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 proposes an amendment to §5.6 concerning the Common Admission Application. Specifically, the proposed amendment to §5.6(f) would delete 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, any institution of higher education that admits freshman-level or undergraduate transfer students, other than general academic teaching institutions, is now 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.
Ms. Lois Hollis, Senior Assistant to the Deputy Commissioner for Business and Finance, has determined that for each year of the first five years the amendment is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.
Ms. Hollis has also determined that for each year of the first five years the amendment is in effect, the public benefit anticipated as a result of administering the sections will be clarification of the shared cost of the common application system by participating institutions. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.
Comments on the proposal may be submitted to Lois Hollis, P.O. Box 12788, Austin, Texas 78711, (512) 427-6165, lois.hollis@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
The amendment is proposed under the Texas Education Code, §51.762, which provides the Coordinating Board with the authority to adopt rules for the common admission application.
The amendment affects §51.762.
§5.6.Common Admission Application.
(a) - (e) (No change.)
(f) The Coordinating Board shall enter into a contract
with a public institution of higher education to maintain the electronic
common application system for use by the public in applying for admission
to participating institutions and for distribution of the electronic
application to the participating institutions designated by the applicant.
Operating costs of the system will be paid for by all institutions
required to use the common application plus those institutions that
have contracted for use of the electronic application. Each participating
institution will pay a portion of the cost based on the percentage
of its enrollment compared to the total enrollment of all participating
institutions based on the previous year's certified enrollment data.
[However, the Coordinating Board may, by contract, implement
a reduced rate for participating community colleges.
] The Coordinating
Board will monitor the cost of the system and notify the institutions
on an annual basis of their share of the cost. Billings for the services
for the coming year will be calculated and sent to the institutions
in March and payments must be received by September 15.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 12, 2008.
TRD-200802450
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Proposed date of adoption: July 24, 2008
For further information, please call: (512) 427-6114
Chapter 153. SCHOOL DISTRICT PERSONNEL
Subchapter DD. CRIMINAL HISTORY RECORD INFORMATION REVIEW
The Texas Education Agency (TEA) proposes an amendment to §153.1101 and new §153.1117, concerning criminal history record information review. Section 153.1101 establishes definitions for applicable words and terms. The proposed rule actions would implement the requirements of the Texas Education Code (TEC), §22.0834, as added by Senate Bill 9, 80th Texas Legislature, 2007, which requires the criminal history record information review of certain contract employees of a school district, open-enrollment charter school, and shared services arrangement.
TEC, §22.0834, authorizes the commissioner of education to adopt rules as necessary to implement the criminal history record information review of certain contract employees. The statute requires entities that contract with public schools to obtain criminal history record information for their employees who have continuing contract duties and direct contact with students, but it does not define those terms. In addition, the statute does not address other issues related to what types of contracts and contractors are covered by its requirements.
Due to the uncertainty as to the application and interpretation of the TEC, §22.0834, a stakeholder meeting was held by TEA staff on February 25, 2008, to discuss the possibility of adopting commissioner's rules to help implement this section. Interested individuals and representatives of associations of construction contractors and subcontractors, school boards, school administrators, school personnel administrators, sports officials, educators, the University Interscholastic League, and other extracurricular organizations appeared and presented comments regarding the potential effects of failing to address the uncertainty regarding the implementation of the TEC, §22.0834. The stakeholders also proposed possible rule language. Although the specific rule proposals differed in some respects, the consensus of the meeting was that a commissioner's rule to help implement the TEC, §22.0834, is desperately needed.
The proposed amendment to 19 TAC §157.1101, Definitions, would add definitions for "continuing duties related to contracted services," "date of employment," "date of securing services," "direct contact with students," and "service contractor." The proposed amendment would also state more specifically the criteria for determining which employees and contractors are covered.
Proposed new 19 TAC §157.1117, School Contractor Employees, would describe in more detail the obligations and responsibilities of school contractors and school entities to obtain the required criminal history record information.
The proposed rule actions will not have any TEA reporting requirements, as the TEA will not receive or review the required criminal history record information. The TEC, §22.0834, already requires school districts and school contractors to obtain this information and requires the Texas Department of Public Safety to report that which is national criminal history record information through a clearinghouse. The proposed rule actions will not add any additional procedural or reporting requirements and will, in fact, reduce those requirements by clarifying which school contractors are not subject to a criminal history record information review.
The proposed rule actions will not add any additional locally maintained paperwork requirements and should actually decrease procedural and reporting requirements as previously described.
