Proposed Rules Title 19

TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS

SUBCHAPTER EE. COMMISSIONER'S RULES CONCERNING THE COMMUNITIES IN SCHOOLS PROGRAM

19 TAC §§89.1501 - 89.1503, 89.1505, 89.1507, 89.1509, 89.1511

The Texas Education Agency (TEA) proposes amendments to §89.1501 and §89.1502 and new §§89.1503, 89.1505, 89.1507, 89.1509, and 89.1511, concerning the Communities In Schools (CIS) program. Sections 89.1501 and 89.1502 establish definitions and the funding formula for local CIS programs. The proposed amendments and new sections would implement the new requirements of the Texas Education Code (TEC), §33.154, as amended by House Bill (HB) 1609, 80th Texas Legislature, 2007, which requires the commissioner of education by rule to develop and implement policies concerning the program.

The CIS program is a statewide youth dropout prevention program that uses a case management model to serve students who are at risk of dropping out of school or engaging in delinquent conduct, including students who are in family conflict or emotional crisis. Through 19 TAC Chapter 89, Subchapter EE, adopted to be effective July 4, 2005, the commissioner exercised rulemaking authority to establish definitions and an equitable funding formula for local CIS programs, in accordance with the TEC, §33.156.

HB 1609, 80th Texas Legislature, 2007, amended the TEC, §33.154, requiring the commissioner to adopt rules to implement policies concerning the responsibility of the TEA in encouraging local businesses to participate in local CIS programs, the responsibility of the TEA in obtaining information from participating school districts, and the use of federal or state funds available to the TEA for programs of this nature.

The commissioner is also required to establish state performance goals, objectives, and measures for the program that include improvement in student behavior and academic achievement as well as promotion, graduation, retention, and dropout rates. TEC, §33.154, gives the commissioner authority to withhold funding from programs that consistently fail to achieve the performance goals, objectives, and measures.

In addition to rule action required by HB 1609, staff in the TEA division responsible for state funding have identified changes needed to the current process for the allocation of financial resources. The recommended changes are included in the proposed revisions.

The proposed revisions to 19 TAC Chapter 89, Subchapter EE, would amend the two existing rules and add new rules as follows.

Section 89.1501, Definitions, would be amended to add definitions for case-managed student, eligible student, and local CIS program. Definitions for fully-developed program and funding formula would be deleted. Other existing definitions would be modified for clarification.

Section 89.1502, Funding, would be amended to specify that the current funding formula would continue to apply to the CIS program prior to school year 2009-2010. This amendment would clarify that the current funding process will be maintained for the upcoming 2008-2009 school year. The section title would also be updated accordingly.

Section 89.1503, Funding Beginning with School Year 2009-2010, would be added to establish funding allocations to local CIS programs that include the distribution of financial resources in line with weighted average daily attendance (WADA).

Proposed new sections would also be added to address provisions for grant application eligibility (§89.1505), determination of the number of case-managed students each local CIS program will serve (§89.1507), and provisions for encouraging local business participation and obtaining information from participating school districts (§89.1509). A new section would also be added to establish performance standard expectations and revocation of grant award (§89.1511).

Proposed new 19 TAC §89.1509 would require school districts with CIS programs to provide information and data for students whose parents have authorized education records to be shared with CIS programs and the TEA. In addition, proposed new 19 TAC §89.1511 would add specific requirements for a program that fails to meet performance standards in accordance with the grant application. Such a program would be required to submit letter of explanation and an improvement plan.

Barbara Knaggs, associate commissioner for state initiatives, has determined that for the first five-year period the amendments and new sections are in effect there will be no additional fiscal implications for state government as a result of enforcing or administering the amendments and new sections. While the overall statewide allocation will not change, there will be a minor fiscal impact for local government. It is estimated that some school districts will see an increase or decrease of less than 10% of funds currently allocated. Funding is established by a rider in the General Appropriations Act. The formulas for allocating funds for the CIS program are being revised to more closely align with statutory language.

Ms. Knaggs has determined that for each year of the first five years the amendments and new sections are in effect the public benefit anticipated as a result of enforcing the rule actions will be specific performance goals that will support student improvement in academics, attendance, behavior, and graduation to prepare students for post-secondary life in an effort to reduce the dropout rate. In addition, the proposed rule actions would address accountability in program performance and support actions that may be necessary to withhold funding from non-performing programs, which ensures the effective use of state funds. There is no anticipated economic cost to persons who are required to comply with the proposed amendments and new sections.

There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

The public comment period on the proposal begins August 8, 2008, and ends September 8, 2008. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register on August 8, 2008.

