Proposed Rules Title 19

TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 70. TECHNOLOGY-BASED INSTRUCTION

SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING STATE VIRTUAL SCHOOL NETWORK

19 TAC §70.1001

The Texas Education Agency (TEA) proposes new §70.1001, concerning criteria for electronic courses. The proposed new rule would establish quality-related criteria for electronic courses authorized by Senate Bill (SB) 1788, 80th Texas Legislature, 2007.

SB 1788, 80th Texas Legislature, 2007, created the Texas Education Code (TEC), Chapter 30A, to establish a state virtual school network (SVSN) to provide education to students through electronic courses delivered via the Internet. The statute authorizes the TEA to evaluate courses offered through the SVSN for certain criteria, including quality-related criteria for the courses.

Proposed new 19 TAC §70.1001, Criteria for Electronic Courses, would specify the quality-related criteria used by the TEA to evaluate and approve electronic courses submitted for inclusion in the SVSN. Specifically, the rule would establish the National Standards of Quality for Online Courses endorsed by the North American Council for Online Learning as the quality-related criteria for electronic courses.

Anita Givens, acting associate commissioner for standards and programs, has determined that for the first five-year period the new rule is in effect there will be no additional costs for state or local government as a result of enforcing or administering the new rule.

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.

Ms. Givens has determined that for each year of the first five years the new rule is in effect the public benefit anticipated as a result of enforcing the new rule will be electronic courses that have been reviewed to ensure compliance with quality guidelines. The electronic courses will provide additional options to students and allow school districts and open-enrollment charter schools to expand their curriculum, offer the full schedule of courses required by the Recommended High School Program and the Distinguished Achievement High School Program, and meet the individual needs of their students. There is no anticipated economic cost to persons who are required to comply with the proposed new rule.

The public comment period on the proposal begins January 2, 2009, and ends February 2, 2009. 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 January 2, 2009.

The new rule is proposed under the TEC, §30A.103, which authorizes the commissioner of education to adopt rules to establish additional quality-related criteria for electronic courses offered through the state virtual school network.

The proposed new rule implements the TEC, §30A.103.

§70.1001.Criteria for Electronic Courses.

(a) Quality-related criteria.

(1) The National Standards of Quality for Online Courses endorsed by the North American Council for Online Learning (NACOL) are established by the commissioner of education as the quality-related criteria for electronic courses under the Texas Education Code (TEC), §30A.103(c).

(2) The Texas Education Agency (TEA) shall use the most recent National Standards of Quality for Online Courses endorsed by the NACOL to evaluate courses submitted for offering through the state virtual school network (SVSN), as specified in the annual course submission and approval schedule established by the TEA.

(3) Electronic courses must meet the National Standards of Quality for Online Courses and be approved by the TEA to be offered through the SVSN.

(b) Course criteria. Electronic courses offered through the SVSN must meet general course eligibility requirements in accordance with the TEC, §30A.104.

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 December 19, 2008.

TRD-200806640

Cristina De La Fuente-Valadez

Director, Policy Coordinator

Texas Education Agency

Earliest possible date of adoption: February 1, 2009

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

CHAPTER 100. CHARTERS

SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING OPEN-ENROLLMENT CHARTER SCHOOLS

DIVISION 2. COMMISSIONER ACTION AND INTERVENTION

19 TAC §100.1033

The Texas Education Agency (TEA) proposes an amendment to §100.1033, concerning open-enrollment charter schools. The section addresses charter amendments. The proposed amendment would include language to allow charter holders to submit a new type of substantive amendment request for commissioner approval. This rule action is proposed pursuant to amended federal non-regulatory guidance for the Elementary and Secondary Education Act (ESEA), Section 5202(d)(1).

Texas Education Code (TEC), §12.114, states that a revision of a charter of an open-enrollment charter school may be made only with the approval of the commissioner. The commissioner of education adopted 19 TAC §100.1033, Charter Amendment, to establish and implement policies and procedures regarding charter amendments. The rule was initially adopted to be effective April 18, 2002, and was last amended to be effective April 6, 2005.

A recent revision to the federal non-regulatory guidance in the ESEA, Section 5202(d)(1), states that a state education agency may award Charter School Program (CSP) start-up subgrants to multiple charter schools established under a single charter where the charter schools meet the CSP definition of "charter school" and truly are separate and distinct from each other.

The proposed amendment to 19 TAC §100.1033 would revise subsection (c), relating to substantive charter amendments, by adding a new paragraph (6) and renumbering the subsequent paragraph accordingly. The proposed new paragraph would add language that permits a charter holder to establish an additional charter school under an existing open-enrollment charter in accordance with the recently revised federal guidelines. The proposed new language would provide the requirements by which the commissioner of education may approve such an amendment request.

