers to provide credits alleged to be applicable to a degree.
(17)
Program approval--The process whereby a proprietary institution
requests approval from the Board to implement a technical or vocational program
of study leading to an applied associate degree.
(18)
Program or program of study--Any course or grouping of
courses which entitles a student to an applied associate degree or to credits
which are applicable to an applied associate degree.
(19)
Proprietary institution--Any business enterprise operated
for a profit, or on a nonprofit basis, that maintains a place of business
in the State of Texas or solicits business within the State of Texas, and
that is not specifically exempted by this chapter, and:
(A)
That offers or maintains a course or courses of instruction
or study; or
(B)
At which place of business such a course or courses of
instruction or study is available through classroom instruction or by correspondence,
or both, to a person for the purpose of training or preparing the person
for a field of endeavor in a business, trade, technical, or industrial occupation,
or for avocational or personal improvement.
(20)
Prospective student--An individual who expresses interest
in a program of study and who is provided with written information about
the institution or any of the institutions' programs.
(21)
Target market area--The local, regional, statewide, and/or
national area from which the proprietary institution's students are drawn
and in which employment opportunities have been identified for graduates
of that institution's associate degree programs.
(22)
Teach-out agreement--A formal arrangement between a closed
proprietary institution and another institution authorized by the Board to
grant the associate degree, which provides for student transfer, completion
of degree requirements, and awarding degrees to students transferred from
the closed proprietary institution.
(23)
Teach-out institution--An institution authorized by the
Board to grant the associate degree and has formally accepted the transfer
of students from a closed proprietary institution.
(24)
Texas Academic Skills Program (TASP) Test--The test required
under the Texas Education Code, §51.306, that is uniformly administered
statewide on days prescribed by the Board and is scored by the testing contractor.
The test measures college readiness in reading, writing, and mathematics
and includes a written essay and is administered under secure conditions
and for which each student is provided diagnostic information regarding test
performance.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005061
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
19 TAC §§12.21-12.24
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Higher Education Coordinating Board or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Higher Education Coordinating Board proposes
the repeal of §§12.21 - 12.24 concerning Proprietary Schools (Purpose
and Authority). Specifically, the repeal of the rules eliminate unnecessary
definitions; eliminate duplication between the rules and the Guidelines for
Instructional Programs in Workforce Education given the institutions for implementation
of the rules; clarify the provisions governing institutional eligibility as
different from approval and revision of associate degree programs; include
the complaint procedure; align appeal procedures for any decision made by
Board staff, the Commissioner, or the Board itself with Chapter 1 of Board
rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules for
proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed repeal of the rules may be submitted to Dr. Don
W. Brown, Commissioner of Higher Education, Texas Higher Education Coordinating
Board, P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The repeal of the rules is proposed under Texas Education Code,
Chapter 132, §132.063, and Chapter 61, Subchapter G, which provides the
Texas Higher Education Coordinating Board with the authority to adopt rules
concerning Proprietary Schools (Purpose and Authority).
The proposed repeal of the rules affect Texas Education Code, Chapter 132, §132.063
and Chapter 61, Subchapter G.
§12.21.Purpose.
§12.22.Authority.
§12.23.Degree Titles Authorized.
§12.24.Definitions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005057
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
19 TAC §§12.21 - 12.39
The Texas Higher Education Coordinating Board proposes new §§12.21
- 12.39 concerning Proprietary Schools (General Provisions). Specifically,
the new sections eliminate unnecessary definitions; eliminate duplication
between the rules and the Guidelines for Instructional Programs in Workforce
Education given the institutions for implementation of the rules; clarify
the provisions governing institutional eligibility as different from approval
and revision of associate degree programs; include the complaint procedure;
align appeal procedures for any decision made by Board staff, the Commissioner,
or the Board itself with Chapter 1 of Board rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules
for proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed new rules may be submitted to Dr. Don W. Brown,
Commissioner of Higher Education, Texas Higher Education Coordinating Board,
P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The new rules are proposed under Texas Education Code, Chapter
132, §132.063, and Chapter 61, Subchapter G, which provides the Texas
Higher Education Coordinating Board with the authority to adopt rules concerning
Proprietary Schools (General Provisions).
The proposed new sections affect Texas Education Code, Chapter 132, §132.063
and Chapter 61, Subchapter G.
§12.21.Degree Titles Authorized.
(a)
Associate of Applied Science (AAS), Associate of Applied
Arts (AAA), and Associate of Occupational Studies (AOS) degrees shall be
the only associate degrees authorized under this chapter.
(b)
A private postsecondary institution seeking authority to
offer a baccalaureate or higher degree shall seek approval from the Board
and is subject to the provisions outlined under Chapter 5, Subchapter K,
of this title (relating to Private and Out-of- State Public Degree-Granting
Institutions Operating in Texas).
§12.22.Fees and Expenses.