The amendments and new sections are proposed under the Texas Education Code, §33.154, which authorizes the commissioner to adopt rules to implement policies concerning the Communities In Schools program, and §33.156, which authorizes the agency to develop and implement an equitable formula for the funding of local Communities In Schools programs.

The proposed amendments and new sections implement the Texas Education Code, §§33.151, 33.152, and 33.154-33.159.

§89.1501.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Case-managed student--A student who is identified as at-risk according to Communities In Schools (CIS) eligibility requirements as identified in the grant application and who is assessed to be in need of CIS services to address academic, attendance, behavior, retention, graduation, or social service needs according to the requirements in the grant application.

(2) [~~(1)~~] Communities In Schools [~~(CIS)~~ ] program--The statewide exemplary youth dropout prevention program authorized under the Texas Education Code (TEC), Chapter 33, Subchapter E (Communities In Schools Program) [, that provides effective assistance to Texas public school students who are at risk of dropping out of school or engaging in delinquent conduct, including students who are in family conflict or emotional crisis].

[~~(2) Developing program--A local CIS program that has received funding for up to four fiscal years, including the fiscal year in which funding was provided to develop a business plan.~~]

(3) Developing program--An entity funded through the replication process for the purposes of establishing and implementing a local CIS program within a four-year period following the requirements in the grant application.

(4) Eligible student--A student who exhibits delinquent conduct as defined by the Texas Family Code, §51.03, or a student at risk of dropping out of school as defined under the TEC, §33.151(4)(A)-(C).

(5) [~~(3)~~] Expansion--The process of a [~~fully-developed~~ ] local CIS program establishing CIS services on a new school campus or in a new school district or expanding services to serve additional students on existing campuses, resulting in an increase of students served.

(6) [~~(4)~~] Fiscal year--A one-year period beginning on September 1 of a calendar year and continuing through August 31 of the next calendar year.

[~~(5) Fully-developed program--A local CIS program that has been in existence for more than four fiscal years or has opted to be treated as a fully-developed program for funding purposes.~~]

[~~(6) Funding formula--A formula used to determine the funding allocation to each program based on funds appropriated by the General Appropriations Act.~~]

(7) Local CIS program--A Communities In Schools 501(c)(3) non-profit organization established in accordance with the program model and state guidelines authorized by state law to operate for the purposes stated in paragraph (2) of this section and meeting all the requirements in the grant application for establishing a local CIS program.

(8) [~~(7)~~] Replication--The process of establishing a new local CIS program in an area of the state designated by the Texas Education Agency to be an area of critical need for a local CIS program.

(9) [~~(8)~~] Special initiative--The implementation of a specialized activity to address dropout prevention within the context of the CIS model.

§89.1502.Funding Prior to School Year 2009-2010 .

(a) Equitable funding formula. As authorized by the Texas Education Code (TEC), §33.156, the Texas Education Agency (TEA) shall establish the funding of local Communities In Schools (CIS) programs in accordance with this section. The provisions of this section apply to funding of local CIS programs prior to school year 2009-2010. Local CIS program funding beginning with school year 2009-2010 shall be in accordance with provisions established in §89.1503 of this title (relating to Funding Beginning with School Year 2009-2010).

(b) Developing programs. Developing programs shall receive a specified funding amount each year for no more than four years, including the first-year start up funding, after which time they shall become fully-developed programs and their funding shall be determined by the funding formula established under subsection (c) of this section. Prior to the expiration of four years, a developing program may request to be considered as a fully-developed program in which the funding would then be determined under subsection (c)(1)-(3) of this section if approved by the TEA.

(c) Fully-developed programs. Fully-developed programs shall receive a specified funding amount each year to be allocated as set forth in paragraphs (1)-(3) of this subsection. The TEA may choose, for the purpose of minimizing disruption in services due to changes in funding allocation, to limit the annual amount of changes in funding allocation from one biennium to the next. This may include limiting the increase or decrease from the prior year funding to an amount no less than 5.0% and no more than 25% of the change produced by this subsection and/or establishing minimum and maximum funding amounts. The TEA shall allocate an amount of funds available for distribution based on the following criteria:

(1) an equal base amount of funds, as determined by the TEA;

(2) no less than 50% nor more than 80% of the specified funding amount based on a ratio of the relative proportion of students contracted by the program relative to the total number of students contracted by all fully-developed CIS programs; and

(3) no less than 5.0% nor more than 15% of the specified funding amount on the basis of the weighted financial resources of the individual communities and school districts, if less than the state average.