No new data collection requirements would result from the proposal. The proposed rule action would require that new school amendments be submitted to the TEA in accordance with the current expansion amendment process. If the charter holder is deemed eligible to apply, the charter holder will be required to complete an application for new school status.

The current procedures require recipients of the CSP start-up funds to submit all information requested by the TEA through periodic activity/progress reports and a final evaluation report. Reports will be due to the TEA no later than 30 days after the close of the reporting period and must contain all requested information in the prescribed format. These reports will be used by the TEA project administrator to evaluate the implementation and progress of grant-funded programs and to determine if modifications or adjustments to the program are necessary.

Laura Taylor, acting associate commissioner for accreditation, has determined that for the first five-year period the amendment is in effect there will be no additional costs for state or local government as a result of enforcing or administering the amendment. Although the proposed amendment itself offers no additional fiscal impact, the revision to this section would allow the TEA to fund CSP start-up grant awards to new charter schools created via the amendment process. The amount of the grant awards will be dependent on the number of charter schools that are eligible for these funds and the amount of federal funds available for this purpose under the ESEA, Section 5201.

Ms. Taylor has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be to help increase the number of high-quality charter schools available to students across the state, in accordance with the ESEA, Section 5201(3). There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

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 amendment is proposed under the TEC, Chapter 12, Subchapter D, which authorizes the commissioner of education to adopt rules and procedures related to the implementation of open-enrollment charter schools. TEC, §12.114, authorizes the commissioner to establish a procedure for approval of charter amendments. TEC, §12.114, states that a revision of a charter of an open-enrollment charter school may be made only with the approval of the commissioner.

The proposed amendment implements the TEC, Chapter 12, Subchapter D.

§100.1033.Charter Amendment.

(a) (No change.)

(b) Non-substantive amendment. A non-substantive amendment is any change to the terms of an open-enrollment charter that is not a substantive amendment under subsection (c) of this section.

(1) - (2) (No change.)

(3) Absent action by the commissioner under paragraph [ ~~subsection (b)~~] (2) of this subsection [~~section~~ ], the notice of non-substantive amendment shall be effective after the expiration of 15 business days following receipt of the notice by the TEA division responsible for charter schools.

(c) Substantive amendment. A substantive amendment is any change to the terms of an open-enrollment charter that relates to the following subjects: grade levels, maximum enrollment, geographic boundaries, approved sites, school name, charter holder name, charter holder governance, articles of incorporation, corporate bylaws, management company, admission policy, or the educational program of the school. For purposes of this section, educational program means the educational philosophy or mission of the school or curriculum models or whole-school designs that are inconsistent with those specified in the school's charter. A substantive amendment must be approved by the commissioner under this subsection.

(1) - (4) (No change.)

(5) Expansion amendment. An expansion amendment is a substantive amendment that permits a charter school to extend the grade levels it serves, add the site of an instructional facility, change its geographic boundaries, or increase its maximum allowable enrollment.

(A) - (B) (No change.)

(C) In addition to the requirements of subparagraph (A) of this paragraph, the commissioner may approve an expansion amendment request seeking to increase maximum allowable enrollment only if:

(i) - (ii) (No change.)

(iii) the board resolution required by paragraph (1) of this subsection includes a statement that the charter holder board has considered the business plan required by clause (ii) of this subparagraph [~~paragraph~~ ] and has determined by majority vote of the board that the enrollment growth proposed in the business plan is prudent; and

(iv) on request, the charter holder files the business plan required by clause (ii) of this subparagraph with the TEA division responsible for charters schools within ten business days.

(D) - (E) (No change.)

(6) New school amendment. A new school amendment is an expansion amendment that permits a charter holder to establish an additional charter school under an existing open-enrollment charter pursuant to federal non-regulatory guidance in the Elementary Secondary Education Act (ESEA), Section 5202(d)(1), as amended.

(A) The commissioner may approve a new school amendment only if:

(i) the charter holder meets all requirements applicable to expansion amendments and substantive amendments set forth in this section;

(ii) the charter holder has been evaluated under the accountability rating system established in §97.1001 of this title (relating to Accountability Rating System):

(I) under the standard accountability procedures for the three preceding rating periods and received a district rating of Exemplary or Recognized for each of those rating periods;

(II) under the standard accountability procedures for six or more years and received a campus rating on at least one campus of Exemplary or Recognized for at least 50% of the evaluation periods at this campus and with no campuses rated Academically Unacceptable or Low-Performing within the six-year period; or

(III) under the alternative education accountability (AEA) procedures for the three preceding rating periods, received a rating of AEA: Academically Acceptable in each of the three preceding rating periods, and had Texas Assessment of Knowledge and Skills Progress Indicator rates of 80% or higher for all students in each of those rating periods;

(iii) the charter holder has not been placed in Stages 1-5 in the No Child Left Behind school improvement program for failure to meet Adequate Yearly Progress at any campus or the district in the most current reported year;

(iv) the charter holder completes an application approved by the commissioner;

(v) the new charter school will serve at least 50 students;

(vi) the amendment complies with all requirements of this paragraph; and

(vii) the commissioner determines that the amendment is in the best interest of the students of Texas.