(a)
The Board is authorized to establish and collect fees from
institutions to offset the costs of associate degree program coordination
and administration for proprietary institutions. The Commissioner is authorized
by the Board to set these fees in an amount not to exceed the actual cost
incurred for the service or services provided by the staff. The current fee
schedule and the nature of the fees are outlined in the Guidelines for Instructional
Programs in Workforce Education.
(b)
Travel expenses for Board staff to conduct pre-application
site visits and/or follow-up visits to verify compliance with Board standards
and policies in applicant institutions shall be borne by the institution.
(c)
Travel expenses for all on-site review team members, except
Board staff, shall be borne by the institution.
(d)
In addition to payment of travel expenses, fees shall be
assessed and collected for:
(1)
an Application for New Workforce Education Program;
(2)
a Program Revision; and
(3)
annual administration and oversight.
§12.23.Application for a Certificate of Authority.
(a)
Prior to submission of an initial request for approval
to offer an associate degree program, a proprietary institution shall submit
to the Board an Application for a Certificate of Authority.
(b)
A proprietary institution may submit an Application for
a Certificate of Authority to the Board if it:
(1)
has been in operation enrolling students and conducting
classes in Texas and has complied with state law as a non degree-granting
institution for a minimum of two years; or
(2)
has been legally operating as a degree-granting institution
in another state for a minimum of four years and can verify compliance with
all applicable rules in that state.
(c)
The Application for a Certificate of Authority shall contain
the following:
(1)
a description of the purpose of the institution;
(2)
names of sponsor or owners of the institution;
(3)
regulations, rules, constitutions, bylaws, or other regulations
established for the governance and operation of the institution;
(4)
the names and addresses of the chief administrative officer,
and the principal administrators and each member of the board of trustees
or other governing boards;
(5)
a full description of the admission requirements; and
(6)
a description of the facilities and equipment utilized
by the institution.
§12.24.Standards for Associate Degree-Granting Proprietary Institutions.
The decision to grant a Certificate of Authority to a proprietary institution
shall be based upon its compliance with the following 16 standards.
(1)
Qualifications of Institutional Officers. The character,
education, and experience in higher education of governing board members,
administrators, supervisors, counselors, agents, and other institutional
officers shall be such as may reasonably ensure that students will receive
education consistent with the objectives of the course or program of study.
All administrators of an institution shall meet the qualifications outlined
in the Guidelines for Instructional Programs in Workforce Education.
(2)
Instructional Assessment. Provisions shall be made for
the continual assessment of the program of study, including the evaluation
and improvement of instruction.
(3)
Curriculum. The quality, content, and sequence of each
course, curriculum, or program of instruction, training, or study shall be
appropriate to the purpose of the institution and shall be such that the
institution may reasonably and adequately achieve the stated objectives of
the course or program. Substantially all of the courses in the program of
study shall be offered in organized classes by the institution. All curricula
shall meet the standards and criteria outlined in the Guidelines for Instructional
Programs in Workforce Education.
(4)
Facilities and Equipment. The institution shall have adequate
space, equipment, and instructional materials to provide good quality education
and training. All facilities and equipment shall meet the standards outlined
in the Guidelines for Instructional Programs in Workforce Education.
(5)
Financial Resources and Stability. The institution shall
have the adequate financial resources and financial stability to satisfy
the financial regulations of the Texas Workforce Commission, the U. S. Department
of Education if the institution participates in Title IV financial aid programs,
and the institution's accrediting agency. The institution shall furthermore
have sufficient financial reserves so that it would be able to teach-out
currently enrolled students if it were unable to admit any new students.
(6)
Financial Records. Financial records and reports of the
institution shall be kept and made separate and distinct from those of any
affiliated or sponsoring person or entity. Financial records and reports
shall be in accordance with generally accepted accounting practices.
(7)
Administrative Resources. The director of a proprietary
institution having a Certificate of Authority shall have daily access to
electronic communication, including e-mail and a connection to the Internet/World
Wide Web. All institutions must be able to receive time-sensitive information
about Board rules and policies via electronic media.
(8)
Faculty, Academic Freedom, and Faculty Security. All faculty
shall meet the qualifications outlined in the Guidelines for Instructional
Programs in Workforce Education. The institution shall adopt and distribute
to all members of the faculty a statement assuring freedom in teaching, scholarly
inquiry, and dissemination of knowledge. This requirement in no way limits
an institution's legitimate evaluation of faculty member performance.
(A)
All policies concerning promotion, non-renewal or termination
of appointments, including for cause, shall be described in writing and furnished
to all faculty members.
(B)
The specific terms and conditions of employment of each
faculty member shall be clearly described in writing and furnished to each
faculty member.
(9)
Academic Records. A system of record keeping shall be established
and maintained in a manner consistent with accepted and professional practice
in higher education. Records shall be securely maintained at all times. Contents
of records shall, at minimum, include attendance and progress or grades.
Two copies of the information necessary to generate student transcripts shall
be maintained at separate locations. At least one copy shall be secured in
a manner which is resistant to destruction by fire and natural disaster.