(A) Weighted financial resources will be determined using the following data elements for the first year of the preceding biennium:

(i) taxable property values determined in accordance with Government Code, Chapter 403, Subchapter M, for school districts listed in each program's contract;

(ii) students in membership, as reported by the school districts and verified by the TEA, in school districts listed in each program's contract; and

(iii) the number of economically disadvantaged students, as reported by the school districts and verified by the TEA, in school districts listed in each program's contract.

(B) Weighted financial resources of individual communities and school districts will be determined by:

(i) calculating the ratio of the number of economically disadvantaged students in each district divided by the total number of economically disadvantaged students in the program;

(ii) dividing the ratio of taxable property value of the district by the number of students in membership at the district;

(iii) multiplying the ratios calculated in clauses (i) and (ii) of this subparagraph for each district; and

(iv) summing the results of clause (iii) of this subparagraph for each program.

(d) CIS program replication and expansion. For program growth, the TEA may use any one or a combination of the following methods [~~guidelines~~].

(1) Replication. The TEA may determine and retain a base funding amount for replication of the CIS program in areas of the state that are not served by a participating local CIS program. Replication funds shall be made available through a competitive request for application [~~proposal~~] process. First-year replication funding may be a one-time planning grant for the development of a business plan. Any funds not used for replication may be used for expansion.

(2) Expansion. The TEA may determine and retain a funding amount for expansion of the CIS program using any one or a combination of the funding methods specified in subparagraphs (A)-(D) of this paragraph. Funds allocated for expansion will become part of the funding allocation.

(A) [~~(2)~~] Proportion of at-risk students served. An amount determined by the TEA may be distributed to each individual CIS program based on the relative proportion of the number of at-risk students, as defined by the TEC, §29.081, attending school districts served or new districts contracted to be served by the respective program area compared to the number of at-risk students in all districts served by CIS.

(B) [~~(3)~~] Proportion of total students contracted. An amount determined by the TEA may be distributed to each individual CIS program based on a ratio of the relative proportion of students contracted by the respective program relative to the total number of students contracted by all fully-developed CIS programs.

(C) [~~(4)~~] Program allocation. An amount determined by the TEA may be distributed to each individual CIS program based on the ratio of the respective individual program's total allocation relative to the total amount allocated to all fully-developed CIS programs.

(D) [~~(5)~~] Competitive process. Funds may be distributed through a competitive request for application [~~proposal~~] process.

(e) Other funding. Should [~~additional and/or~~] other funding sources become available for CIS, these funds may be made available for [~~local CIS programs for~~ ] replication, expansion, and/or special initiatives and allocated through such processes as the TEA deems appropriate to include the funding methods [ ~~guidelines and determinations delineated~~] in subsection (d) of this section.

(f) Special initiatives. The TEA may partner or contract with other agencies or entities for the purpose of CIS to implement specialized activities or programs that address dropout prevention. Selection of local CIS programs for participation in the initiative may be determined by the TEA and partner, or contractor, depending on the variables of the initiative. Local CIS programs will have the discretion of whether to participate in the special initiatives.

(g) Funding plan. Each local CIS program shall develop a funding plan which ensures that the level of service is maintained if state funding is reduced.

§89.1503.Funding Beginning with School Year 2009-2010.

(b) Developing programs.

(1) A developing program shall receive a funding amount each year for no more than four years, including the first-year start up funding.

(2) A developing program that has met all the requirements for establishing a local CIS program before the fourth year may request to be considered as a local CIS program for funding determined under subsection (c)(1)-(3) of this section if approved by the TEA.

(c) Allocation. Local CIS programs shall receive a funding amount each year to be allocated based on the following criteria:

(1) an equal base amount of funds, as determined by the TEA;

(2) no less than 50% nor more than 80% of the specified funding amount based on the relative proportion of the number of case-managed students to be served by each local CIS program to the total number of case-managed students to be served by all local CIS programs; and

(3) no less than 5.0% nor more than 15% of the specified funding amount based on the weighted financial resources of the individual communities and school districts, if less than the average financial resources of all school districts participating in the program.

(A) Weighted financial resources will be determined using the following data elements for the first year of the preceding biennium:

(i) taxable property values determined in accordance with Government Code, Chapter 403, Subchapter M, for school districts listed in each program's current grant application;

(ii) weighted average daily attendance (WADA), as reported by the school districts and verified by the TEA, in school districts listed in each program's current grant application; and

(iii) the number of eligible students at the campus level, as reported by the school districts and verified by the TEA, in school districts listed in each program's current grant application.

