PART 2. TEXAS EDUCATION AGENCY
CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS
SUBCHAPTER HH. COMMISSIONER'S RULES CONCERNING EDUCATION IN A JUVENILE RESIDENTIAL FACILITY
The Texas Education Agency (TEA) adopts new §89.1801, concerning education in a juvenile residential facility. The new rule is adopted with changes to the proposed text as published in the January 9, 2009, issue of the Texas Register (34 TexReg 165). In accordance with the Texas Education Code (TEC), §37.0062, the adopted new rule establishes instructional requirements for education services provided by a school district or open-enrollment charter school in a pre-adjudication or a post-adjudication residential facility.
Juvenile detention centers are short-term, pre-adjudication or post-adjudication secure facilities. Administered by a juvenile board or a privately operated facility certified by the juvenile board, these facilities are designed for the temporary placement of any juvenile or other individual who is accused of having committed an offense and is awaiting court action, an administrative hearing, or other transfer action. Post-adjudication secure correctional facilities operated by the Texas Youth Commission are administered in the same way, but are intended for the treatment and rehabilitation of youth who have been adjudicated.
School districts are required to provide education to students placed in pre-adjudication or post-adjudication juvenile residential facilities, but the level of education varies across the state and in many instances there is minimal education provided to these students due to the lack of education standards.
House Bill (HB) 425, 80th Texas Legislature, 2007, amended the TEC, Chapter 37, by adding the TEC, §37.0062, giving the commissioner of education authority to adopt rules to establish the instructional requirements for education services provided by a school district or open-enrollment charter school in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility operated by a juvenile board or a post-adjudication secure correctional facility operated under contract with the Texas Youth Commission. Until 2007, instructional requirements for education services for residential facilities were not addressed under the TEC, Chapter 37.
HB 425 requires the commissioner to coordinate with the Texas Juvenile Probation Commission and the Texas Youth Commission in determining the instructional requirements in pre- and post-adjudication residential facilities to ensure that students who are detained have access to a quality education.
The adopted new 19 TAC §89.1801 implements the TEC, §37.0062, by establishing in rule educational standards for instructional requirements for pre- and post-adjudication residential facilities. As directed by statute, the adopted new rule includes provisions relating to the length of the school day, the number of days of instruction provided to students each school year, and the curriculum of the educational program to enable students to maintain progress toward completing high school graduation requirements.
In response to public comment, proposed new 19 TAC §89.1801 was modified at adoption to clarify that the ten days referenced in subsection (b)(1) is ten school days.
The adopted new rule has no procedural and reporting implications. The new rule will have locally maintained paperwork requirements. The new rule requires school districts, open-enrollment charter schools, and pre- and post-adjudication residential facilities to maintain documentation of educational services that are provided to students.
The TEA determined that the new rule will have no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period on the proposal began on January 9, 2009, and ended on February 9, 2009. Following is a summary of public comments received and corresponding agency responses regarding proposed new 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter HH, Commissioner's Rules Concerning Education in a Juvenile Residential Facility, §89.1801, Instructional Requirements for Education Services Provided in a Juvenile Residential Facility.
§89.1801(b)
Comment. Smith County Juvenile Services commented that one of the key provisions of the proposed new rule, specified in subsection (b)(1), requires that the school district providing education services in a pre-adjudication secure detention facility ensure that a student is enrolled in its school district, or by local agreement, in the student's locally-assigned school district on the first school day after the student's arrival at the facility unless it is confirmed that the student will return to a different district within ten days. Smith County Juvenile Services requested clarification regarding the definition of "locally-assigned school district" and the definition of "ten days."
Agency Response. The agency agrees that clarification is needed for "ten days" and has modified subsection (b)(1) to specify that a student is to be enrolled unless returning to a different district within ten school days. The agency disagrees that further clarification is needed for the term "locally-assigned district." This is the district in which the student would otherwise reside if not detained at a juvenile residential facility.
Comment. Smith County Juvenile Services recommended approaching pre-adjudication and post-adjudication facilities differently due to the inherent differences related to them, including, but not limited to, pre-adjudication has pending court involvement and the residents are more transient than the residents in a post-adjudication facility. The commenter also stated that pre-adjudication facilities are intended to be a continuation of educational services while juveniles are detained (a stop-gap measure) whereas post-adjudication facilities may be educational service providers.