In addition,
(A)
transcripts shall be issued upon request of students or
former students; and
(B)
an institution may withhold a student transcript as allowed
in the Texas Education Code, §132.062.
(10)
Catalog. The information described by subparagraphs (A)
- (Q) of this paragraph shall be provided to prospective students prior to
enrollment. The institution shall provide students and other interested persons
with a catalog or brochure. If any of the information is provided to students
in the form of a supplement or addendum to a printed and bound catalog, the
institution shall retain documentation on file to verify that every enrolled
student received a copy of the addendum or supplement along with the catalog.
The institution shall, on an annual basis, furnish the Board with a copy of
its most current catalog and a current roster of all faculty members including
names, addresses, teaching assignments, and highest degree earned. The institution
shall provide students and other interested persons with a catalog or brochure
containing, at minimum, the following information:
(A)
the mission of the institution;
(B)
a statement of admissions policies;
(C)
information describing the purpose, length, and objectives
of the program(s) offered by the institution;
(D)
the schedule of tuition, fees, and all other charges and
expenses necessary for completion of the course of study;
(E)
cancellation and refund policies;
(F)
a definition of the unit of credit as it applies at the
institution;
(G)
an explanation of satisfactory progress as it applies at
the institution; an explanation of the grading or marking system;
(H)
the institution's calendar including the beginning and
ending dates for each instructional term, holidays, and registration dates;
(I)
a listing of full-time faculty members showing highest
earned degree and identifying the institution which awarded the degree;
(J)
areas of faculty specialization;
(K)
names and titles of administrators;
(L)
a statement of legal control with the names of the trustees,
directors, and officers of the corporation;
(M)
a complete listing of all scholarships offered, if any;
(N)
a statement describing the nature and extent of available
student services;
(O)
a statement of transfer credit policy;
(P)
a statement of TASP requirements; and
(Q)
any disclosures specified by the Board or defined in Board
rules.
(11)
Refund Policy. The institution shall adopt, publish, and
adhere to a fair and equitable cancellation and refund policy.
(12)
Program Award Credentials. Upon completion of an approved
program of study, students shall be awarded appropriate credentials by the
institution indicating that the program undertaken has been satisfactorily
completed.
(13)
Student Rights and Responsibilities. A handbook, catalog,
or other publication listing the student's rights and responsibilities shall
be published and supplied to the student upon enrollment in the institution.
The institution shall establish a clear and fair policy regarding due process
in disciplinary matters and shall inform each student of these policies in
writing.
(14)
Housing. Student housing owned, maintained, or approved
by the institution, if any, shall be appropriate, safe, adequate, and in
compliance with applicable state and local requirements.
(15)
Legal Compliance. The institution shall be maintained
and operated in compliance with all applicable rules and regulations of the
Texas Workforce Commission.
(16)
Library/Library Resource Center. The institution shall
have a library or learning resource center available to all students. The
library facilities, equipment, and personnel shall meet the requirements
and qualifications outlined in the Guidelines for Instructional Programs
in Workforce Education.
§12.25.Commissioner Action on an Application for a Certificate of Authority.
(a)
The Commissioner or his/her designee shall approve or disapprove
the Application for a Certificate of Authority. Approval of the Application
grants the proprietary institution the authority to grant associate degrees.
However, separate program approval shall be required for all associate degree
programs in accordance with this chapter.
(b)
Authority for each specified associate degree program granted
under the Certificate of Authority continues in effect until withdrawn by
the Commissioner for the institution's failure to comply with the rules and
regulations of the Board or the institution's license to operate is revoked
by the Texas Workforce Commission. The Certificate remains the property of
the Board, and must be returned in the event of withdrawal of authorization
or voluntary termination of all associate degree programs by the institution
or closure of the institution.
§12.26.Change of Ownership or Control.
(a)
In the event of a change in ownership or control of a proprietary
institution, the Certificate of Authority is automatically withdrawn.
(b)
Authorization to retain the Certificate of Authority during
the term of a change of ownership or control may be granted by the Commissioner
provided that Board staff are notified of the impending transfer and that
the following conditions are met:
(1)
presentation of acceptable evidence that the new owner
is complying with all Texas Workforce Commission requirements regarding the
purchase or transfer of ownership of a proprietary institution;
(2)
submission of an acceptable written statement of assurance
that the new owner understands and shall fully comply with all applicable
Board rules, regulations, and policies; and
(3)
submission of satisfactory evidence of financial ability
to adequately support and conduct all approved programs. Documentation must
include but may not be limited to independently audited financial statements
and auditors reports;
(c)
If the conditions outlined under subsection (b) of this
section are not met prior to completion of transfer of ownership or control
and the institution loses its Certificate of Authority, the new owner(s)
shall submit a new Application for a Certificate of Authority as outlined
under §12.23 of this title (relating to Application for a Certificate
of Authority).
(d)
Any modification of an approved associate degree program
which results from a change of ownership or control constitutes a program
revision. Requests for approval of program revisions shall conform to the
procedures and requirements contained in the Guidelines for Instructional
Programs in Workforce Education.