(B) Financial resource allocation will be determined by:

(i) calculating the weighted average property value per WADA for each local CIS program;

(ii) calculating the ratio of the number of eligible students for each local CIS program divided by the total number of eligible students in all local CIS programs;

(iii) calculating the average taxable property value per WADA for each local CIS programs; and

(iv) allocating funds based on the eligible student ratios to participating local CIS programs with an average taxable property value per WADA lower than the average for all participating local CIS programs.

(4) The TEA may choose, for the purpose of minimizing disruption in services as a result of changes in funding allocation, to limit the annual amount of changes in funding allocation from one biennium to the next. This may include limiting the increase or decrease from the prior-year funding to an amount no less than 5.0% and no more than 25% of the change produced by the provisions of this subsection and/or by establishing minimum and maximum funding amounts.

(5) If there is no increase in the funds appropriated by the General Appropriations Act for the state CIS program, the TEA may choose to maintain CIS program funding allocations at the current level.

(d) CIS program replication and expansion. Should the legislature authorize an increase in the funds appropriated for the state CIS program, the TEA may designate an amount of the increase to be reserved for replication and/or expansion.

(1) Replication. The TEA may determine and retain a funding amount for replication of the CIS program in areas of the state that are not served by a participating CIS program. Replication funds may be made available through a competitive request for application process or through any other process the TEA deems necessary. First-year replication funding may be a one-time planning grant for the development of a business plan. Any funds not used for replication may be used for expansion.

(A) Proportion of eligible students served. An amount determined by the TEA may be distributed to each local CIS program based on the relative proportion of the number of eligible students attending school districts served or new districts to be served by the respective program to the number of eligible students in all districts served by CIS.

(B) Proportion of total case-managed students. An amount determined by the TEA may be distributed to each local CIS program based on the relative proportion of the number of case-managed students as identified in the current year's grant application for each local CIS program to the total number of case-managed students for all CIS programs.

(C) Program allocation. An amount determined by the TEA may be distributed to each local CIS program based on the ratio of the total amount of grant funding allocated to the local CIS program to the total amount of grant funding allocated to all local CIS programs.

(D) Competitive process. Funds may be distributed through a competitive request for application process.

(E) Decline of expansion funds. If a local CIS program declines to accept grant funds for the expansion of a program, the total amount of grant funding available for expansion will be redistributed in accordance with this paragraph among local CIS programs participating in expansion activities.

(e) Use of federal or state funds. Pursuant to the TEC, §33.154(a)(7)(C), the TEA will make available to local CIS programs and developing programs information regarding state and federal grant opportunities.

(f) Other funding. Should other funding sources become available for CIS, these funds may be made available for replication, expansion, and/or special initiatives and allocated through such processes as the TEA deems appropriate to include the funding methods in subsection (d) of this section.

(g) Special initiatives. If the TEA partners or contracts with other agencies or entities to implement special initiatives, activities, or programs that support dropout prevention efforts, local CIS programs will have the discretion of whether to participate in the special initiatives. Selection of local CIS programs for participation may be determined by the TEA and partner, or contractor, depending on the variables of the initiative.

(h) Funding plan. Each local CIS program shall develop a funding plan that ensures that the level of service is maintained if state funding is reduced.

§89.1505.Eligibility and Grant Application.

(a) Applicants eligible to receive grant funds are:

(1) as specified in the Texas Education Code, §33.152, local Communities In Schools (CIS) programs established under the Texas Labor Code, Chapter 305, as it existed on August 31, 1999, and its predecessor statue, the Texas Unemployment Compensation Act (Article 5221b-9d, Vernon's Texas Civil Statutes); and

(2) developing programs as defined in §89.1501(3) of this title (relating to Definitions).

(b) A local CIS program or a developing program must submit a grant application each year in accordance with procedures established by the commissioner of education.

(c) To remain eligible for grant funding, a local CIS program or a developing program must meet all deadlines and requirements set forth in §89.1511 of this title (relating to to Performance Standards and Loss of State Grant Funding) and in the grant application.

§89.1507.Case-Managed Students.

(a) Each local Communities In Schools (CIS) program is required to serve each year a specific number of case-managed students, as defined in §89.1501(1) of this title (relating to Definitions). The specific number of case-managed students to be served will be identified in each annual grant application.

(b) Each local CIS program may be required to serve an increased number of case-managed students if the Texas Education Agency (TEA) receives an increase in the funds appropriated in the General Appropriations Act for the CIS program and/or if the performance measure related to the number of case-managed students served is increased.

(c) To determine an increase in the number of case-managed students to be served by each local CIS program, the TEA will use the number of case-managed students as determined in the current year's grant application and apply one of the following calculations:

(1) the relative proportion of the number of eligible students attending school districts served or to be served by the respective local CIS program to the number of eligible students in all districts served or to be served by all CIS programs;

(2) the relative proportion of the specified number of case-managed students for the respective local CIS program as identified in the current year's grant application to the total number of case-managed students for all CIS programs; or

(3) the ratio of the total amount of grant funding allocated to the respective local CIS program to the total amount of grant funding for all CIS programs.