Agency Response. The agency agrees. The rule differentiates between pre- and post-adjudication facilities, in particular in subsections (b), (d), and (e).
§89.1801(c)
Comment. Dallas County Juvenile Justice Charter School commented that proposed new subsection (c) ensures that the classroom ratio does not exceed one certified educator to 24 students and expressed concern with the qualifier, "certified." The commenter stated that certified staff are not necessarily highly-qualified staff. The commenter noted that highly-qualified status is dependent on what the teacher teaches (grade level and subject). The commenter recommended that it would be more beneficial for educational entities if the language indicated "highly qualified" educator as opposed to "certified" educator. The commenter expressed concern that certified does not necessarily mean highly qualified and that schools are mandated by the No Child Left Behind Act to have highly-qualified staff.
Agency Response. The agency disagrees. School districts are to employ only teachers who meet all certification requirements established under the TEC, Chapter 21, Subchapter B. The intent of the rule is that the students be served by certified teachers.
Comment. Victoria Regional Juvenile Justice Center requested clarification pertaining to the standards for teachers at residential facilities.
Agency Response. The agency provides the following clarification. The standards for teachers at residential facilities are equivalent to those at regular campuses requiring districts to employ only teachers who meet all certification requirements established under the TEC, Subchapter B, Chapter 21.
§89.1801(e)
Comment. Dallas County Juvenile Justice Charter School commented that proposed new subsection (e) states that the curriculum of the educational program shall provide students with the courses necessary to complete the minimum high school program. The commenter stated that providing certain subjects and courses specified in the minimum high school program such as physical education, health education, speech, technology applications, and elective courses in a secure facility may present safety, security, or logistical issues.
Agency Response. The agency disagrees. The agency has determined that subsection (e) ensures that students who are detained in a residential facility have access to a quality education that includes at least the minimum high school graduation requirements. A student must be offered an opportunity to complete specific foundation curriculum courses, which allow a student to remain on track to complete foundation curriculum courses on the same schedule despite having been removed from the student's regular educational setting.
Comment. Victoria Regional Juvenile Justice Center requested clarification pertaining to the provision of the state minimum curriculum.
Agency Response. The agency provides the following clarification. Residential facilities will provide the state minimum curriculum of 22 credits. The agency has determined that 19 TAC §89.1801(e)(1) ensures that a student is not placed on a less demanding graduation plan. Second, a student must be offered an opportunity to complete specific foundation curriculum courses which allow a student to remain on track to complete foundation curriculum courses on the same schedule despite having been removed. A juvenile justice alternative education program may offer a student a different enrichment curriculum course, but must provide an opportunity to complete the same course in the foundation curriculum in which the student was enrolled at the time of removal.
§89.1801(e)(5)
Comment. Galveston County Juvenile Justice Department stated that although it was supportive of the current content, it recommended that this rule provide for a student who successfully tests and attains a General Educational Development Certificate to be counted as a successful educational outcome in the Public Education Information Management System (PEIMS) data of the student's locally-assigned school district. The commenter stated that the attainment of a General Educational Development Certificate is often a major accomplishment and an educational success for students assigned to post-adjudication facilities by juvenile courts and that these students should not be designated as a "drop out" in PEIMS.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal.
§89.1801(f)
Comment. Dallas County Juvenile Justice Charter School commented that most schools award credits at the end of the semester. The commenter noted that the Dallas County Juvenile Justice Charter School uses three grading periods and the semester exam to determine the average that is used to award credits. The commenter stated that if students are not present for the entire grading period or if the school cannot get grades from the home school to account for the time, the school is not able to award credit. The commenter also explained that if students are released prior to the end of the semester, the Dallas County Juvenile Justice Charter School transfers records to the receiving school and then the receiving school gives final grades and awards credits at the end of the semester. Dallas County Juvenile Justice Charter School stated that it has students who leave in the middle of a semester. Dallas County Juvenile Justice Charter School also expressed concern that it cannot and should not award credits if the student is no longer at the school.