(e)
If the ownership or control of a proprietary institution
is transferred within, among, or between different subsidiaries, branches,
divisions, or other components of a corporation and if said transfer in no
way diminishes the proprietary institution's administrative capability or
educational program quality, the Commissioner may permit the school to retain
its Certificate of Authority during the transfer period. In such cases, the
proprietary institution shall fully comply with all provisions outlined in
subsection (b) of this section.
§12.27.Closure of a Proprietary Institution.
(a)
The governing board, owner, or chief executive officer
of a proprietary institution which plans to cease operation shall provide
the Board with written notification of intent to close at least 90 days prior
to the planned closing date.
(b)
If a proprietary institution closes or intends to close
before all currently enrolled students have completed all requirements for
graduation, the institution shall assure the continuity of students' education
by entering into a teach-out agreement with another proprietary institution
authorized by the Board holding a Certificate of Authority or with a public
community or technical college. The agreement shall be in writing and shall
contain provisions for student transfer and specify the conditions for completion
of degree requirements at the teach-out institution. The agreement shall
also contain provisions for awarding degrees.
(c)
The Certificate of Authority for a proprietary institution
is automatically withdrawn when the institution closes.
§12.28.Institutional Evaluation.
(a)
The institution shall establish adequate procedures for
planning and evaluation, define in measurable terms its expected educational
results, and describe how those results will be achieved.
(b)
The evaluation criteria shall include the following: mission,
labor market need, curriculum, enrollment, graduates, student placement,
follow-up results, ability to finance each program of study, facilities and
equipment, instructional practices, student services, public and private
linkages, and qualifications of faculty and administrative personnel.
§12.29.Accreditation.
(a)
Proprietary institutions having a Certificate of Authority
and authorized to grant an associate degree must make available, upon request
by the Board, all accrediting agency reports and any findings and institutional
responses to such reports and findings.
(b)
If cited by an accreditor, a proprietary institution authorized
to grant the associate degree shall, within 30 days of receipt of the accrediting
agency's final report, provide the Board with a copy of the citation, the
accreditor's final report, and a complete report to all subsequent actions
by both the accreditor and the institution.
(c)
A proprietary institution shall operate all associate degree
programs in compliance with the standards of its institutional and/or program-level
accreditation or with membership in a trade or professional association.
§12.30.Texas Academic Skills Program (TASP).
Any individual who enrolls in an associate degree program at a proprietary
institution on or after September 1, 1997, shall pass all sections of the
Texas Academic Skills Program (TASP) Test at the level established by the
Board before the degree may be awarded.
§12.31.Transfer of Credit.
A proprietary institution holding a Certificate of Authority to grant
the associate degree shall publish in a prominent place in the institution's
catalog complete and clearly stated information about the transferability
of credit to other postsecondary institutions including community and technical
colleges and four-year institutions.
§12.32.Graduation and Job Placement Rates.
A proprietary institution authorized to grant the associate degree
shall provide to each prospective student, newly-enrolled student, and returning
student, complete, clearly presented information indicating the institution's
current graduation rate by program and job placement rate by program.
§12.33.The Associate of Occupational Studies (AOS) Degree.
Granting of the AOS degree shall only occur according to the following
terms:
(1)
The policy regarding all AOS degrees as adopted by the
Board on April 29, 1993, and policies outlined under this section shall guide
all proceedings of the Board, staff, and affected institutions.
(2)
The State of Texas has four proprietary schools awarding
the AOS degree: MTI College of Business and Technology (known as Microcomputer
Technology Institute when the policy was adopted), Universal Technical Institute,
Southwest School of Electronics, and Western Technical Institute. The AOS
degree shall be awarded in only the following fields: automotive mechanics,
diesel mechanics, refrigeration, electronics, and business. Each of the four
schools may continue to award the AOS degree for those fields listed above
and shall be restricted to those fields.
(3)
No new AOS degrees shall be offered by any proprietary
institution.
(4)
Subspecialties within the authorized fields outlined under
paragraph (2) of this subsection at the six-digit CIP code level, and under
the present degree titles, may be offered and advertised upon approval as
a program revision by Board staff. Specialties designed to prepare students
for careers in products, services, or technologies not authorized by the
Board as of April 29, 1993, shall not be accepted as permissible program
revisions and shall not be offered under existing AOS degree umbrellas. Any
such program of study shall be submitted to the Board as a new program request.
(5)
A proprietary institution authorized to grant the AOS degree
shall not represent such degree by using the terms "associate" or "associates"
without including the words "occupational studies." An institution authorized
to grant the AOS degree shall not represent such degree as being the equivalent
of the AAS or AAA degrees.
§12.34.Concurrent Instruction.
(a)
Concurrent instruction of students enrolled in an associate
degree program or in any component of a degree program is prohibited.
(b)
The following activities do not constitute concurrent instruction:
(1)
voluntary participation in laboratory and/or skill-building
activities outside of required lecture and laboratory class sessions;
(2)
voluntary participation in study and/or review sessions
outside of required lecture and laboratory class sessions;
(3)
sitting for proctored examinations;
(4)
field trips; or
(5)
extracurricular activities.