(B) In addition to the requirements of subparagraph (A) of this paragraph, the commissioner may approve a new school amendment only on making the following written findings:

(i) the proposed school satisfies each element of the definition of a public charter school as set forth in the ESEA, Section 5210(1);

(ii) the proposed school is not merely an extension of an existing charter school;

(iii) the proposed school is separate and distinct from the existing charter school(s) established under the open-enrollment charter; and

(iv) the open-enrollment charter, as amended, includes a separate written performance agreement for the proposed school that meets the requirements of the ESEA, Section 5210(1)(L), and the Texas Education Code (TEC), §12.111(a)(3) and (4).

(i) the terms of the open-enrollment charter as a whole, as modified by the new school amendment; and

(ii) whether the proposed school shall be established and recognized as a separate school under Texas law.

(D) In making the findings required by subparagraph (B)(ii) and (iii) of this paragraph, the commissioner shall consider whether the proposed school and the existing charter school(s) have separate sites, employees, student populations, and governing bodies and whether their day-to-day operations are carried out by different officers. The presence or absence of any one of these elements, by itself, does not determine whether the proposed school will be found to be separate or part of an existing school. However, the presence or absence of several elements will inform the commissioner's decision.

(E) In making the finding required by subparagraph (B)(iv) of this paragraph, the commissioner shall consider:

(i) whether the proposed school and the existing charter school(s) have distinctly different requirements in their respective written performance agreements; and

(ii) the extent to which the performance agreement for the proposed school imposes higher standards than those imposed by the TEC, §12.104(b)(2)(L).

(F) Failure to meet or exceed a standard in a performance agreement under subparagraph (B)(iv) of this paragraph shall require the commissioner to modify the open-enrollment charter to remove authority for the additional school under §100.1022 of this title (relating to Standards for Adverse Action on an Open-Enrollment Charter).

(7) [~~(6)~~] Delegation amendment. A delegation amendment is a substantive amendment that permits a charter holder to delegate, pursuant to §100.1101(c) of this title (relating to Delegation of Powers and Duties), the powers or duties of the governing body of the charter holder to any other person or entity.

(A) The commissioner may approve a delegation amendment only if:

(i) the charter holder meets all requirements applicable to delegation amendments and substantive amendments generally;

(ii) the amendment complies with all requirements of Division 5 of this title (relating to Charter School Governance); and

(iii) the commissioner determines that the amendment is in the best interest of the students enrolled in the charter school.

(B) The commissioner may grant the amendment without condition or may require compliance with such conditions and/or requirements as may be in the best interest of the students enrolled in the charter school.

(C) The following powers and duties must generally be exercised by the governing body of the charter holder itself, acting as a body corporate in meetings posted in compliance with Government Code, Chapter 551. Absent a specific written exception of this subparagraph, setting forth good cause why a specific function listed in clauses (i) - (vi) of this subparagraph cannot reasonably be carried out by the charter holder governing body, the commissioner may not grant an amendment delegating such functions to any person or entity through a contract for management services or otherwise. An amendment that is not authorized by such a specific written exception is not effective for any purpose. Absent such exception, the governing body of the charter holder shall not delegate:

(i) final authority to hear or decide employee grievances, citizen complaints, or parental concerns;

(ii) final authority to adopt or amend the budget of the charter holder or the charter school, or to authorize the expenditure or obligation of state funds or the use of public property;

(iii) final authority to direct the disposition or safekeeping of public records; except that the governing body may delegate this function to any person, subject to the governing body's superior right of immediate access to, control over, and possession of such records;

(iv) final authority to adopt policies governing charter school operations;

(v) final authority to approve audit reports under TEC, §44.008(d); or

(vi) initial or final authority to select, employ, direct, evaluate, renew, non-renew, terminate, or set compensation for a chief executive officer.

(D) The following powers and duties must generally be exercised by the chief executive officer of the charter holder. Absent a specific written exception of this subparagraph, setting forth good cause why a specific function listed in clauses (i) - (iii) of this subparagraph cannot reasonably be carried out by the chief executive officer of the charter holder, the commissioner may not grant an amendment permitting the chief executive officer to delegate such function through a contract for management services or otherwise. An amendment that is not authorized by such a specific written exception is not effective for any purpose. Absent such exception, the chief executive officer of the charter holder shall not delegate final authority:

(i) to organize the charter school's central administration;

(ii) to approve reports or data submissions required by law; or

(iii) to select charter school employees or officers.

(d) (No change.)