PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD
CHAPTER 5. RULES APPLYING TO PUBLIC UNIVERSITIES, HEALTH-RELATED INSTITUTIONS, AND/OR SELECTED PUBLIC COLLEGES OF HIGHER EDUCATION IN TEXAS
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Higher Education Coordinating Board adopts an amendment to §5.6 concerning the Common Admission Application without changes to the proposed text as published in the May 23, 2008, issue of the Texas Register (33 TexReg 4071). Specifically, the amendment to §5.6(f) deletes the statement that the Coordinating Board may, by contract, implement a reduced rate for participating community colleges. With the passage of Senate Bill 502, 79th Texas Legislature, all public institutions of higher education that admit freshman-level or undergraduate transfer students are legislatively mandated to accept the common admission application. Therefore, no community college must contract to use the form. Community colleges are required to accept the form and all participating institutions share in the cost of the system.
No comments were received regarding the amendment.
The amendment is adopted under the Texas Education Code, §51.762, which provides the Coordinating Board with the authority to adopt rules for the common admission application.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804061
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 23, 2008
For further information, please call: (512) 427-6114
SUBCHAPTER C. TOBACCO LAWSUIT SETTLEMENT FUNDS
The Texas Higher Education Coordinating Board adopts amendments to §6.73 and §6.74, concerning the administration of the Nursing, Allied Health and Other Health-Related Education Grant Program and the Minority Health Research and Education Grant Program, without changes to the proposed text as published in the May 9, 2008, issue of the Texas Register (33 TexReg 3705). Specifically, changes will substitute the "Board" for "Commissioner" as the responsible body for making funding decisions. Other changes extend the range of minimum and maximum awards and the award length for both grant programs. Other changes eliminate the word "peer" from "peer reviewer" and expand the definition of appropriate reviewers to evaluate applications for both grant programs. Other changes allow the Board to adjust award criteria and weights to individual grant competitions and eliminate similar language that only applied to competitive grants in nursing education. Other changes allow oral presentations by highly-ranked applications to be considered in award decisions under the Minority Health Research and Education Grant Program as they are for the Nursing, Allied Health and Other Health-Related Education Grant Program. Finally, changes extend the effective dates of §6.73(h) consistent with Texas Education Code, §63.202(f) and (g).
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §63.202(c) and §63.302(d) which provide the Coordinating Board with the authority to establish rules for the grant programs.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804062
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 9, 2008
For further information, please call: (512) 427-6114
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Higher Education Coordinating Board adopts amendments to §§7.5, 7.8, and 7.9 concerning Degree Granting Colleges and Universities Other Than Texas Public Institutions, without changes to the proposed text as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4774). Specifically, the amendments allow Board staff to make substantive changes, based on comments received in April, to Chapter 7 rules. The amendments clarify the meanings of governance and distinction of roles, add a requirement to institutional evaluation, increase the amount of the surety bond required for an alternative certificate of authority, add information relating to associate of occupational science degrees, and add a data reporting requirement.
The following comments were received regarding the amendments:
Comment: The Holland and Knight Law Firm suggested a change to §7.5(22) (relating to Standards for Operation of Institutions) - Student Rights and Responsibilities. "The institution shall establish and adhere to a clear and fair policy regarding due process in disciplinary matters; outline the established grievance process of the institution, which shall indicate that students should follow this process and may contact the Board and/or Attorney General to file a complaint about the institution if all other avenues have been exhausted, and publish these policies in a handbook, which shall include other rights and responsibilities of the students. This handbook shall be supplied in print or electronically to each student upon enrollment in the institution." They also recommended deleting the language underlined in the above paragraph and replacing the language with the following: "The institution shall establish and adhere to a clear and fair policy regarding due process in disciplinary matters; outline the established grievance process of the institution, and publish these policies in a handbook, which shall include other rights and responsibilities of the students. This handbook shall be supplied in print or electronically to each student upon enrollment in the institution."
Response: The comment by the Holland and Knight Law Firm referred to sections of Chapter 7 rules that had been adopted in April, rather than the sections available for comment. Staff determined that the suggested change had been submitted by others and was addressed at the April 2008 Board meeting therefore no other changes were made as a result of this comment.
Comment: The Holland and Knight Law Firm suggested changes to §7.3(2) and (3) (relating to Definitions), stating that it would be appropriate to broaden the definitions and make them more generic. The recommended change to §7.3(2) would read: Accreditation/Peer Review Process. A peer review process conducted by a credible national education organization that results in public recognition of an academic institution for the purposes of (1) assessing and recognizing the quality and integrity of the institution and (2) protecting the public. The recommended change to §7.3(3) would read: Accreditation/Peer Review Organization. A national education organization that conducts voluntary accreditation or other quality assessment activities through voluntary peer review and makes decisions regarding the status of institutions.
Response: The comment by the Holland and Knight Law Firm referred to sections of Chapter 7 rules that had been adopted in April, rather than the sections available for comment. Staff determined that the suggested changes had been submitted by others and were addressed at the April 2008 Board meeting therefore no other changes were made as a result of this comment.
Comment: DeVry University suggested the following change to §7.3(17) (relating to Definitions) of the adopted rules to cover other program levels by deleting the term "associate."
Response: The comment referred to a section of Chapter 7 rules that were adopted in April, rather than the sections available for comment therefore no other changes were made as a result of this comment. Staff will consider the change in October.
The amendments are adopted under the Texas Education Code, Chapter 61, Subchapter G, and Texas Education Code Chapter 132, which provides the Coordinating Board with the authority to regulate the awarding or offering of degrees, credit toward degrees, and the use of certain terms.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804063
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts the repeal of §7.15, concerning Use of Fictitious, Fraudulent, or Substandard Degrees, and §7.16, concerning Administrative Penalties and Injunctions, without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4776).
Specifically, this repeal will allow Board staff to add a new §7.15 concerning Data Reporting, and to renumber the sections concerning the Use of Fictitious, Fraudulent, or Substandard Degrees and Prohibitions, Administrative Penalties and Injunctions.
No comments were received regarding the repeal of these sections.
The repeal is adopted under the Texas Education Code, Chapter 61, Subchapter G, and Texas Education Code Chapter 132, which provides the Coordinating Board with the authority to regulate the awarding or offering of degrees, credit toward degrees, and the use of certain terms.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804064
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts new §§7.15 - 7.17, concerning Degree Granting Colleges and Universities Other than Texas Public Institutions, without changes to the proposed text as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4776).
Specifically, these new sections will allow Board staff to add a new §7.15 concerning Data Reporting, and to renumber the sections concerning the Use of Fictitious, Fraudulent, or Substandard Degrees and Prohibitions, Administrative Penalties and Injunctions.
No comments were received regarding the new sections.
The new sections are adopted under the Texas Education Code, Chapter 61, Subchapter G, and Texas Education Code Chapter 132, which provides the Coordinating Board with the authority to regulate the awarding or offering of degrees, credit toward degrees, and the use of certain terms.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804065
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 427-6114
SUBCHAPTER B. DETERMINATION OF RESIDENT STATUS AND WAIVER PROGRAMS FOR CERTAIN NONRESIDENT PERSONS
The Texas Higher Education Coordinating Board adopts amendments to §§21.22, 21.24, and 21.25, concerning Determination of Resident Status and Waiver Programs for Certain Nonresident Persons, without changes to the proposed text as published in the June 6, 2008, issue of the Texas Register (33 TexReg 4446).
Specifically, the amendment to §21.22(6) adheres to standard procedure by defining the acronym "USCIS" the first time it occurs in the rules. The amendment to §21.22(11) corrects the spelling of an institution by changing it from "San Houston State University" to "Sam Houston State University." Section 21.24(b)(3) states that an eligible nonimmigrant that holds one of the types of visas listed in Chart I and incorporated into this subchapter for all purposes may establish a domicile. The visa type "NAFTA" is proposed for inclusion in the chart to match the existing "Immigration Classifications and Visa Categories" on the website of the United States Citizenship and Immigration Services (USCIS). The eligibility status of visa type "TD" had heretofore not been listed. The amendment makes it clear that a nonimmigrant with this visa type is not eligible to domicile in the United States. Section 21.25(c) states that if a person who establishes resident status under §21.24(a)(1) of this title is not a Citizen of the United States or a Permanent Resident, the person shall, in addition to the other requirements of this section, provide the institution with a signed affidavit, stating that the person will apply to become a Permanent Resident as soon as the person becomes eligible to apply. The affidavit shall be required only when the person applies for resident status and shall be in the form provided in Chart II and incorporated into this subchapter for all purposes. The amendment adds a line to the affidavit (Chart II) on which a person will indicate his or her date of birth. This addition to the affidavit has been requested by institutions in order to ensure the proper matching of documents in the event several students have the same name.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §54.075, which provides the Coordinating Board with the authority to adopt rules to carry out the purposes of Texas Education Code, §§54.0501 - 54.075.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804066
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 427-6114
19 TAC §§21.151, 21.152, 21.154
The Texas Higher Education Coordinating Board adopts amendments to §§21.151, 21.152, and 21.154 concerning the Matching Scholarships to Retain Students in Texas Program without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3535).