§12.35.Credit for Prior Learning.
(a)
If a proprietary institution awards credit for prior learning
obtained outside a formal collegiate setting, the institution shall establish
and adhere to a systematic method for evaluating that prior learning, equating
it with course content appropriate to the institution's authorized degree
program(s).
(b)
The method of evaluating prior learning shall be subject
to ongoing review and evaluation by the institution's teaching faculty. In
no instance shall course credit be awarded solely on the basis of life experience
or years of service in a position or job. Recognized evaluative examinations
such as the advanced placement program or the college level examination program
may be used to evaluate prior learning.
§12.36.Complaints.
(a)
The Board may investigate a written complaint about a proprietary
institution.
(b)
If the allegations in the complaint, if found to be true,
do not appear to violate Board rules, standards, and/or guidelines, the Board
shall, within 10 days of receipt of the complaint:
(1)
notify the institution and the complainant in writing that
the allegations, if true, do not appear to violate Board rules, standards,
and/or guidelines and that the matter is concluded with the Board; or
(2)
refer the complainant to any other agency or organization
that may assist in resolving the complaint and provide to that agency or
organization any relevant information in the possession of the Board and
notify the institution of the referral and that the matter is concluded with
the Board.
(c)
If the allegations in the complaint, if found to be true,
constitute a violation of Board rules, standards, and/or guidelines, the
Board shall, within 10 days of receipt of the complaint:
(1)
notify the institution and the complainant in writing that
a complaint was received and that, if found to be true, would constitute
a violation of Board rules, standards, and/or guidelines;
(2)
advise the institution and the complainant of the particular
rules, standards, and/or guidelines that appear to have been violated;
(3)
provide the proprietary schools section at the Texas Workforce
Commission with a copy of the complaint and copies of all relevant correspondence;
and/or
(4)
refer the complainant to any other agency or organization.
(d)
Upon receipt of written notification from the Board under
subsection (c) of this section, a proprietary institution shall, within 15
days, provide the Board with a written response and any necessary supporting
documentation. The response shall bear the original signature of the institution's
chief executive officer or his/her designee.
(e)
The Board shall examine and evaluate the response to a
complaint under subsection (c) of this section and determine whether or not
further investigation is warranted. If, in the opinion of the Board, further
investigation is warranted, the Board may conduct interviews of students,
faculty, and/or any other persons who may possess relevant information, examine
institutional documents, files, and/or other records, examine course materials,
observe institutional activities, inspect facilities, and/or review any other
institutional activity that is relevant to the allegations in the complaint.
(f)
If, at the conclusion of any investigation, the Board determines
that Board rules, standards, and/or guidelines have been violated, the complainant
and the institution shall be notified in writing of the specific violations
and any corrective action, if warranted, required by the Assistant Commissioner
for Community and Technical Colleges.
(g)
If, at the conclusion of any investigation, the Board determines
that Board rules, standards, and/or guidelines have not been violated, the
Board shall notify the institution and the complainant in writing of its
findings and that the matter is concluded with the Board.
§12.37.Legal Proceedings.
(a)
A proprietary institution with a Certificate of Authority
must notify the Board if it becomes a defendant in any administrative, civil,
or criminal legal proceeding.
(b)
Notification shall be in writing and shall be delivered
to the Board not less than seven days after an agent of the institution is
served with process.
(c)
The institution shall furnish the Board with copies of
the original petition and response as soon as they become available.
(d)
At the conclusion of proceedings, the institution shall,
within 15 days, report the outcome to the Board in writing. The institution
may be required to furnish copies of all pleadings in the case.
§12.38.Exemption from the Texas Education Code, Chapter 132.
(a)
A proprietary institution that requests and is granted
an exemption by the Texas Workforce Commission from the Texas Education Code,
Chapter 132, shall not operate under the provisions of this chapter. Upon
becoming exempt, a degree-granting proprietary institution shall immediately:
(1)
apply for a certificate of authority to operate as a private
postsecondary educational institution according to the provisions of Chapter
5, Subchapter K, of this title (relating to Private Degree-Granting Institutions
Operating in Texas); or
(2)
cease granting degrees and relinquish the Certificate of
Authority to the Board.
(b)
If an exempt institution relinquishes its exempt status
and becomes licensed by the State of Texas to operate as a proprietary institution,
the institution shall apply for a Certificate of Authority as outlined under §12.23
of this title (relating to Application for a Certificate of Authority).
§12.39.Withdrawal of a Certificate of Authority.