§89.1509.Other Provisions.

(a) Pursuant to the Texas Education Code (TEC), §33.154(a)(7)(A), the Texas Education Agency (TEA) will develop an outreach plan in collaboration with the Communities In Schools (CIS) State Advisory Committee that includes outreach to local businesses.

(b) Pursuant to the TEC, §33.154(a)(7)(B), each school district that participates in a CIS program shall provide to the local CIS or developing program necessary student information and data for students whose parents have authorized in writing that educational records be shared with the CIS program and the TEA. Such information and data may include records on students' academic achievement, promotion, attendance, and assessment. A local CIS or developing program may provide this information and data to the TEA in accordance with the grant application.

§89.1511.Performance Standards and Loss of State Grant Funding.

(a) Performance standards for a local Communities In Schools (CIS) program regarding the number of case-managed students served.

(1) A local CIS program that fails to serve the number of case-managed students indicated in its grant application by the end of the school year of any given year will receive grant funding based only on the number of case-managed students the program actually served in that given year.

(2) Following the end of a given school year (Year 1), a local CIS program that fails to serve the number of case-managed students identified in its grant application must submit to the Texas Education Agency (TEA) a letter of explanation detailing the reasons the local CIS program did not serve the number of case-managed students indicated in its grant application. Additionally, a Program Improvement Plan (PIP) detailing how the CIS program will reach the Year 1 target by the end of the second school year (Year 2) is required. The PIP must include the following:

(A) local program contact information;

(B) the number of case-managed students listed in the grant application;

(D) a list of the proposed strategies and initiatives that will be implemented to meet the case-managed student target;

(E) a list of the timelines for each proposed strategy and initiative; and

(F) a list of fiscal, logistical, and human resources to be used to meet the case-managed student target.

(3) A local CIS program that fails to meet the Year 1 target for case-managed students in Year 2 will:

(A) receive payment only for the number of case-managed students the program actually served;

(B) have its grant application modified to reflect a decreased number of case-managed students and decreased funding for Year 3; and

(4) A local CIS program placed on probation:

(A) must update its PIP to show how it will modify its program to meet the Year 3 case-managed student target; and

(B) will not qualify for any increases in grant awards. The commissioner may waive this requirement if the local CIS program fails to meet its case-managed student target as a result of circumstances, such as a natural disaster, beyond the program's control.

(5) A local CIS program that fails to meet its Year 3 case-managed student target by the end of Year 3 may have its grant award non-renewed or revoked.

(6) A local CIS program that successfully reaches its Year 3 case-managed student target at the end of Year 3 will be removed from probation.

(7) A local CIS program may have its grant award non-renewed or revoked if it fails to meet its case-managed student target as identified in the grant application for four years out of a five-year period.

(b) Performance standards for a local CIS program regarding state targets in academic achievement, attendance, behavior, dropout rates, graduation, and promotion/retention.

(1) In accordance with the Texas Education Code (TEC), §33.154(a)(2), performance standards are established for local CIS programs in the objective areas of academic achievement, attendance, behavior, dropout rates, graduation, and promotion/retention.

(2) Each local CIS program must meet the performance standards stated in its grant application each year.

(3) The TEA shall notify local CIS programs that did not meet performance standards in any objective area, within a 5.0% variance, following the end of each school year.

(4) A local CIS program that fails to meet performance standard(s) in any objective area within a 5.0% variance must submit to the TEA a letter of explanation detailing the reasons the program was unable to meet state established performance standard(s). Additionally, a PIP detailing how the CIS program will reach the performance standard by the end of the next grant year period is required. The PIP shall include the following:

(A) local program contact information;

(B) a list of the objective area(s) and the performance standard(s) as listed in the grant application;

(D) a list of the proposed strategies and initiatives that will be implemented to meet the performance standard(s) that were not met;

(E) a list of the timelines for each proposed strategy and initiative; and

(F) a list of fiscal, logistical, and human resources to be used to reach the performance standard(s).

(5) The TEA will review PIPs within 30 days of receipt.

(6) A local CIS program that fails to meet performance standards for Year 2 or two consecutive years must submit an updated PIP for approval by the TEA and will be placed on probation for Year 3.

(7) A local CIS program placed on probation:

(A) must update its PIP to show how it will modify its program to meet the Year 3 performance standards; and

(B) will not qualify for any increases in grant awards. The commissioner may waive this requirement if the local CIS program fails to meet its performance standards as a result of circumstances, such as a natural disaster, beyond the program's control.