Specifically, the amendments to §21.151 concerning Purpose update the title of this section to "Authority and Purpose" for consistency throughout the rules, and add items (a) and (b) which reference the authorizing statute and describe the program's purpose. Amendments to §22.152(2) concerning Definitions update the citation and title for Chapter 21, Subchapter B, which deals with residency. The amendment to §21.154(1) concerning Eligible Students changes "Texas resident" to "resident of Texas," which corresponds with the term defined in §22.152.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §61.087, which provides the Coordinating Board with the authority to adopt any rules necessary to implement this section.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804067
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.402 and §21.404 concerning the Texas College Work-Study Program without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3535).
Specifically, the amendments to §21.402(12) concerning Definitions update the citation for Chapter 21, Subchapter B, which deals with residency. The amendment to §21.404(4) concerning Eligible Student Employees reflects state selective service registration requirements (Texas Education Code, §51.9095) for receiving state aid.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §56.073, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §§56.071 - 56.079, and §51.9095, which authorizes the Coordinating Board to adopt rules regarding student compliance with selective service registration.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804068
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.910 concerning the Reciprocal Educational Exchange Program without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3536). Specifically, the amendments to §21.910 (Reporting Requirements) eliminate the specific reporting deadline date and clarify that prior-year program data is to be reported annually by a deadline specified by the Board.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, Section 54, Subchapter B, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §54.060(d).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804069
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.938 concerning Reporting Requirements without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3536). Specifically, the amendments to §21.938 eliminate the reporting deadline date, require institutions to report program data on an annual basis, and simplify the data being reported.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, Section 54, Subchapter B, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §54.060(b) and (e).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804070
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
19 TAC §§21.2100 - 21.2106, 21.2108
The Texas Higher Education Coordinating Board adopts amendments to §§21.2100 - 21.2106 and 21.2108 in Subchapter NN of this chapter, concerning the Exemption Program for Veterans and their Dependents (The Hazlewood Act), without changes to the proposed text as published in the June 6, 2008, issue of the Texas Register (33 TexReg 4447). Specifically, the amendment to §21.2100(3) reflects the standard format used throughout this section by capitalizing the first word of a definition. The amendment to §21.2100(8) expands the definition of "dependent" to include a child who was claimed as a dependent in the same year as the veteran's death or service-related injury. Previously, a child was a dependent if the child was claimed in the year preceding the veteran's death or injury. The amendment makes §21.2100(8) consistent with §21.2105(b)(3). The amendment to §21.2100(15) reflects the fact that a change regarding deposit fees as mandated in Senate Bill 1233, 80th Texas Legislature, deleted the term "property." This amendment regarding deposit fees is also proposed in §§21.2101(a), 21.2101(b), 21.2102(4), 21.2103(2), 21.2106(a)(3), and 21.2108(a). The amendment to §21.2100(16) updates the citation and title for Chapter 21, Subchapter B, which deals with residency. The amendment to §21.2101(a), in addition to deleting the word "property" from "deposit fees," corrects grammar by changing "veterans" to "veteran." The amendment to §21.2101(g) deletes the now out-dated academic term relevant to when junior college districts were given authority to establish fees for extraordinary costs for certain programs. Amendments to §21.2102(4), in addition to deleting the word "property" from "deposit fees," clarify that Hazlewood benefits can be combined with federal education benefits based on their combined calculated value for the entire semester. A grammatical error is also corrected, changing "are" to "is." The amendment to §21.2104(b) provides guidance for processing late applications. The amendment to §21.2104(c) deletes the now out-dated academic term relevant to when all applicants were first required to submit an application to receive the exemption. Previously, only applicants new to the program were required to submit documentation. The amendment to §21.2105(a)(2) deletes the term "reservist's," as all veterans of the armed services may be eligible for federal veterans' education benefits. The amendment to §21.2105(b)(3) reflects the complete list of veteran service-related conditions by which a dependent may qualify for an exemption. The amendment to §21.2106(a)(4) updates the rules related to the eligibility of a veteran who has defaulted on a state and/or federal education loan to comply with statutory language. New §21.2108(c) provides guidance for reporting students who have received federal and state veterans' education benefits during the same semester.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §54.203, which provides the Coordinating Board with the authority to adopt rules to provide for the efficient and uniform application of this section.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804071
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 427-6114
SUBCHAPTER B. PROVISIONS FOR THE TUITION EQUALIZATION GRANT PROGRAM
The Texas Higher Education Coordinating Board adopts amendments to §22.24 concerning Eligible Students without changes to the proposed text as published in the June 13, 2008, issue of the Texas Register (33 TexReg 4587). Specifically, new paragraph (3)(C) has been added to clarify the continuation requirements for first-time entering undergraduates who enter in the second regular term or semester.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §61.229 which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §§61.221 - 61.230.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804072
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 13, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §22.83 and §22.86, concerning the Texas New Horizons Scholarship Program, with changes to §22.86 of the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3537). Section 22.83 is being adopted without changes. Specifically, the amendments to §22.83 concerning Eligible Students cite the eligibility requirements for continuing in the program. This data was once housed in the General Provisions section of Chapter 22, §§22.1 - 22.8, but these sections were repealed so that the provisions could be added to individual program rules in order for the program rules to act as stand-alone documents reflecting all program requirements. House Bill 713, 76th Texas Legislature, repealed Texas Education Code, §54.216, which authorized the Texas New Horizons Scholarship Program. The program is being phased out and awards for the few remaining continuation students are funded from TEXAS Grant appropriations. The amendment to §22.86 concerning Funding reflects the change in funding source for scholarship awards from an appropriation specifically for the Texas New Horizons Scholarship Program to appropriations from the TEXAS Grant Program.
The following comment was received regarding the amendments:
Comment: Coordinating Board staff suggested that the new language in §22.86 be revised for ease of reading and clarification.
Response: The Coordinating Board agreed and deleted the phrase "costs of the" and changed "covered" to "funded."
The amendments are adopted under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules to effectuate the programs under its administration.
§22.86.Funding.
The scholarships authorized under this section shall be funded by appropriations for the TEXAS Grant program established by the Texas Education Code, Chapter 56, Subchapter M.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804073
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
19 TAC §§22.141, 22.142, 22.146, 22.147
The Texas Higher Education Coordinating Board adopts amendments to §§22.141, 22.142, 22.146, and 22.147, concerning the Provisions for the License Plate Insignia Scholarship Program, with changes to the proposed text of §22.147 as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3538). Sections 22.141, 22.142, and 22.146 are being adopted without changes. Specifically, amendment to §22.141(a) concerning Authority and Purpose updates the citation for the authorizing statute from Texas Transportation Code, §502.270 to §504.615. The amendment to §22.146 concerning Allocations and Reallocations also updates the citation for the authorizing statute. The amendment to §22.142 updates the name of the Texas Department of Transportation, formerly the State Department of Highways and Public Transportation. The amendment to §22.147 concerning Disbursements changes the mandatory frequency for sending funds generated through the sale of license plates to the institutions from monthly to quarterly cycles.
The following comment was received regarding the amendments:
Comment: Coordinating Board staff suggested deleting the phrase "on a regular basis" in order to simplify and clarify §22.147(2).
Response: The Coordinating Board agreed and deleted the phrase "on a regular basis."
The amendments are adopted under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt any rules to effectuate the programs under its administration.
§22.147.Disbursements.
Awards are to be made to eligible students at each institution in accordance with these rules and regulations.
(1) For public senior colleges and universities. The department deposits funds from purchased license plates directly into the institution's account at the State Comptroller's Office. Therefore, public senior colleges and universities may draw from those funds as appropriate to make awards to eligible students.
(2) For other public institutions. Funds will be made available to the institution through the Board. At least once per quarter, the Board will send the institution a state warrant for the amount of License Plate Insignia Scholarship funds generated through the sale of license plates and deposited by the department in the State Comptroller's Office for that institution.
(3) For private or independent institutions. At the beginning of each fiscal year and periodically as funds are deposited in the State Comptroller's Office by the department, the Board will notify the institution as to the amount of funds available for awarding as scholarships. On receipt of a student's application and certification by the financial aid officer of the amount of the scholarship for which the student is eligible, the Board shall forward funds to the institution for disbursement to the students.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804074
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §22.162 and §22.164, concerning Provisions for the Fifth-Year Accounting Student Scholarship Program. Section 22.164 is adopted with changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3538). Section 22.162 is being adopted without changes.