(a)
A Certificate of Authority may be withdrawn by the Commissioner
if an agent of a proprietary institution with an approved associate degree
program:
(1)
knowingly violates one or more of the Board rules, regulations,
or policies;
(2)
after being notified of the violation, unknowingly violates
one or more of the Board rules, regulations, or policies, and fails to take
satisfactory corrective action;
(3)
fails to conduct all academic, technical, and administrative
matters pertaining to an approved associate degree program in a manner consistent
with Board rules, regulations, or policies;
(4)
is found to have engaged in any deceptive practice, misrepresentation
of fact, and/or fraud relating to the operation of the proprietary institution
or in dealing with students or the public;
(5)
is found to have engaged in any activity, conduct, and/or
behavior relating to the operation of the proprietary institution or in dealing
with students which is found by a court of law to be illegal and/or improper;
(6)
intentionally inhibits, obstructs, or interferes with,
either directly or indirectly, the official duties and/or activities of a
member of the Board staff and/or a person who has been appointed to represent
the Board for the purpose of conducting an on-site inspection of a proprietary
institution and/or inquiring into a complaint against that institution; or
(7)
intentionally harasses, causes to be harassed, or permits
harassment of a member of the Board staff and/or a person who has been appointed
to represent the Board while such individual(s) is/are on any property under
the control of the proprietary institution and is/are engaged in official
duties.
(b)
Upon receipt of satisfactory evidence, the Commissioner
may withdraw a Certificate of Authority for a cause other than those outlined
under subsection (a) of this section.
(c)
A Certificate of Authority is automatically withdrawn if
after receiving 60 days advance notification of the annual fee amount and
the date upon which the fee is due, a proprietary institution fails to remit
the annual fee by the due date.
(d)
The Commissioner shall provide notice to the institution
of any adverse decision under this subchapter. The decision of the Commissioner
shall be final unless the affected institution requests reconsideration of
the decision within 30 days of receipt of notice from the Commissioner. The
decision of the Commissioner upon reconsideration shall be the final decision
of the Board.
(e)
An institution affected by any final decision under this
subchapter may appeal that decision as provided in Chapter 1, Subchapter
B of this title (relating to Hearings and Appeals).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005062
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
19 TAC §§12.41-12.57
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Higher Education Coordinating Board or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Higher Education Coordinating Board proposes
the repeal of §§12.41-12.57 concerning Proprietary Schools (Basic
Standards). Specifically, the repeal of the rules eliminate unnecessary definitions;
eliminate duplication between the rules and the Guidelines for Instructional
Programs in Workforce Education given the institutions for implementation
of the rules; clarify the provisions governing institutional eligibility as
different from approval and revision of associate degree programs; include
the complaint procedure; align appeal procedures for any decision made by
Board staff, the Commissioner, or the Board itself with Chapter 1 of Board
rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules for
proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed repeal of the rules may be submitted to Dr. Don
W. Brown, Commissioner of Higher Education, Texas Higher Education Coordinating
Board, P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The repeal of the rules is proposed under Texas Education Code,
Chapter 132, Section 132.063, and Chapter 61, Subchapter G, which provides
the Texas Higher Education Coordinating Board with the authority to adopt
rules concerning Proprietary Schools (Basic Standards).
The proposed repeal of the rules affect Texas Education Code, Chapter 132,
Section 132.063 and Chapter 61, Subchapter G.
§12.41.Minimum Standards for Applied Associate Degrees.
§12.42.Demonstration of Program Need.
§12.43.Administrator Qualifications.
§12.44.Faculty Qualifications.
§12.45.Full-Time Faculty.
§12.46.Curriculum Requirements.
§12.47.General Education Requirements.
§12.48.Length of Programs.
§12.49.Facilities and Equipment.
§12.50.Library/Learning Resources.
§12.51.Student Services.
§12.52.Texas Academic Skills Program (TASP).
§12.53.Transfer of Credit.
§12.54.Graduation and Job Placement Rates.
§12.55.Representation of the A.O.S. Degree.
§12.56.Concurrent Instruction.
§12.57.Credit for Prior Learning.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005058
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
19 TAC §§12.71 - 12.85
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Higher Education Coordinating Board or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Higher Education Coordinating Board proposes
the repeal of §§12.71 - 12.85 concerning Proprietary Schools (Operational
Provisions). Specifically, the repeal of the rules eliminate unnecessary definitions;
eliminate duplication between the rules and the Guidelines for Instructional
Programs in Workforce Education given the institutions for implementation
of the rules; clarify the provisions governing institutional eligibility as
different from approval and revision of associate degree programs; include
the complaint procedure; align appeal procedures for any decision made by
Board staff, the Commissioner, or the Board itself with Chapter 1 of Board
rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules for
proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed repeal of the rules may be submitted to Dr. Don
W. Brown, Commissioner of Higher Education, Texas Higher Education Coordinating
Board, P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The repeal of the rules is proposed under Texas Education Code,
Chapter 132, Section 132.063, and Chapter 61, Subchapter G, which provides
the Texas Higher Education Coordinating Board with the authority to adopt
rules concerning Proprietary Schools (Operational Provisions).
The proposed repeal of the rules affect Texas Education Code, Chapter 132,
Section 132.063 and Chapter 61, Subchapter G.
§12.71.Multiple Site Program Approval.
§12.72.Program, Revision, Deactivation, and Closure.