Karen Loonam, deputy associate commissioner for educator certification and standards, has determined that for the first five-year period the amendment and new section are in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the amendment and new section because the obligation to obtain the required criminal history record information was imposed by the TEC, §22.0834, not by the proposed rules. The proposal will reduce the fiscal impact on schools and school contractors by clarifying which school contractors are not subject to a criminal history record information review. The TEA will not incur any costs as a result of the proposed rule actions because neither the rules nor the statute requires the TEA to receive or review any of the information that the TEC, §22.0834, requires schools and school contractors to obtain.
Dr. Loonam has determined that for each year of the first five years the amendment and new section are in effect the public benefit anticipated as a result of enforcing the amendment and new section will be implementation of the legislative mandate to obtain national criminal histories on covered school contractor employees, resulting in a safer school environment for both students and educators. There is no anticipated economic cost to persons who are required to comply with the proposed amendment. Although many of the school contractors who would be affected by the proposed rule actions are individuals, they would be acting as independent contractors if they are covered by the TEC, §22.0834, so their savings are addressed with savings estimated for microbusinesses.
There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required. The legislature has determined that the information required by the TEC, §22.0834, is necessary for the health, safety, and welfare of the state. However, if these proposed rule actions are not adopted, it is probable that school districts and school contractors, many of whom are small businesses or microbusinesses, will incur unnecessary fiscal costs because of the current uncertainty as to the application and interpretation of the TEC, §22.0834. The proposed rule actions will minimize the impact on small businesses and microbusinesses to as great an extent as possible consistent with the legislative intent to require that criminal history record information be obtained on all school contractor employees who, as a result of their contract services, may have the opportunity for unsupervised contact with students.
It is difficult to calculate the economic savings that will result from the proposed rule actions, but it is estimated that as many as 20,000 to 30,000 sports officials, University Interscholastic League judges, and other school contractors who do not have unsupervised interaction with students in the performance for their contract services will not be required to obtain national criminal history record information. The cost of these searches would have had to be paid either by school districts or small businesses and/or microbusinesses. The total estimated costs for criminal history record information reviews for these "non-covered" contract employees would be $600,000 for fiscal year 2009 and $200,000 each year for fiscal years 2010-2013 for an estimated total savings of $1.4 million over the next five fiscal years.
The public comment period on the proposal begins May 23, 2008, and ends June 22, 2008. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register on May 23, 2008.
The amendment and new section are proposed under the Texas Education Code, §22.0834, as added by Senate Bill 9, 80th Texas Legislature, 2007, which authorizes the commissioner to adopt rules as necessary to implement criminal history record information review of certain contract employees.
The amendment and new section implement the Texas Education Code, §22.0834.
§153.1101.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Clearinghouse--The criminal history clearinghouse established by the Texas Department of Public Safety (DPS) pursuant to the Texas Government Code, §411.0845.
(2) Continuing duties related to contracted services--Work duties that are performed pursuant to a contract to provide services to a school entity on a regular, repeated basis rather than infrequently or one-time only.
(3) Covered contract employee--An individual who:
(A) is employed or offered employment by a service contractor or a subcontractor of a service contractor, is an individual independent contractor of the school entity, or is an individual subcontractor of a service contractor;
(B) has or will have continuing duties related to the contracted services;
(C) has or will have direct contact with students; and
(D) is not a student in the school entity where the services are performed.
(4) [(2)] Criminal history record
information--In accordance with the Texas Government Code, §411.082(2),
information collected about a person by the DPS, a law enforcement
or a criminal justice agency, or a private entity governed by the
Fair Credit Reporting Act (15 U.S.C. Section 1681 et seq.) that consists
of identifiable descriptions and notations of arrests, detentions,
indictments, informations, and other formal criminal charges and their
dispositions. [
The term does not include fingerprint identification
information.]
(5) Date of employment--For purposes of the Texas Education Code (TEC), §22.0834, the date of employment by an entity that contracts with a school entity shall be deemed to be:
(A) with respect to an individual independent contractor, the date of the contract or agreement to provide services to the school entity; and
(B) with respect to a covered contract employee of a service contractor, the date the employee began providing services to the contractor for compensation.
(6) Date of securing services--For purposes of the TEC, §22.0834(c), the date of securing the services of a covered contract employee by an entity that contracts with a school entity shall be deemed to be the date the employee accepts an offer from the service contractor for a specific job position or for the performance of a specific project that is to begin on a date that is certain or reasonably ascertainable.
(7) Direct contact with students--The contact that results from activities that provide substantial opportunity for verbal or physical interaction with students that is not supervised by a certified educator or other professional district employee. Contact with students that results from services that do not provide the opportunity for unsupervised interaction with an individual student, such as addressing an assembly, officiating a sports contest, or judging an extracurricular event, is not, by itself, direct contact with students. However, direct contact with students does result from any activity that provides the opportunity for unsupervised contact with students, such as, without limitation, the provision of individualized coaching, tutoring, or other services.