Specifically, the amendment to §22.162(10) updates the title for Chapter 21, Subchapter B, which deals with residency. New §22.164(a)(8) adds the requirement that a student must be a resident of Texas in order to receive funds. New §22.164(a)(9) reflects state selective service registration requirements (Texas Education Code, §51.9095) for receiving state aid. The amendments to §22.164(b) provide language which enables the advisory committee to establish tighter selection criteria based on financial need, and remove Texas residency as one of the factors for selecting scholarship recipients since being a Texas resident is proposed in §22.164(a)(8) as a new eligibility requirement for receiving funds.
The following comment was received regarding the amendments:
Comment: Coordinating Board staff suggested improving the grammar of the new language in §22.164(b)(1) by changing "in keeping with" to "in accordance with."
Response: The Coordinating Board agreed with this change.
The amendments are adopted under the Texas Education Code, §61.755, which authorizes the Coordinating Board to establish and administer scholarships for fifth-year accounting students, and §51.9095, which authorizes the Coordinating Board to adopt rules regarding student compliance with selective service registration.
§22.164.Eligible Students.
(a) To receive funds, a student must:
(1) be enrolled on at least a half-time basis at an approved institution;
(2) maintain satisfactory academic progress in his or her program of study as defined by the institution; and
(3) have completed at least 120 credit hours of college work, including at least 15 hours of accounting;
(4) sign a written statement confirming his/her intent to take the written examination conducted by the Texas State Board of Public Accountancy for the purpose of granting a certificate of "certified public accountant";
(5) confirm he or she has not yet taken the CPA examination;
(6) maintain a cumulative grade point average, as determined by the institution, that is equal to or greater than the grade point average required by the institution for graduation;
(7) be enrolled in the additional hours of study required by Texas Occupation Code, §901.256(2)(A) (concerning Work Experience Requirements);
(8) be a resident of Texas; and
(9) have a statement on file with the institution of higher education indicating the student is registered with the Selective Service System as required by federal law or is exempt from Selective Service registration under federal law.
(b) In selecting recipients the Program Officer shall consider at a minimum the following factors relating to each applicant:
(1) financial need, which acts as an upper limit to the amount the student may receive and cannot equal less than the amount calculated in accordance with the formula provided institutions in the application instructions;
(2) scholastic ability and performance as measured by the student's cumulative college grade point average as determined by the institution in which the student is enrolled; and
(3) ethnic or racial minority status.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804075
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts an amendment to §22.229, concerning the Toward EXcellence, Access and Success (TEXAS) Grant Program, without changes to the proposed text as published in the June 13, 2008, issue of the Texas Register (33 TexReg 4588).
Specifically, the amendment to §22.229(b)(2) adds new subparagraph (D) to clarify the continuation requirements for first time entering undergraduates who enter in the second regular term or semester.
No comments were received regarding the amendment.
The amendment is adopted under the Texas Education Code, §56.303, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §§56.301 - 56.311.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804076
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: June 13, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts an amendment to §22.280, concerning Individual Development Account Information Program, without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3539).
Specifically, the amendment to §22.280, concerning Authority and Purpose, updates the citation for the Individual Development Account Information Program from Texas Education Code, Subchapter C, Chapter 61, §61.0816 to Texas Education Code, Chapter 61, Subchapter C, §61.0817.
No comments were received regarding the amendment.
The amendment is adopted under the Texas Education Code, §61.0817, which provides the Coordinating Board with the authority to adopt any rules necessary to administer this section.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804077
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §22.293 and §22.295, concerning the Exemption Program for Children of Professional Nursing Program Faculty and Staff, without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3540). Specifically, the amendment to §22.293(7) updates the citation and title for Chapter 21, Subchapter B, which deals with residency. The amendments to §22.295 reflect state selective service registration requirements (Texas Education Code §51.9095) for receiving state aid.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §54.221, which provides the Coordinating Board with the authority to adopt rules governing the granting or denial of an exemption under this section, including rules relating to the determination of eligibility for an exemption; and §51.9095, which authorizes the Coordinating Board to adopt rules regarding student compliance with selective service registration.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804078
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
19 TAC §§22.303, 22.305, 22.306
The Texas Higher Education Coordinating Board adopts amendments to §§22.303, 22.305, and 22.306, concerning the Exemption Program for Clinical Preceptors and Their Children, without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3540). Specifically, the amendment to §22.303(7) updates the citation and title for Chapter 21, Subchapter B, which deals with residency. Amendments to §22.305(4) and §22.306(4) reflect state selective service registration requirements (Texas Education, §51.9095) for receiving state aid. In addition, §22.306(2) references the specific requirements that preceptors must meet for their children to qualify for the exemption.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules to effectuate the programs under its administration, and §51.9095, which authorizes the Coordinating Board to adopt rules regarding student compliance with selective service registration.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804079
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §22.315 concerning the Student Eligibility Requirements without changes to the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3541). Specifically, the amendment to §22.315 reflects state selective service registration requirements (Texas Education Code, §51.9095) for receiving state aid.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §61.027, which provides the Coordinating Board with the authority to adopt rules to effectuate the programs under its administration, and §51.9095, which authorizes the Coordinating Board to adopt rules regarding student compliance with selective service registration.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804080
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 25, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 427-6114
SUBCHAPTER BB. COMMISSIONER'S RULES ON REPORTING REQUIREMENTS
The Texas Education Agency (TEA) adopts new §61.1028, concerning reporting of bus accidents. The new section is adopted with changes from the proposed text as published in the May 30, 2008, issue of the Texas Register (33 TexReg 4283). The adopted new rule implements the requirements of the Texas Education Code (TEC), §34.015, as added by House Bill (HB) 323, 80th Texas Legislature, 2007, that charges the TEA with collecting from school districts annually information on accidents involving the districts' buses and reporting this information.
Adopted new 19 TAC §61.1028, Reporting of Bus Accidents, implements the TEC, §34.015, by establishing applicable definitions and specific requirements for reporting bus accidents. The adopted new rule requires school districts and open-enrollment charter schools to report to the TEA annually the number of bus accidents. Each bus accident report must include the date of the accident; the type of bus involved; whether the bus was equipped with seat belts and, if so, what kind; the number of students and adults involved in the accident; the number and types of injuries sustained by the bus passengers; and whether injured passengers were wearing seat belts and, if so, what kind.
In response to public comment, subsection (a) has been modified to clarify several definitions, and subsection (b)(1)(C) has been modified to specify that the phrase "type of bus" refers to one of the buses defined in subsection (a).
The TEA determined that the adopted new rule will have no direct adverse economic impact to small businesses or microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period on the proposal began May 30, 2008, and ended June 30, 2008. Following is a summary of public comments received and corresponding agency responses regarding the proposed new 19 TAC §61.1028, Reporting of Bus Accidents.
Comment. The transportation training and safety specialist from Northside Independent School District (ISD) commented that the phrase "type of bus" in subsection (b)(1)(C) should be clarified. The commenter suggested specifying in subsection (a) what is meant by "type of bus."
Agency Response. The agency agrees. Subsection (b)(1)(C) has been modified to indicate that "type of bus" refers to one of the types of buses specified and defined in subsection (a). Also, in subsection (a), each definition based on a Texas Transportation Code definition has been modified to reference the applicable section of the Texas Transportation Code.
Comment. The transportation training and safety specialist from Northside ISD commented that bus passengers may be secured by restraint systems other than standard seat belts. The commenter suggested that a list of all the types of seat belts and restraints be provided in subsection (b)(1)(G) so that the data collected would be more accurate.
Agency Response. The agency disagrees and maintains language as published as proposed. TEC, §34.015, requires reports of bus accidents to include information on whether a bus was equipped with, and whether injured passengers were wearing, seat belts. A seat belt is necessarily either a lap belt or a three-point lap/shoulder belt, not any other type of restraint. The online survey through which school districts and open-enrollment charter schools report accidents allows respondents to specify which type of seat belt a bus was equipped with and which type injured passengers were wearing.
The new section is adopted under the Texas Education Code, §34.015, which authorizes the TEA by rule to determine the information to be reported for bus accidents. The TEC, §34.015, requires school districts to report annually to the TEA information regarding accidents involving the districts' buses and requires the TEA to publish reported information on its website.
The new section implements the Texas Education Code, §34.015.
§61.1028.Reporting of Bus Accidents.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Accident--Any accident as described by the Texas Transportation Code, Chapter 550, Subchapter B.