§12.73.Contract Instruction.
§12.74.Institutional Evaluation.
§12.75.Evaluation of Program Effectiveness.
§12.76.Appeals Procedure.
§12.77.Accreditor Reports.
§12.78.School Closure.
§12.79.Change of Ownership.
§12.80.Exemption from Texas Education Code, Chapter 132.
§12.81.Withdrawal of Authorization to Grant Degrees by Board Action.
§12.82.Acknowledgment of Accreditation
§12.83.Assessment of Annual Fees.
§12.84.Complaints.
§12.85.Legal Proceedings.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005059
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
19 TAC §§12.41 - 12.46
The Texas Higher Education Coordinating Board proposes new §§12.41-
12.46 concerning Proprietary Schools (Associate Degree Programs). Specifically,
the new sections eliminate unnecessary definitions; eliminate duplication
between the rules and the Guidelines for Instructional Programs in Workforce
Education given the institutions for implementation of the rules; clarify
the provisions governing institutional eligibility as different from approval
and revision of associate degree programs; include the complaint procedure;
align appeal procedures for any decision made by Board staff, the Commissioner,
or the Board itself with Chapter 1 of Board rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules for
proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed new rules may be submitted to Dr. Don W. Brown,
Commissioner of Higher Education, Texas Higher Education Coordinating Board,
P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The new rules are proposed under Texas Education Code, Chapter
132, §132.063, and Chapter 61, Subchapter G, which provides the Texas
Higher Education Coordinating Board with the authority to adopt rules concerning
Proprietary Schools (Associate Degree Programs).
The proposed new sections affect Texas Education Code, Chapter 132, §132.063
and Chapter 61, Subchapter G.
§12.41.New Program Application.
In accordance with the Guidelines for Instructional Programs in Workforce
Education, each proprietary institution wishing to offer a new associate degree
program shall complete the following items and submit them to the Board's
Community and Technical Colleges Division:
(1)
Letter of Intent. The Letter of Intent shall be submitted
no less than 30, and not more than 180, days prior to the submission of the
Application for Approval of a New Workforce Program.
(2)
Application for Approval of a New Workforce Program (for
Proprietary Institutions). The Application shall be approved by the chief
executive officer and, if applicable, the governing board of the proprietary
institution. The Application shall be received by the Board staff no less
than three calendar months prior to the intended implementation date or approval
deadline for external accreditation, whichever occurs first.
(3)
Statement of Assurances (for Proprietary Institutions).
The Statement shall be approved by the chief executive officer and, if applicable,
the governing board of the proprietary institution, and submitted with the
Application for Approval of a New Workforce Program. The following criteria
are included in the Statement:
(A)
The institution has documented need for the proposed program
based on national, regional, and/or local economic forecasts applicable to
its target market area.
(B)
The institution has identified sufficient employment opportunities
within its target market area for the projected number of graduates, taking
into consideration the numbers of graduates of similar programs within its
target market area.
(C)
Instruction in basic workforce skills has been integrated
into the curriculum for the proposed program.
(D)
Each program award offers at least one of the following:
a capstone, an external learning experience, or eligibility to sit for a certification
or licensure examination.
(E)
All course and program prerequisites are identified on
the proposed curriculum outline and included in the credit/contact hour totals
for the program.
(F)
An enrollment management plan for the program is in place.
(G)
If applicable, the program satisfies all requirements of
relevant licensing authorities.
(H)
An advisory committee composed of representatives from
business and industry has been directly involved in the creation of the proposed
program.
(I)
Adequate funding is available to cover all program costs
for the first three years.
(J)
The institution is in good standing with its accreditor
and the Texas Workforce Commission.
(K)
The institution is not currently a defendant in a legal
proceeding or has notified the Board according to provisions in this chapter.
(L)
Written notice that the proposed program has been sent
to the appropriate Higher Education Regional Council(s).
(4)
Fee. The fee as outlined in the Guidelines for Instructional
Programs for Workforce Education for an Application for a New Workforce Education
Program must be submitted with the Application.
§12.42.New Program Approval.
(a)
The Board staff shall review the Application and accompanying
documentation for satisfactory fulfillment of the new program requirements
and procedures as outlined in the Guidelines for Instructional Programs in
Workforce Education. The staff shall confer with the proprietary institution
when additional information or clarification is needed.
(b)
The Assistant Commissioner for the Community and Technical
Colleges Division shall recommend associate degree programs to the Commissioner
for approval or disapproval or referral to the Board.
(c)
The Board delegates to the Commissioner final approval
authority for all associate degree programs that meet Board policies for approval
as outlined in the Guidelines for Instructional Programs in Workforce Education.
(d)
The Commissioner shall forward a program to the Board for
consideration at an appropriate quarterly meeting if either of the following
conditions is met:
(1)
proposed program is the subject of an unresolved grievance
or dispute between institutions.
(2)
The Commissioner has disapproved the proposed program and
the institution has requested a Board review at the next quarterly Board meeting.
§12.43.Program Revision and Closure.