(8) [(3)] National criminal
history record information--In accordance with the
TEC, [Texas Education Code,
] §22.081, criminal history record
information obtained from both the DPS and the Federal Bureau of Investigation
based on fingerprint identification information.
(9) [(4)] School entity--A
Texas school district, an open-enrollment charter school,
or a shared services arrangement.
(10) Service contractor--An entity, including an individual independent contractor, that contracts or agrees with a school entity to provide services through individuals who receive compensation, whether by written agreement or verbal understanding. A government entity that provides services such as, without limitation, monitoring, compliance, and technical assistance, to a school entity through individuals that are employed and compensated by the government entity, is also a service contractor.
(11) [(5)] Substitute teacher--A
teacher who is on call or on a list of approved substitutes to replace
a regular teacher and has no regular or guaranteed hours. A substitute
teacher may be certified or noncertified.
§153.1117.School Contractor Employees.
(a) Purpose. Pursuant to the Texas Education Code (TEC), §22.0834, this section implements the criminal history record information review of certain school entity contract employees required by the TEC, §22.0834.
(b) District responsibilities.
(1) Required contractor criminal histories. A school entity shall ensure that each of its service contractors certify that the service contractor has obtained all criminal history record information for covered contract employees, as required by the TEC, §22.0834.
(2) Emergencies. In an emergency, a school entity may allow a covered contract employee to enter school entity property, without the required criminal history record information review, if the covered contract employee is accompanied by a school entity employee. A school entity may adopt rules regarding an emergency situation.
(3) Standards for criminal history review. A school entity may not allow a covered contract employee to serve at the school entity if the school entity obtains information through a criminal history record information review that the covered contract employee has a disqualifying conviction under the TEC, §22.085. However, if it chooses, a school entity may adopt a stricter standard related to criminal history record information than that of the TEC, §22.085.
(4) Required reports. Pursuant to §249.14(d)(1) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition), if a school entity obtains information that a covered contract employee who holds a certificate issued by the State Board for Educator Certification (SBEC) has a reported criminal history, the superintendent, the superintendent's designee, or the director of the school entity shall notify the SBEC of that criminal history within seven calendar days of the date that information is obtained.
(c) Contractor responsibilities.
(1) Contract employee criminal history requirement. A service contractor shall obtain and ensure that its subcontractors obtain all criminal history record information that is required by the TEC, §22.0834, for all its covered contract employees and the covered contract employees of its subcontractors. If a service contractor determines that a person is not a covered contract employee, the service contractor shall make reasonable efforts to ensure that the conditions or precautions that result in such a determination continue to exist throughout the time that the contracted services are provided.
(2) National criminal history record information. As required by the TEC, §22.0834, before or immediately after employing or securing the services of a covered contract employee on or after January 1, 2008, who is not an applicant for or holder of a certificate under the TEC, Chapter 21, Subchapter B, a service contractor shall send or ensure that a covered contract employee sends to the Texas Department of Public Safety (DPS) the information, which may include fingerprints and photographs, that is necessary for the DPS to obtain the covered contract employee's national criminal history record information. The DPS shall report the national criminal history record information through the Clearinghouse, as provided by the Texas Government Code, §411.0845.
(3) Criminal history record information. As required by the TEC, §22.0834, a service contractor shall obtain from the DPS, any law enforcement or criminal justice agency, or a private entity that is a consumer reporting agency governed by the Fair Credit Reporting Act all criminal history record information that relates to a covered contract employee who is employed before January 1, 2008, or who is an applicant for or holder of a certificate under the TEC, Chapter 21, Subchapter B, and who is not subject to a national criminal history record information review.
(4) School entity request for criminal history record information. A service contractor shall provide a school entity, at its request, the criminal history record information for its covered contract employees required by the TEC, §22.0834.
(5) Service contractor certification. A service contractor shall certify to the school entity that it has obtained all criminal history record information for its covered contract employees required by the TEC, §22.0834. The service contractor shall also certify that it will take reasonable steps to ensure that the conditions or precautions that have resulted in a determination that any person is not a covered contract employee continue to exist throughout the time that the contracted services are provided.
(6) Employees with disqualifying convictions. A service contractor shall not permit a covered contract employee to provide services at a school entity if the employee has a disqualifying conviction under the TEC, §22.085.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 8, 2008.
TRD-200802424
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Earliest possible date of adoption: June 22, 2008
For further information, please call: (512) 475-1497