(2) School bus--In accordance with the Texas Transportation Code, §541.201, a school bus is a motor vehicle that was manufactured in compliance with the Federal Motor Vehicle Safety Standards (FMVSS) for school buses in effect on the date of manufacture and that is used to transport preprimary, primary, or secondary students on a route to or from school or on a school-related activity trip other than on routes to and from school. A school bus is a bus owned, leased, contracted to, or operated by a school or school district that is regularly used to transport students to and from school or school-related activities; meets all applicable FMVSS; and is readily identified by alternately flashing lights, national school bus yellow paint, and the legend "School Bus." The term does not include a multifunction school activity bus, a school activity bus, or a motor bus.
(3) Multifunction school activity bus--In accordance with the Texas Transportation Code, §541.201, a multifunction school activity bus is a subcategory of school bus. It must meet all FMVSS for a school bus except having traffic control devices, including flashing lights and stop arm, and it may not be painted in national school bus yellow. The multifunction school activity bus cannot be used to transport students from home to school or school to home or for any purpose other than school activities.
(4) School activity bus--In accordance with the Texas Transportation Code, §541.201, a school activity bus is a bus designed to accommodate more than 15 passengers, including the operator, that is owned, operated, rented, or leased by a school district, county school, open-enrollment charter school, regional education service center, or shared services arrangement and that is used to transport public school students on a school-related activity trip, other than on routes to and from school. The term does not include a chartered bus, a bus operated by a mass transit authority, a school bus, or a multifunction school activity bus.
(5) Motor bus--The term "motor bus" does not include a vehicle that meets the definition of a school bus, a multifunction school activity bus, or a school activity bus. A motor bus is:
(A) a commercial, motor transit-type vehicle owned or leased by the school district or the school district's commercial contractor that is designed to transport 16 or more passengers including the driver on school activity trips; or
(B) a transit-type bus operated by a mass/metropolitan transit authority when the school district contracts with the authority in accordance with Texas Education Code, §34.008, to transport students to and from school.
(b) Reporting.
(1) School districts and open-enrollment charter schools shall report annually to the Texas Education Agency (TEA) the number of accidents in which their buses were involved in the past year. School districts and open-enrollment charter schools shall report the accidents in a manner prescribed by the commissioner of education. School districts and open-enrollment charter schools shall file annual accident reports to the TEA only in the period beginning July 1 and ending July 31 and shall include the following information in the report:
(A) the total number of bus accidents;
(B) the date each accident occurred;
(C) the type of bus, as specified in subsection (a) of this section, involved in each accident;
(D) whether the bus involved in each accident was equipped with seat belts and, if so, the type of seat belts;
(E) the number of students and adults involved in each accident;
(F) the number and types of injuries that were sustained by the bus passengers in each accident; and
(G) whether the injured passengers in each accident were wearing seat belts at the time of the accident and, if so, the type of seat belts.
(2) A school district or open-enrollment charter school shall report a bus accident involving a school bus, a multifunction school activity bus, a school activity bus, or a motor bus if:
(A) the bus is owned, leased, contracted, or chartered by a school district or charter school and was transporting school district or charter school personnel, students, or a combination of personnel and students; or
(B) the bus was driven by a school district or charter school employee or by an employee of the school district's or charter school's bus contractor with no passengers on board and the accident involved a collision with a pedestrian.
(3) A school district or open-enrollment charter school shall not report a bus accident involving a school bus, a multifunction school activity bus, a school activity bus, or a motor bus if:
(A) the bus was driven by a school district or charter school employee or by an employee of the school district's or charter school's bus contractor, the accident occurred when no passenger other than the school district's or charter school's driver or bus contractor's driver was on board the bus, and the accident did not involve a collision with a pedestrian; or
(B) the accident involved a bus chartered by a school district or charter school for a school activity trip and no school district or charter school personnel or students were on board the bus at the time of the accident.
(4) A school district or open-enrollment charter school shall not report an accident that occurred in a vehicle that is owned, contracted, or chartered by a school district or charter school and is not a school bus, a multifunction school activity bus, a school activity bus, or a motor bus.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 8, 2008.
TRD-200804159
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: August 28, 2008
Proposal publication date: May 30, 2008
For further information, please call: (512) 475-1497
SUBCHAPTER EE. COMMISSIONER'S RULES CONCERNING PILOT PROGRAMS
The Texas Education Agency (TEA) adopts new §102.1056, concerning the Dropout Recovery Pilot Program. The new section is adopted with changes from the proposed text as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4778). The adopted new rule establishes a grant program for dropout recovery that meets the requirements of the Strategic Plan of the High School Completion and Success Initiative Council authorized in the Texas Education Code (TEC), §39.361(c).
The TEC, §39.357(b), requires the commissioner to establish rules as necessary to administer the strategic plan adopted by the High School Completion and Success Initiative Council (Council). The TEC, §39.361(c), authorizes the commissioner to establish grant programs to meet the goals of the Council's strategic plan. In addition, the TEC, §39.366, authorizes the commissioner to adopt rules as necessary to administer the High School Completion and Success Initiative.
The strategic plan was adopted by the Council on March 11, 2008. The Council's goals are to: reduce high school dropout rates, improve postsecondary success, and close gaps in achievement among student socio-economic, racial, and ethnic groups. Under these goals, the Council specified objectives and corresponding action plans. In action plan 1.3.1, the strategic plan provides for targeted intervention programs to serve students who have academic deficiencies, are at-risk of dropping out of school, or have already dropped out of school through traditional and alternative education settings. The strategic plan further specifies the inclusion of a dropout recovery program for which a variety of service providers are eligible such as school districts, open-enrollment charter schools, regional education service centers, institutions of higher education, and nonprofit organizations.
The adopted new 19 TAC §102.1056 implements the statutory provisions of the dropout recovery pilot program as follows.
Subsection (a) defines words and terms used in the section.
Subsection (b) outlines eligibility requirements for grant applicants.
Subsection (c) provides information required to be submitted in any application for funding.
Subsection (d) provides for the notification, in writing, of selected or non-selected applicants.
Subsection (e) outlines the conditions of pilot program operation.
Subsection (f) explains the grant funding mechanism to include: base funding; performance funding, including interim benchmark payments and completion payments; other funding for school districts under the Foundation School Program; and other funding for eligible institutions of higher education, nonprofit organizations, county departments of education, and education service centers under the grant.
Subsection (g) provides a list of allowable expenditures.
Subsection (h) provides a list of disallowed expenditures.
Subsection (i) provides for grantee compliance with evaluation procedures established by the commissioner.
Subsection (j) defines the subsequent funding eligibility.
Subsection (k) defines the conditions leading to revocation of the grant.
Subsection (l) outlines requirements for access to records.
Subsection (m) provides for creation of a technical advisory panel.
In response to public comment, subsection (n) was added at adoption to allow for the audit and recovery of grant funds against any state provided funds.
Approved pilot program participants will be required to adhere to all procedural, reporting, and evaluation requirements. Entities awarded funding will be required to maintain grant application documentation and program-related paperwork.
The TEA determined that the adopted new rule will have no direct adverse economic impact to small businesses or microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period began June 20, 2008, and ended July 21, 2008. In addition, a public hearing was held on June 25, 2008, in Austin, Texas, to receive public comment on the proposed new rule. A number of individuals, including school officials, members of the Texas Senate and House of Representatives, and other interested organizations, submitted comments and inquiries regarding the Dropout Recovery Pilot Program. Following is a summary of the public comments received and corresponding agency responses regarding proposed new 19 TAC Chapter 102, Educational Programs, Subchapter EE, Commissioner's Rules Concerning Pilot Programs, §102.1056, Dropout Recovery Pilot Program.
ELIGIBLE APPLICANTS
Comment. Several individuals and representatives of the Coalition of Public Schools, the Texas American Federation of Teachers, the Association of Texas Professional Educators, the Texas Freedom Network, the Texas Association of School Boards, the Texas Association of School Administrators, and the Texas State Teachers Association, commented that private schools should not be included as eligible applicants under the Dropout Recovery Pilot Program. Many commenters stated that public funds should not be awarded to private schools. Two commenters stated that the definition of eligible applicants was expanded from private schools to nonprofit organizations in response to legislative criticism received after the program was announced; however, this action did not fully alleviate the concerns centered around the state directly funding private schools and is inconsistent with other programs authorized under House Bill (HB) 2237.
Agency Response. The agency disagrees that public funds should not be awarded to private nonprofit schools under this program. Eligible applicants for the Dropout Recovery Pilot Program may include private schools; however, the program also allows for participation by a variety of other entities, such as public school districts and open-enrollment charter schools, along with nonprofit organizations, institutions of higher education, county departments of education, education service centers, and nonprofit organizations with experience in educational programs. This definition was further clarified in the Request for Application (RFA) issued July 1, 2008. The agency has determined that there is no single proven strategy for recovering dropouts; rather, each category of eligible organization brings different strengths, expertise, and experience with a variety of strategies and programs. National research on dropout recovery programs verifies that a wide range of program options provides students who have dropped out with the best opportunity to reconnect and succeed.