(a)
Each proprietary institution requesting a program revision
must submit a completed Application for Program Revision and comply with the
Guidelines for Instructional Programs in Workforce Education.
(b)
A proprietary institution may close a program voluntarily
in accordance with evaluation procedures provided in the Guidelines for Instructional
Programs in Workforce Education.
(c)
Approval shall be automatically withdrawn by the Commissioner
for any associate degree program not implemented in accordance with Board
rules, regulations, or policies within 18 months of the date of approval.
§12.44.Contract Instruction.
Proprietary institutions may contract for specific instruction. All
contract instruction shall have education as its primary purpose. In addition,
(1)
courses offered under contractual agreements shall be consistent
with the educational purpose, mission, and goals of the program and institution;
and
(2)
courses offered under a contractual agreement shall remain
the responsibility of the contracting proprietary institution and shall be
of the same quality as other approved courses.
§12.45.Evaluation of Program Effectiveness.
(a)
Every program in which an associate degree is offered shall
be evaluated periodically according to procedures established by the Board.
(b)
The following evaluation elements shall be assessed in
terms of both quantitative and qualitative factors: mission, labor market
need, curriculum, enrollment, graduates, student placement, follow-up results,
facilities and equipment, instructional practices, student services, public
and private linkages, and qualifications of faculty and administrative personnel.
(c)
Board staff shall use the results of the program evaluation
to identify associate degree programs to be continued or recommended for closure.
(d)
Institutional agents shall develop a plan to correct the
deficiencies identified in the report of the on-site review team. Time limits
for correcting deficiencies shall be determined by the Assistant Commissioner
for Community and Technical Colleges. Board staff shall reevaluate the program
at the end of the established time period. If the identified deficiencies
have not been adequately and/or appropriately corrected as determined by the
Board staff, action may be taken to withdraw the institution's Certificate
of Authority as outlined under §12.39 of this title (relating to Withdrawal
of a Certificate of Authority).
§12.46.Appeals Procedure.
(a)
Contested decisions regarding program approval or revision
shall be reviewed with Board staff.
(b)
In instances where agreement is not achieved, the institution
may request a review by the Assistant Commissioner. The Assistant Commissioner
shall notify the institution of his or her decision within 30 working days
of receipt of the request for the review.
(c)
Within 30 days of receipt of the decision of the Assistant
Commissioner, the institution may appeal that decision to the Commissioner.
The decision of the Commissioner shall be the final decision of the Board.
(d)
An institution affected by any final decision under this
subchapter may appeal that decision as provided in Chapter 1, Subchapter B,
of this title (relating to Hearings and Appeals).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005063
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
19 TAC §§12.91 - 12.93
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Higher Education Coordinating Board or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Higher Education Coordinating Board proposes
the repeal of §§12.91 - 12.93 concerning Proprietary Schools (Approval
of Applied Associate Degree Programs). Specifically, the repeal of the rules
eliminate unnecessary definitions; eliminate duplication between the rules
and the Guidelines for Instructional Programs in Workforce Education given
the institutions for implementation of the rules; clarify the provisions governing
institutional eligibility as different from approval and revision of associate
degree programs; include the complaint procedure; align appeal procedures
for any decision made by Board staff, the Commissioner, or the Board itself
with Chapter 1 of Board rules.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges
has determined that for the first five-year period the rules are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the rules.
Dr. Barron has also determined that for the first five years the rules
are in effect, the public benefit will be more precise and clearer rules for
proprietary institutions resulting in more efficient and effective oversight
of proprietary institutions. There will be no effect on state and local government
or small businesses. There is no anticipated economic cost to the persons
who are required to comply with the rules as proposed.
Comments on the proposed repeal of the rules may be submitted to Dr. Don
W. Brown, Commissioner of Higher Education, Texas Higher Education Coordinating
Board, P.O. Box 12788, Capitol Station, Austin, Texas 78711.
The repeal of the rules is proposed under Texas Education Code,
Chapter 132, §132.063, and Chapter 61, Subchapter G, which provides the
Texas Higher Education Coordinating Board with the authority to adopt rules
concerning Proprietary Schools (Approval of Applied Associate Degree Programs).
The proposed repeal of the rules affect Texas Education Code, Chapter 132, §132.063
and Chapter 61, Subchapter G.
§12.91.Purpose.
§12.92.New Program Approval.
§12.93.Action and Order of the Board.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 21, 2000.
TRD-200005060
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 27, 2000
For further information, please call: (512) 427-6162
Subchapter AA. RECIPROCAL EDUCATIONAL EXCHANGE PROGRAM
Chapter 12.
PROPRIETARY SCHOOLS
Subchapter B. GENERAL PROVISIONS
Subchapter B. BASIC STANDARDS
Subchapter C. OPERATIONAL PROVISIONS
Subchapter C. ASSOCIATE DEGREE PROGRAMS
Subchapter D. APPROVAL OF APPLIED ASSOCIATE DEGREE PROGRAMS
Chapter 21.
STUDENT SERVICES