(8) A local CIS program that fails to meet its Year 3 performance standards by the end of Year 3 may have its grant award non-renewed or revoked.

(9) A local CIS program may have its grant award non-renewed or revoked if it fails to meet its performance standards as identified in the grant application for four years out of a five-year period.

(c) Performance standards for a developing program. A developing program that does not meet the requirements for establishing a local CIS program as specified in the request for application may have its grant funding non-renewed or revoked in accordance with subsection (d) of this section.

(d) Revocation of grant award.

(1) The commissioner may deny renewal or revoke the grant award of a local CIS program based on any of the following:

(A) failure to serve the number of case-managed students identified in its grant application for three consecutive years;

(B) failure to meet performance standards within a 5.0% variance as identified in the local CIS program's grant application for three consecutive years; or

(C) consistently failing to serve the target number of case-managed students and meet the performance standards within a 5.0% variance as identified in its grant application for four years out of a five-year period.

(2) The commissioner may deny renewal or revoke the grant award of a developing program based on any of the following:

(A) non-compliance with application assurances;

(B) lack of program success as evidenced by progress reports and program data;

(D) failure to provide accurate, timely, and complete information as required by the TEA to evaluate the effectiveness of the developing program.

(3) A decision by the commissioner to deny renewal or revoke authorization of a grant award is final and may not be appealed.

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 25, 2008.

TRD-200803794

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: September 7, 2008

For further information, please call: (512) 475-1497

CHAPTER 129. STUDENT ATTENDANCE

SUBCHAPTER AA. COMMISSIONER'S RULES

19 TAC §129.1023, §129.1027

The Texas Education Agency (TEA) proposes an amendment to §129.1023 and §129.1027, concerning student attendance. Section 129.1023 addresses provisions related to student attendance accounting standards. Section 129.1027 establishes requirements for the Optional Flexible School Day Program (OFSDP). The proposed amendment to §129.1023 would correct a statutory reference. The proposed amendment to §129.1027 would remove the requirement that applications for OFSDP be submitted 90 days before the start date of the program, delete an expired provision, and make minor technical corrections throughout the rule.

Through 19 TAC §129.1023, adopted to be effective May 10, 2001, the commissioner exercised rulemaking authority relating to student attendance accounting standards. In accordance with the Texas Education Code (TEC), §42.004, the rule requires school districts to adhere to the student attendance accounting standards established under 19 TAC §129.21 and the TEC, §42.004. The rule also establishes how the standards are disseminated and what aspects of attendance accounting they cover. In addition, the rule allows Foundation School Program allotments to be revised as a result of TEA investigations of student attendance accounting data.

As a result of the rule review conducted in June 2008, an amendment to §129.1023, Student Attendance Accounting Standards, is proposed to correct a statutory reference in subsection (b).

Through 19 TAC §129.1027, adopted to be effective July 4, 2007, the commissioner exercised rulemaking authority relating to the OFSDP. In accordance with the TEC, §29.0822, the rule establishes definitions, describes the program's application process, and explains program requirements related to student eligibility, student attendance, funding, program operation, district performance reviews, and program evaluation. The rule also describes the terms for revocation or denial of renewal of program authorization.

As a result of the rule review conducted in June 2008, an amendment to §129.1027, Optional Flexible School Day Program, is proposed to reflect updates to the program. The updates would include the removal of the requirement in subsection (c) that applications for the OFSDP be submitted 90 days before the start date of the program and the deletion of an expired provision in subsection (c) specific to the 2006-2007 school year. In addition, subsection (a) would be renumbered to reflect the deletion of two definitions, and minor technical corrections would be made throughout the section to correct references and word usage.

Adam Jones, deputy commissioner for finance and administration, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments.

Mr. Jones has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the amendments will be a corrected statutory reference in rule, the deletion of expired provisions from rule, and the removal of the overly burdensome requirement that applications for the OFSDP be submitted 90 days before the start date of the program. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

The amendments are proposed under the Texas Education Code, §29.0822, which authorizes the commissioner to adopt rules to administer the Optional Flexible School Day Program, and §42.004, which authorizes the commissioner, in accordance with rules of the State Board of Education, to take such action and require such reports consistent with TEC, Chapter 42, as may be necessary to implement and administer the Foundation School Program.

The proposed amendments implement the Texas Education Code, §29.0822 and §42.004.

§129.1023.Student Attendance Accounting Standards.