Comment. The Texas Public Policy Foundation and the Americans for Prosperity Foundation expressed support for exploring new methods and solutions for dropouts. Both mentioned that students can fall through the cracks in the current public education system that offers limited alternatives.
Agency Response. The agency agrees with offering multiple strategies for recovering dropouts.
Comment. The Texas Classroom Teachers Association requested that eligible applicants be limited to only those entities with the ability to award a high school diploma or that have articulation agreements with institutions of higher education.
Agency Response. The agency disagrees with the comment that eligible applicants should be limited to those entities with the ability to award a high school diploma and the comment that eligible applicants should have articulation agreements with institutions of higher education. Students who have dropped out of school may be interested in attaining college readiness in the shortest amount of time possible without having to earn a high school diploma. If an applicant chooses to offer students a college readiness program, it must offer students the opportunity to earn a General Educational Development (GED) credential, achieve a passing score on a Texas Success Initiative (TSI) testing instrument or earn a TSI exemption based on a score on an alternative test, and either earn credit for a college course within an institution of higher education's core curriculum or earn advanced technical credit listed in the Advanced Technical Credit Statewide Articulated Crosswalk. Programs do not need to have an articulation agreement with an institution of higher education to offer a college readiness program; they need only have a partnership with an institution of higher education to allow students the opportunity to take college courses at no cost to the students in the program.
Comment. The Texas Classroom Teachers Association supported the requirement in subsection (b)(3)(A) that to be awarded a grant an applicant must have been operating as an eligible entity for at least three years prior to the time of the grant application.
Agency Response. The agency agrees.
Comment. The Association of Texas Professional Educators commented that operators of a private kindergarten or elementary school would not be well-equipped to serve the unique needs of secondary school dropouts.
Agency Response. The agency disagrees. Educational experience, whether at the secondary or elementary level, will provide eligible applicants with the background necessary to develop dropout recovery programs. Since this is a competitive grant program, all applications will be reviewed and scored, and only those applicants with the highest scores will be considered for funding. Applicants that propose to implement research-based strategies will receive priority points, and all applicants are required to demonstrate experience with at-risk students or school dropouts as a requirement of the grant application.
LEGISLATIVE INTENT
Comment. Several individuals and two members of the Texas Senate and one member of the Texas House of Representatives, as well as representatives of the Coalition of Public Schools, the Texas American Federation of Teachers, the Association of Texas Professional Educators, the Texas Association of School Administrators, the Texas Freedom Network, and the Texas State Teachers Association, commented that the award of public funds to private schools was not the intent of the Texas Legislature when it passed HB 2237. Many commenters likened this to development of a voucher program which was opposed by the Texas Legislature and clearly set forth in an amendment to HB 1, passed by record vote on March 29, 2007. The amendment states that no funds appropriated under HB 1 were intended to pay for a public education voucher program if the state funds are used to pay for tuition vouchers.
Agency Response. The agency disagrees that the Dropout Recovery Pilot Program is like a voucher program. The Dropout Recovery Pilot Program allows a variety of entities to apply for funds to serve students who have already dropped out of a Texas public school. The agency has determined that all Texas students deserve the opportunity to be successful in life after high school, and the Dropout Recovery Pilot Program offers innovative ways to serve these students, including programs at private nonprofit schools. This program is an effort to bring students back into schools and does not divert any Foundation School Program money from school districts. A voucher program provides funds to parents to pay for their child to attend a school of their choice. This program does not provide funds to parents; instead, it provides funds to eligible organizations.
Comment. Several individuals and two members of the Texas Senate and one member of the Texas House of Representatives, as well as representatives of the Coalition of Public Schools, the Texas American Federation of Teachers, the Association of Texas Professional Educators, the Texas Freedom Network, the Texas Association of School Administrators, and the Texas State Teachers Association, commented that the agency was acting beyond its authority to countermand the intent of the Texas Legislature.
Agency Response. The agency disagrees. HB 2237, 80th Texas Legislature, 2007, created a nine- member High School Completion and Success Initiative Council (Council) composed of the commissioner of education, the commissioner of higher education, and seven distinguished members appointed from lists of nominees provided by the Office of the Governor, Lieutenant Governor, and the Speaker of the Texas House of Representatives. In response to its legislative charge, the Council adopted a strategic plan, which includes groundbreaking intervention programs, like the Dropout Recovery Pilot Program, targeting students who have already dropped out of Texas public schools. Texas Education Code (TEC), §39.361(c), states that the commissioner of education shall consider the Council's recommendations for programs and based on those recommendations may award grants to school districts, open-enrollment charter schools, institutions of higher education, regional education service centers, and nonprofit organizations to meet the goals of the Council's strategic plan. Additionally, TEC, §39.361(d)(2), expressly states that the commissioner of education may not award discretionary funds appropriated for high school completion and success except in conformance with the Council's strategic plan.
COMPLIANCE AND ACCOUNTABILITY
Comment. A representative from the Texas Freedom Network testified that the commissioner does not have the authority to approve different groups as accredited.
Agency Response. The agency agrees with this comment. The rule for this program does not claim authority for the commissioner to approve accreditation of different groups; rather, the rule states, in subsection (b)(3)(B)(ii)(III), that an applicant that is acting as the fiscal agent and that issues high school diplomas must have earned accreditation through the TEA or an accrediting entity operating as a member of the Texas Private School Accreditation Commission, or have been accredited by another accrediting entity that is approved by the commissioner of education.
Comment. Several individuals commented regarding accountability of the grantees of the Dropout Recovery Pilot Program. A representative of the East Austin Military Veterans' Coalition commented that the TEA is not monitoring this program for compliance.
Agency Response. The agency disagrees. The RFA for the Dropout Recovery Pilot Program requires each applicant to describe in the application an evaluation plan/design for monitoring the implementation of the program on an ongoing basis and for determining whether the program met its stated goals and objectives and achieved the desired results based on the established performance indicators. By submitting a grant application, the applicant agrees to comply with any reporting and evaluation requirements that may be established by the TEA, and all grantees are required to submit progress reports and expenditure reports on a regular basis. Additionally, program requirements that must be addressed by every applicant include the following: compliance with state requirements for criminal background checks for all staff, compliance with all relevant federal laws and regulations, and compliance with all TEA requirements. Technical assistance will be provided to grantees to assist grantees in the implementation of program requirements. The RFA also provides for on-site monitoring of the grantee under Part 4, Standard Application System, Schedule #6A, General Provisions and Assurance, Section G, Monitoring.
Comment. The Texas Association of School Administrators, the Texas Association of School Boards, and the Association of Texas Professional Educators, commented that private entities are not held to the same accountability standards as the public schools, nor does the commissioner have the power to sanction a private entity or recover state funding should the grantee violate grant requirements.
Agency Response. The agency agrees that private entities are not held to the same statewide accountability standards as public schools. For this reason, the rule allows only private schools accredited by an accrediting entity operating as a member of the Texas Private School Accreditation Commission (TEPSAC) or another accrediting entity approved by the commissioner of education to apply for this program. TEPSAC specifies that for a non-public school to be certified, its operations, curriculum, staffing, and instruction must be sufficiently comparable to those of public schools. In addition, to receive accreditation, the TEPSAC requires a non-public school to employ a testing program sufficiently comparable to the Texas Assessment of Knowledge and Skills (TAKS). Additionally, with the exception of the start-up funding, this program provides payments to grantees only upon demonstration of student performance.
The agency agrees that the commissioner of education does not have the authority to sanction a private entity. The rule provides the commissioner of education the authority of revocation. The commissioner of education may revoke the grant award for the Dropout Recovery Pilot Program for various factors, such as noncompliance with the rule or program assurances, failure to submit required reports, failure to participate in data collection and audits, failure to meet grant performance standards, and/or failure to provide required information for TEA evaluation of the grant.
The agency agrees that the right of recovery of state funding was not directly granted in the rule. The agency has added language in subsection (n) at adoption to explicitly allow recovery of state funds.
OTHER ISSUES
Comment. The Association of Texas Professional Educators submitted a list of ways in which the Dropout Recovery Pilot Program differs from the Collaborative Dropout Reduction Pilot Program, including the total amount of available funds, the requirement for matching funds, the commitment for continuing efforts beyond the life of the grant, and the timeframe for preparation, submission, and review of the applications.
Agency Response. The agency agrees that differences between the two programs exist. These are intended to be separate programs. The Collaborative Dropout Reduction Pilot Program targets at-risk students with intervention strategies. The Dropout Recovery Pilot Program focuses on creating innovative programs for students who have already dropped out of Texas public schools. Funding amounts and match requirements for the Collaborative Dropout Reduction Pilot Program were dictated by statutory requirements. Compressed grant application timelines for the Dropout Recovery Pilot Program resulted from the adoption in March 2008 of the High School Completion and Success Initiative Council Strategic Plan by the statutorily-created High School Completion and Success Initiative Council.
Comment. The Association of Texas Professional Educators expressed concerns that the Dropout Recovery Pilot Program provides for no collaborative efforts with other public or private entities, no requirement for applicants to have a large population of economically disadvantaged students, and extra points for research-based strategies but no requirement that services have a foundation in scientifically proven methods.
Agency Response. The agency disagrees that the Dropout Recovery Pilot Program provides for no collaborative efforts with public or private entities. The RFA gives priority points for applicants that demonstrate collaboration with local partners. The agency agrees that the rule does not require applicants to have a large population of economically disadvantaged students, but the agency has determined that programs targeting students who have already dropped out of school will necessarily serve a number of economically disadvantaged students. The agency agrees that the RFA provides priority points for research-based strategies but does not require scientifically proven methods. The agency does not require scientifically proven methods as a basis for priority points because most of the scientifically-based research focuses on dropout prevention not recovery.
Comment. A private citizen who is also a Texas certified public school teacher suggested that eligible applicants for the program be expanded to include students in a home school environment as these students who have dropped out would be able to obtain individual attention and the kind of encouragement that would help them to complete their secondary education.
Agency Response. The agency disagrees. The program conforms with the strategic plan adopted by the High School Completion and Success Initiative Council. The TEC, §39.361(d)(2), expressly states that the commissioner of education may not award discretionary funds appropriated for high school completion and success except in conformance with the Council's strategic plan. In accordance with the TEC, §39.361(c), the Council's strategic plan provides recommendations for grant awards only to school districts, open-enrollment charter schools, institutions of higher education, regional education service centers, and nonprofit organizations.
Comment. The Round Rock Independent School District (ISD) commented that the rule should include more clarity regarding the distribution of performance funding. The district stated that the additional clarity would provide districts more information and guidance to determine whether or not to apply for the Dropout Recovery Pilot Program.
Agency Response. The agency disagrees. The purpose of the rule is to outline the framework of the overall program that is proposed. Detailed information that would assist potential applicants in making their decision about whether to submit an application is more appropriately located within the RFA. Detailed information about performance funding can be found in the current RFA.
Comment. The Round Rock ISD requested adding "completion rate" as an element of the eligibility requirements.
Agency Response. The agency disagrees. Rather than limit the program to specific school districts with low completion rates, a variety of service providers, within certain areas of the state with high dropout rates, are given the opportunity to apply to serve eligible students.
Comment. The Association of Texas Professional Educators and a representative of the Texas Freedom Network commented that the student eligibility requirements are insufficient to prevent parents from withdrawing their children from public school and holding them out until they are eligible for the program in order to enroll them in private school the next school year.
Agency Response. The agency disagrees. To be eligible for this program, a student must have been absent or withdrawn from a Texas public school for 30 consecutive school days and, during that time of absence, not been enrolled in a public school, private school, or home school. Parents are unlikely to withdraw their children from school for a full six weeks, at the risk of truancy charges, in order to enroll their children in a program designed specifically to serve school dropouts operated by a private school.
Comment. The Texas Association of School Boards commented that the rule does not include a provision that would prohibit private, nonprofit grantees from denying enrollment to applicants who fail to meet their criteria even though funded with state funds.
Agency Response. The agency agrees. No grantee, including school districts and charter schools, under the Dropout Recovery Pilot Program is prohibited from denying enrollment to students who fail to meet their eligibility requirements as specified in their grant application. However, the General Provisions and Assurances included in the RFA require that the contractor abide by all federal laws, including laws and regulations related to discriminatory practices. See page 47 in Part IV: Standard Application System of the Dropout Recovery Pilot Program RFA.
Comment. The Texas Classroom Teachers Association commented that the word "or" should be deleted and replaced with "and" to clarify the expectation that all programs should be geared towards earning a high school diploma. The association further stated that the goal of the program should be limited to attainment of a high school diploma and not provide for college readiness as an outcome.
Agency Response. The agency disagrees. Although the agency agrees that a high school diploma is an important outcome, it may not be an appropriate outcome for every dropout. Many of the students who have dropped out of school may be interested in attaining a GED in order to move on to college in the shortest amount of time possible, or because they have made multiple unsuccessful attempts to earn a high school diploma. Further, many dropouts are over age and some have not met the high school credit requirements, making returning to high school to complete a diploma program unlikely. In order to serve these students effectively, college readiness is the outcome best suited to their individual needs and situation.
Comment. The Texas Classroom Teachers Association stated their concern that obtaining a GED was an outcome that triggered a payment under the Dropout Recovery Pilot Program when the education and accountability system is moving away from treating or viewing a GED as equivalent to a high school diploma. The association further questioned the need for the "Other funding" provision in subsection (f)(4), based upon the association's interpretation that GED-granting institutions would receive funding for the student's completion of a GED.
Agency Response. The agency disagrees that obtaining a GED triggers a payment under this grant program. Grantees will not receive performance payments or completion payments for students who acquire only the GED credential. To receive a completion payment, the student must have earned a GED and have achieved a passing score on a TSI testing instrument or earned an exemption for an alternative TSI test and earned college credit.
Comment. The Texas Classroom Teachers Association commented that subsections (a)(8) and (b)(2) allow an ineligible nonprofit organization to participate in a local program through a shared service arrangement without the review and scrutiny received by an eligible applicant. The association further stated that allowing for "inappropriate subcontractors hired through shared service arrangements may not be in the best interests of the students."
Agency Response. The agency disagrees that nonprofit organizations participating in the program through a shared service arrangement are not subjected to the same review and scrutiny as single entity eligible applicants. Shared service arrangements transfer the responsibility of scrutinizing program partners to the grantee that is held responsible for the actions of each member entity. Under the RFA, shared service arrangements must provide full disclosure in their application of the members of the shared service arrangement; a description of the responsibilities of the fiscal agent and each SSA member, to include the refund liability that may result from on-site monitoring or audits and the final disposition of equipment, facilities, and materials purchased for this project from grant funds; certification that the information contained in their application is correct and complete; and that payments to members of shared service arrangements are expended in accordance with applicable laws and regulations. Additionally, the fiscal agent under the shared service arrangement accepts responsibility for the refund for any exceptions taken as a result of on-site monitoring or audits and maintains the signed agreement which must be on file with the fiscal agent for review and which gives the fiscal agent recourse to the member agencies in the event of any discrepancy(ies) that may occur. Further, shared service arrangements are a method of ensuring that local nonprofit organizations partnering to provide social services necessary to the retention and success of dropout recovery are held accountable for all applicable program requirements as well as on-site monitoring and/or audits.
Comment. The Texas Classroom Teachers Association expressed support for the definition of a dropout for the purposes of this program specified in subsection (a)(3)(B) and (C). The association also expressed support for the language in subsection (b)(3), including subparagraph (A), which requires an applicant awarded a grant to have been operating as an eligible entity for at least three years prior to the time of the grant application.
Agency Response. The agency agrees.
Comment. The Texas Classroom Teachers Association commented that the rule should specify the length of the grant in order to facilitate the planning of interested parties.
Agency Response. The agency disagrees. Information regarding the length of the Dropout Recovery Pilot Program is included in the RFA, which is the appropriate document for conveying the requirements for each grant cycle. The rule, as written, does not preclude the possibility of subsequent funding or multi-year programs in the future.
The new section is adopted under the Texas Education Code, §39.357, as added by House Bill 2237, 80th Texas Legislature, 2007, which requires the commissioner to establish rules as necessary to administer the strategic plan adopted by the High School Completion and Success Initiative Council (Council), and TEC, §39.366, which authorizes the commissioner to adopt rules as necessary to administer the High School Completion and Success Initiative. The TEC, §39.361(c), authorizes the commissioner to establish grant programs to meet the goals of the Council's strategic plan.
The new section implements the Texas Education Code, §§39.357, 39.365, 39.366, and 39.361.
§102.1056.Dropout Recovery Pilot 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) Advanced technical credit--Credit earned by a high school student who meets established guidelines for successful completion of an articulated content-enhanced technical course included on the list of courses in the Statewide Articulated Crosswalk established by the Advanced Technical Credit Program, a program accepted by participating colleges and universities for students interested in preparing for college and a technical career that requires postsecondary education.
(2) Dropout Recovery Pilot Program--A pilot program established and implemented by the Texas Education Agency (TEA) in accordance with the Texas Education Code (TEC), Chapter 39, Subchapter L. The pilot program is to provide eligible entities with financial grants to identify and recruit students who have dropped out of Texas public schools and provide them services designed to enable them to earn a high school diploma or demonstrate college readiness.