(a) The student attendance accounting standards established by the commissioner of education under §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes) and Texas Education Code (TEC), §42.004, shall be used by school districts and charter schools to maintain records and make reports on student attendance and student participation in special programs. These student attendance accounting standards shall be annually published in official Texas Education Agency (TEA) publications. These publications shall be widely disseminated and cover the following procedures:

(1) description of the Foundation School Program (FSP) eligibility requirements of all students;

(2) prescription of the minimum standards for all attendance accounting systems, whether manual or automated;

(3) listing of the documentation requirements for attendance audit purposes;

(4) specifications of the minimum standards for systems that are entirely functional without the use of paper; and

(5) details of the responsibilities of all district personnel involved in student attendance accounting.

(b) FSP allotments may be revised as a result of investigative activities by the TEA division responsible for school financial audits, as authorized under TEC, §§ 42.255, 44.008, and 44.010 [ ~~, and 45.255~~].

§129.1027.Optional Flexible School Day Program.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

~~[(1) Agency--Texas Education Agency.]~~

(1) [~~(2)~~] Campus--For the purposes of this section, a campus is an organization that provides instructional services to students in Grades 9-12, maintains a separate budget, and has an administrator whose primary duty is the full-time administration of the campus.

~~[(3) Commissioner--Commissioner of education.]~~

(2) [~~(4)~~] Instructional contact hours--For purposes of this section, instructional contact hours are the hours spent learning the curriculum under the direct supervision of an educator meeting the qualifications of the State Board for Educator Certification or the employing charter school.

(3) [~~(5)~~] Optional Flexible School Day Program (OFSDP)--Authorized under the Texas Education Code (TEC), §29.0822, a program approved by the commissioner of education to provide flexible hours and days of attendance for eligible students in Grades 9-12, as defined in subsection (b) of this section.

(4) [~~(6)~~] School district--For the purposes of this section, the definition of a school district includes an open-enrollment charter school.

(5) [~~(7)~~] School district board of trustees--For the purposes of this section, the definition of a school district board of trustees includes a charter holder board.

(6) [~~(8)~~] School year--For funding purposes, a school year cannot exceed 1,080 instructional hours in a 12-month consecutive period as adopted by the school district board of trustees.

(b) Student eligibility. A student is eligible to participate in an OFSDP if:

(1) the student is enrolled in Grade 9, 10, 11, or 12 and at least one of the following conditions is satisfied:

(A) the student is at risk of dropping out of school, as defined by the TEC, §29.081;

(B) the student is attending a campus implementing an innovative redesign, as defined by the TEC, §39.132; or

(2) either:

(A) the student and the student's parent, or person standing in parental relation to the student, agree in writing to the student's participation if the student is less than 18 years of age and not emancipated by marriage or court order; or

(B) the student agrees in writing to participate if the student is 18 years of age or older or has otherwise attained legal status as an adult by reason of marriage or court order.

~~[(1) Application process.]~~

(1) [~~(A)~~] The Texas Education Agency (TEA) [ ~~Agency~~] shall make available to each eligible school district an application form for initial approval or renewal that must be completed and submitted annually to the TEA [~~Agency~~] for approval.

(2) [~~(B)~~] The board of trustees of a school district must approve the application. The board of trustees of a school district must include the OFSDP as an item on a regular agenda for a board meeting providing options for public input concerning the proposed application before applying to operate an OFSDP.

(3) [~~(C)~~] A school district must submit an application in accordance with instructions provided by the TEA [~~Agency~~].

(4) [~~(D)~~] As part of the application process, a school district shall include the following information: implementation plan description, staff plans, schedules, and student attendance accounting security procedures and documentation.

(5) [~~(E)~~] The school district must have submitted the required annual audit report for the immediate prior fiscal year to the TEA [~~Agency~~] division responsible for financial audits. The annual audit must be determined by the TEA [~~Agency~~] to be in compliance with applicable audit standards.

(6) [~~(F)~~] The commissioner may consider academic and financial performance at a campus or a district when reviewing application qualifications.

(7) [~~(G)~~] The TEA [~~Agency~~ ] may defer or reject an application based on pending or final audit of data submitted, irregularities in assessment administration, accreditation status, accountability ratings, or sanctions under the TEC, Chapter 39.

(8) [~~(H)~~] The TEA [~~Agency~~ ] may grant or reject an entire application or grant or reject any campus submitted on an application.

(9) [~~(I)~~] The TEA [~~Agency~~ ] will notify each applicant of its approval or nonapproval [ ~~non approval~~] to operate an OFSDP.

[(2) Participation in 2006-2007 school year. For the 2006-2007 school year, a school district must have received notice of approval from the Agency prior to participating in the program. This paragraph expires August 31, 2007.]