(3) Eligible student--For the purposes of this section, an eligible student is defined as a student who is 25 years of age or less and who:
(A) was assigned by a Texas public secondary school a leaver code in the Public Education Information Management System (PEIMS) that corresponds to the definition of a dropout for that school year in which the student withdrew;
(B) was enrolled in a Texas public secondary school and during the last regular school year in which the student was enrolled the student was not in attendance for at least 30 consecutive school days. Between this period of non-attendance and enrollment in the Dropout Recovery Pilot Program, the student may not have been enrolled in any Texas public secondary school, private school, or home school; or
(C) has a notarized affidavit from the student's parent or legal guardian stating that the student has dropped out of a Texas public secondary school, as defined in subparagraph (A) or (B) of this paragraph, and is not currently enrolled in a Texas public secondary school, private school, or home school.
(4) Institution of higher education (IHE)--An institution of higher education is any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education as defined in the TEC, §61.003.
(5) Nonprofit organization--An organization that meets the requirements of the United States Code, Title 26, Subtitle A, Chapter 1, Subchapter F, Part I, Section 501(a).
(6) P-16 Individualized graduation plan (P-16 IGP)--A document with a prekindergarten through postsecondary focus, detailing a student's plans regarding courses to be taken during high school in order to succeed in entry-level courses offered at IHEs. A P-16 IGP shall include the following:
(A) the most recent assessment scores and strategies to improve these scores if they fall below the student's appropriate grade level;
(B) the educational goals of the student;
(C) any diagnostic information, appropriate monitoring and intervention and other evaluation strategies;
(D) a description of participation of the student's parent(s) or guardian, including consideration of their educational expectations for the student; and
(E) a description of innovative methods to be used to promote the student's advancement and preparation to enter higher education prepared to succeed in entry-level courses.
(7) School district--For the purposes of this section, the definition of school district includes an open-enrollment charter school.
(8) Shared service arrangement (SSA)--A shared service arrangement is an agreement between two or more eligible applicants (school districts, nonprofit organizations that have demonstrated the ability and capacity to provide educational programs to students in any grade from kindergarten through Grade 12, education service centers, county departments of education) for provision of program services. A nonprofit organization that is not an eligible applicant may participate in the shared service arrangement, but may not serve as the fiscal agent.
(9) Texas Success Initiative (TSI)--An initiative of the Texas Higher Education Coordinating Board established under §4.51 of this title (relating to Purpose).
(b) Eligibility.
(1) The following entities, located in specific regions of the state as established annually in the grant application, are eligible to apply for and receive grant funds under the Dropout Recovery Pilot Program:
(A) school districts;
(B) IHEs;
(C) county departments of education;
(D) nonprofit organizations that have demonstrated the ability and capacity to provide educational programs to students in any grade from kindergarten through Grade 12; and
(E) education service centers established under the TEC, §8.001.
(2) Eligible applicants listed in paragraph (1) of this subsection and other nonprofit organizations may enter into an SSA in order to apply for grant funds. An SSA is limited to no more than ten entities.
(3) The applicant awarded the grant and acting as the fiscal agent for the program must comply with the following conditions of eligibility.
(A) The applicant must have been operating as one of the eligible entities listed in paragraph (1) of this subsection for at least three years prior to the time of grant application.
(B) If an applicant is operating an education program that issues high school diplomas, the applicant must either have:
(i) been granted a charter from the State Board of Education or the local district in which it resides, or a home-rule district in accordance with the TEC, §§12.011, 12.052, and 12.101; or
(ii) earned accreditation through:
(I) the TEA, in accordance with the TEC, §39.071, and §97.1053 of this title (relating to Purpose);
(II) an accrediting entity, operating as a member of the Texas Private School Accreditation Commission; or
(III) another accrediting entity approved by the commissioner of education.
(C) The applicant must be determined by the TEA to be financially stable. The TEA will make this determination using information required of the applicant serving as the fiscal agent and submitted in the grant application, including information provided in the following reports:
(i) an audit report, conducted within the last two years, including a statement of financial position, statement of activities (income), statement of cash flows, note disclosures, and the independent auditor's opinion (standard report);
(ii) if subject to the Single Audit Act of 1996, as amended, the applicant must also include reports in accordance with Government Auditing Standards, as promulgated by the United States Government Accountability Office and Office of Management and Budget Circular A-133; or
(iii) a compilation of financial statements prepared by a certified public accountant, including a report on compiled financial statements, a statement of financial position, statement of activities (income), and statement of cash flow.
(D) All nonprofit organizations, including open-enrollment charter schools but excluding school districts, must submit current proof of nonprofit status. An applicant may show current nonprofit status by any of the following means:
(i) a copy of a letter from the Internal Revenue Service recognizing that contributions to the organization are tax deductible under the Internal Revenue Code, Section 501(c)(3);
(ii) a statement from a state taxing body or the state attorney general certifying that the organization is a nonprofit organization operating within the state and that no part of its net earnings may lawfully benefit any private shareholder or individual;
(iii) a certified copy of the applicant's certificate of incorporation or similar document if it clearly establishes the nonprofit status of the applicant; or
(iv) any item described in this subparagraph if that item applies to a state or national parent organization, together with a statement by the parent organization that it is a local nonprofit affiliate.
(c) Application.
(1) An eligible applicant must submit an application in accordance with procedures determined by the commissioner and detailed in the Request for Application (RFA). The application must include a P-16 Strategic Plan that indicates how implementation of this program will address deficiencies in the grantee's overall P-16 strategy.
(2) Each eligible applicant must meet all deadlines, requirements, and guidelines outlined in the RFA.
(d) Notification. The TEA will notify each applicant in writing of selection or non-selection for funding under the Dropout Recovery Pilot Program. In the case of an application selected for funding, notification to the applicant will include the contractual conditions the applicant agrees to accept as a condition of grant award.
(e) Conditions of pilot program operation. Each grantee operating an approved Dropout Recovery Pilot Program must operate the program in accordance with the requirements outlined in the RFA and must:
(1) conduct an assessment, in accordance with specifications detailed in subsection (f)(4)(B)(ii)-(iii) of this section, for each participating student to determine services needed and create a P-16 IGP for each student based on the assessment;
(2) employ as faculty and administrators persons with baccalaureate or advanced degrees;
(3) meet the following requirement regarding employee criminal history checks:
(A) if a grantee is a school district, the grantee must be in compliance with the TEC, §22.085(f), to remain eligible for the program; or
(B) if a grantee is not a school district, the grantee must obtain criminal history record information as defined in §153.1101(2) of this title (relating to Definitions) on each employee, and an officer of the organization with signature authority must certify that no employee of the organization or person contracted with the organization who has contact with students in the program has been convicted of:
(i) a felony offense under Title 5, Texas Penal Code;
(ii) an offense or conviction of which a defendant is required to register as a sex offender under Code of Criminal Procedure, Chapter 62; and
(iii) an offense under the laws of another state or federal law that is equivalent to an offense under clause (i) or (ii) of this subparagraph; and
(4) ensure that the grant activities funded under the Dropout Recovery Pilot program are non-sectarian.
(f) Funding. Grantees are eligible to receive the following funding.
(1) Base funding. A grantee will receive a base amount of funding, to be determined during the grant application phase, in the first year of operation of the program for the purposes of planning, establishing an appropriate infrastructure to implement the program, and implementing the program for eligible students.
(2) Performance funding. In addition to the base funding, a grantee is eligible to receive performance funding up to a total of $2,000 in the program year (which includes no more than $1,000 in interim benchmark payments and $1,000 in a completion payment) for each eligible student participating in the program based upon the student's academic performance.
(A) Interim benchmark payments. A payment of $250 for any, not to exceed four, of the following benchmarks achieved by an eligible student participating in the program who:
(i) earned the required course credits necessary to advance to the next grade level;
(ii) earned high school graduation credit for a dual credit course that was established through an articulation agreement with an IHE or a private or an independent IHE, as defined in the TEC, §61.003(15);
(iii) earned college credit for a course that is within an IHE's core curriculum, in accordance with §4.28 of this title (relating to Core Curriculum), or an equivalent course offered by a private or an independent IHE, as defined in the TEC, §61.003(15);
(iv) earned a passing score on all subject areas of the statewide student assessment program for a grade level not including the Grade 11 exit-level statewide assessments;
(v) earned a score of three or higher on a College Board advanced placement examination;
(vi) earned a score on the Preliminary SAT®/National Merit Scholarship Qualifying Test or the PLAN® that predicts evidence of readiness, as determined by College Board or ACT®, for placement in College Board advanced placement, International Baccalaureate, or dual credit courses; or
(vii) other benchmarks as approved by the commissioner.