(10) [(3) Participation in 2007-2008 and subsequent school years. For the 2007-2008 school year and subsequent school years, a school district must submit an initial or renewal application 90 days prior to the start date of the program.] The school district must receive notice of approval to continue or begin participation in the program.

(d) Attendance. A school district must report student OFSDP attendance in a manner provided by the TEA [~~Agency~~] in the Student Attendance Accounting Handbook adopted under §129.1025 of this title (relating to Adoption By Reference: Student Attendance Accounting Handbook). Funding for attendance in an OFSDP is proportionate to attendance in a full-time program meeting the requirements of the TEC, §25.081 and §25.082.

(e) Funding under the TEC, Chapters 41, 42, and 46. Attendance in an OFSDP that is not authorized or does not meet the requirements of the TEC, §29.0822, or this section is not eligible for state funding.

(f) Extracurricular participation. A student enrolled in an OFSDP may participate in a competition or activity sanctioned by the University Interscholastic League (UIL) only if the student meets all UIL eligibility criteria.

(g) Conditions of program operation. A school district and campus operating an OFSDP must comply with all assurances in the program application. Approved OFSDPs will be required to submit annually one progress report on a form to be provided by the TEA [ ~~Agency~~] and signed by the district superintendent or executive officer. The data in the progress reports must be disaggregated by ethnicity, age, gender, and socioeconomic status. Approved OFSDPs will submit data as stated in the assurances section of the program application.

(1) A school district with a campus operating an OFSDP must reapply annually to continue to operate an OFSDP to verify that student eligibility requirements specified in subsection (b) of this section are met.

(2) A student participating in an OFSDP must take all assessment instruments as defined by the TEC, §39.023, during the regularly scheduled administration periods.

(3) A school district operating an OFSDP must conduct audits every other year of the OFSDP student attendance processes, procedures, and data quality to maintain eligibility for the program. Audits may be conducted by an internal auditor, external auditor, or an authorized school district administrator responsible for student attendance accounting.

(4) The commissioner may consider academic performance and student attendance accounting documentation and procedures to continue district or campus eligibility for the OFSDP.

(h) School district annual performance review.

(1) Annually, each school district shall review its progress in relation to the performance indicators required by this subsection. Progress should be assessed based on information that is disaggregated with respect to race, ethnicity, gender, and socioeconomic status.

(A) A school district must include high school graduation as one of the performance indicators for students participating in the OFSDP.

(B) A school district operating an OFSDP for a campus will select and report student performance indicators appropriate to the population being served. The selected performance indicators must measure student achievement on an annual basis.

(2) At an open meeting of the board of trustees, a school district shall establish and review annual performance goals for the OFSDP related to performance indicators appropriate to the program, as established in paragraph (1) of this subsection and approved by the TEA [~~Agency~~].

(3) A school district shall ensure that decisions on the continuation of the OFSDP are based on state student assessment results and other student performance data.

(i) Evaluation of programs.

(1) The TEA [~~Agency~~] shall evaluate the OFSDP based on performance indicators established in subsection (h) of this section.

(2) In addition to the evaluation on the indicators identified in subsection (h) of this section, a school district shall be evaluated based on student assessment administration and student attendance accounting processes and procedures.

(j) Revocation of or denial to renew authorization to operate an OFSDP.

(1) The commissioner may revoke authorization or deny renewal of an OFSDP based on the following factors:

(A) noncompliance with application assurances and/or the provisions of this section;

(B) failure to keep timely and accurate audit and attendance accounting records;

(C) failure to maintain student eligibility requirements specified in subsection (b) of this section if one of these designations was used as an eligibility criteria for OFSDP;

(D) lack of program success as evidenced by progress reports or program data; or

(E) failure to provide accurate, timely, and complete information as required by the TEA [~~Agency~~] to evaluate the effectiveness of the OFSDP.

(2) A revocation or nonrenewal [~~non-renewal~~ ] of an approved OFSDP takes effect for the semester immediately following the date on which the revocation or nonrenewal [ ~~non-renewal~~] is issued unless another date is determined by the commissioner.

(3) An OFSDP is entitled to a ten-day notice of the proposed revocation or nonrenewal [~~non-renewal~~] and an informal review by the commissioner's designee.

(4) A decision by the commissioner to revoke the authorization or deny renewal of an OFSDP is final and may not be appealed.

(5) The OFSDP is a state program that may be monitored by an on-site visit under the TEC, §39.075. Student attendance accounting records are subject to audit under §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes). The commissioner may impose sanctions on a school district under the TEC, §39.131, for failure to comply with the OFSDP requirements of this section.