(B) Completion payments. A payment of $1,000 for each participating student who:
(i) earns a high school diploma; or
(ii) demonstrates college readiness by:
(I) achieving a passing score on a TSI testing instrument or earning a TSI exemption based on the score received for an alternative test such as SAT® or ACT®; and
(II) obtaining a General Educational Development (GED) credential; and
(III) earning either:
(-a-) college credit for a course that is within an IHE's approved core curriculum, in accordance with §4.28 of this title, or an equivalent course offered by a private or an independent IHE, as defined in the TEC, §61.003(15); or
(-b-) advanced technical credit.
(3) Other funding for school districts. School districts operating approved Dropout Recovery Pilot Programs may receive Foundation School Program funds for eligible participating students, in accordance with the TEC, §42.003.
(4) Other funding for eligible IHEs, nonprofit organizations, county departments of education, and education service centers. Programs operated by eligible IHEs, nonprofit organizations, county departments of education, and education service centers may receive a payment in an amount not greater than $4,000 ($2,000 per semester) for each eligible student participating in the program each year.
(A) Semester payments of up to $2,000 for each eligible student will be made at the end of each semester contingent upon the eligible student achieving academic progress on the same assessment instrument administered upon initial enrollment in the program and at the end of each subsequent semester.
(B) Programs must adhere to the following in choosing an assessment instrument to assess academic progress as described in subparagraph (A) of this paragraph:
(i) the same assessment instrument must be administered to the participating student for initial testing and at the end of each semester;
(ii) the assessment instrument must be a standardized test or a performance assessment with standardized scoring protocols; and
(iii) the assessment instrument and the performance standards for measuring academic progress must be identified in the grant application and approved by the commissioner prior to grant award.
(g) Allowable expenditures. Allowable expenditures with grant funds include, but are not limited to, the following:
(1) textbooks and other instructional materials;
(2) recruiting and promotional materials;
(3) personnel costs, including salaries, benefits, stipends, and incentives;
(4) tutoring services;
(5) test fees;
(6) social services;
(7) transportation;
(8) educational software;
(9) incentive programs for students;
(10) technology;
(11) equipment costs; and
(12) costs associated with distance learning or participation in virtual schools.
(h) Disallowed expenditures. The following expenditures, including but not limited to the following, may not be made with grant funds:
(1) construction;
(2) purchase of buildings;
(3) debt service (including lease-purchase agreements);
(4) expenditures related to religious instruction;
(5) expenditures related to students who are not eligible for the program; or
(6) indirect costs.
(i) Evaluation. Each grantee operating an approved Dropout Recovery Pilot Program must comply with evaluation procedures established by the commissioner as detailed in the RFA.
(j) Subsequent funding. To receive any subsequent funding for the Dropout Recovery Pilot Program, grantees must reapply for funding on an annual basis. In order to remain eligible for any subsequent funding, the grantee must have met all applicable performance standards included in the prior year's grant agreement and submit a new application annually.
(k) Revocation.
(1) The commissioner may revoke the grant award for the Dropout Recovery Pilot Program based on the following factors:
(A) noncompliance with application assurances and/or the provisions of this section;
(B) lack of program success as evidenced by progress reports and program data;
(C) failure to participate in data collection and audits;
(D) failure to meet performance standards specified in the application; or
(E) failure to provide accurate, timely, and complete information as required by the TEA to evaluate the effectiveness of the Dropout Recovery Pilot Program.
(2) A decision by the commissioner to revoke the grant award of a Dropout Recovery Pilot Program is final and may not be appealed.
(l) Access to records. For grantees that are nongovernmental bodies, access must be granted to all records, including those of the controlling or parent entity, involving transactions and payments of program funds.
(m) Technical assistance. The commissioner may create a technical advisory panel made up of experts and practitioners from areas with experience and expertise in dropout recovery to advise the TEA regarding review criteria and implementation issues. The technical advisory panel may provide technical assistance.
(n) Recovery of funds. The commissioner may audit the use of grant funds and may recover funds against any state provided funds.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 8, 2008.
TRD-200804160
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: August 28, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 475-1497
SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING PHYSICAL FITNESS
The Texas Education Agency (TEA) adopts new §103.1003, concerning student physical activity requirements and exemptions. The new section is adopted without changes from the proposed text as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3542) and will not be republished. The adopted new section implements the requirements of the Texas Education Code (TEC), §28.002, as amended by Senate Bill (SB) 530, 80th Texas Legislature, 2007, which requires that school districts and open-enrollment charter schools require physical activity in Kindergarten-Grade 8 and allow for appropriate exemptions.
Through SB 530, the 80th Texas Legislature amended the TEC, §28.002, requiring school districts to ensure that students in Kindergarten-Grade 8 participate in moderate to vigorous physical activity for at least 30 minutes daily. The TEC, §28.002(l) and (l-1), authorize the commissioner of education to provide exemptions for alternative extracurricular and other structured activities to meet the physical activity requirement.
Adopted new 19 TAC Chapter 103, Health and Safety, Subchapter AA, Commissioner's Rules Concerning Physical Fitness, §103.1003, Student Physical Activity Requirements and Exemptions, implements the TEC, §28.002(l) and (l-1), by specifying options for exemptions at the district level to meet the physical activity requirements in certain grade levels. The adopted new rule includes exemptions for health classifications, an extracurricular activity, a school-related activity, or an activity sponsored by a private league or club. The new rule also provides a definition for structured activity.
The TEA determined that the adopted new rule will have no direct adverse economic impact to small businesses or microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period on the proposal began May 2, 2008, and ended June 1, 2008. Following is a summary of the public comments received and corresponding agency responses regarding proposed new 19 TAC §103.1003, Student Physical Activity Requirements and Exemptions.
Comment. Two educators and one individual commented in support of the proposed rule.
Agency Response. The agency agrees.
Comment. A parent expressed concerns with language in proposed subsection (d) that defines structured activities that would be considered exempt from the physical activity requirement. The parent commented that the proposed language would require off-campus physical activity providers, such as those for private league or club activities, to teach the Texas Essential Knowledge and Skills (TEKS) for physical education in 19 TAC Chapter 116 in their entirety. The parent also stated that the school district in the community in which he resides currently permits physical activity exemptions for students participating in private Olympic-level activities, as authorized by 19 TAC §74.11. The parent noted that since private Olympic-level activities do not necessarily address all the competencies listed in 19 TAC Chapter 116, it may be very difficult for students to continue obtaining these exemptions. The parent further stated that the requirement seems inconsistent with the intent of SB 530 and recommended changes to the rule text to address his concerns.
Agency Response. The agency disagrees and maintains language as published as proposed. The proposed language does not impede upon the district's ability to direct the teaching of the TEKS. The rule provides for a structured activity to be based on the grade appropriate movement, physical activity and health, and social development strands of the TEKS for physical education, not individual student expectations within the TEKS.
Comment. Two educators from Alief Independent School District (ISD) commented that minimum physical activity requirements should not apply to students in Grade 6 who attend an intermediate school. The educators expressed concern that intermediate schools do not have the resources available to implement the new rule, such as large gyms, tracks, weight rooms, and dressing rooms.
Agency Response. The agency disagrees and maintains language as published as proposed. The legislation and proposed rule provide flexibility for meeting the physical activity requirement throughout Grades 6, 7, and 8. In addition, intermediate schools are not solely responsible for meeting this requirement. The responsibility to ensure that students in Grades 6, 7, and 8 meet the requirement will be shared across the district.
Comment. An individual commented that there is not enough time in the school day to support the minimum physical activity requirement. The individual stated that it is extremely difficult, at best, to accomplish the necessary instructional time for core subject areas already.
Agency Response. The agency disagrees and maintains language as published as proposed. The new rule provides flexibility that will allow school districts to develop options and opportunities for students to be physically active.
Comment. An individual commented that school health initiatives will need the support of academic and administrative teams.
Agency Response. The agency agrees.
Comment. A counselor from Ector County ISD and an educator commented that the minimum physical activity requirement will limit students' opportunities to take elective courses. The counselor also commented that students should be allowed to explore other elective options in eighth grade, in particular if the students have taken eight years of physical education in Kindergarten-Grade 7. The educator also commented that students will not participate in physical activity.
Agency Response. The agency disagrees and maintains language as published as proposed. The new rule provides flexibility for meeting the physical activity requirement, while allowing school districts to maintain elective options and providing students with opportunities to be physically active.
The new section is adopted under the Texas Education Code, §28.002(l) and (l-1), which authorize the commissioner of education to adopt rules to provide exemptions for alternative extracurricular and other structured activities to meet the physical activity requirement. TEC, §28.002(l), requires that school districts and open-enrollment charter schools require physical activity in Kindergarten-Grade 8 and allow for appropriate exemptions.
The new section implements the Texas Education Code, §28.002(l) and (l-1).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 8, 2008.
TRD-200804161
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: August 28, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 475-1497