Agency Response. The agency disagrees in part in and agrees in part. The agency has determined that credits will be awarded by the campus where the student is enrolled at the time of course completion. Therefore, if the records from a locally-assigned district are unavailable or insufficient, the residential facility should take appropriate steps to assess the student and determine eligibility for credit. The residential facility is also responsible for forwarding records for a student who departs and, therefore, would not award credit for a student who is no longer at the facility.
§89.1801(g)
Comment. Smith County Juvenile Services and Galveston County Juvenile Justice Department expressed concern about the provisions in subsection (g) requiring juvenile justice alternative education programs to provide a seven-hour school day that consists of at least five and one-half hours of required secondary curriculum and to operate so that at least 180 days of instruction are provided to the students. The commenters stated that the length of the school year should coincide with the local school district calendar. The commenters also stated that a seven-hour school day presents logistical problems for pre-adjudication facilities such as disruption or conflict with daily scheduled activities (visitation, court, recreation, showers, counseling services, etc.) and potential increased personnel costs for the school districts.
Agency Response. The agency disagrees. The length and number of school days specified in new 19 TAC §89.1801(g) are in alignment with the TEC, §25.081 and §28.082, and are established in rule to ensure sufficient time to provide required educational services to students in residential facilities.
Comment. Galveston County Juvenile Justice Department commented that rules found in 37 TAC Chapter 343 place numerous requirements for the provision of services on pre- and post-adjudication facilities. The commenter cited the example of 37 TAC §343.52(e)(1)-(4), which requires each resident of a post-adjudication facility to receive rehabilitative services that include individual counseling, group counseling, substance abuse prevention education, and AIDS awareness. The commenter stated that there are numerous other standards stipulating services that all make demands on a limited amount of time each day over and above routines of daily living and rehabilitative programming. The commenter asserted that a mandatory seven-hour educational day will exceed the time available for delivery of education curriculum in light of the numerous TAC requirements placed upon post-adjudication programs. The commenter also stated that many of these programs operate with very few teachers and the currently proposed operational requirements would not afford teachers the opportunity for conference periods or other preparation time in programs that often demand time-intensive individualized content delivery.
Agency Response. The agency disagrees. The seven-hour school day specified in new 19 TAC §89.1801(g) is in alignment with the TEC, §25.082, and is established in rule to ensure sufficient time to provide the required educational services.
Comment. The director of alternative education programs at Dickinson Independent School District provided an overview of programs in Galveston County. The commenter also stated that some districts obtain waivers that shorten the school calendar and recommended that the calendar for pre- and post-adjudication programs match the calendar of the host district.
Agency Response. The agency disagrees. The length and the number of school days specified in new 19 TAC §89.1801(g) are in alignment with the TEC, §25.081 and §28.082, and are established in rule to ensure sufficient time to provide required educational services to students in residential facilities.
Other
Comment. Victoria Regional Juvenile Justice Center requested clarification pertaining to the use of the teacher of record.
Agency Response. The agency provides the following clarification. The comment addresses issues outside the scope of the current rule proposal.
Comment. Victoria Regional Juvenile Justice Center requested clarification pertaining to the requirement for certified principals.
Agency Response. The agency provides the following clarification. The comment addresses issues outside the scope of the current rule proposal.
Comment. Victoria Regional Juvenile Justice Center requested clarification pertaining to the method to enforce accountability.
Agency Response. The agency provides the following clarification. The comment addresses issues outside the scope of the current rule proposal.
The new rule is adopted under the TEC, §37.0062, which authorizes the commissioner of education to adopt rules necessary to establish instructional requirements for alternative education services in juvenile residential facilities.
The adopted new rule implements the TEC, §37.0062.
§89.1801.Instructional Requirements for Education Services Provided in a Juvenile Residential Facility.
(a) Definition. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Pre-adjudication secure detention facility--A secure facility administered by a governing board that includes construction and fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility and is used for the temporary placement of any juvenile or other individual who is accused of having committed an offense and is awaiting court action, an administrative hearing, or other transfer action.
(2) Post-adjudication secure correctional facility--A secure facility administered by a governing board or the Texas Youth Commission that includes construction and fixtures designed to physically restrict the movements and activities of the residents and is intended for the treatment and rehabilitation of youth who have been adjudicated. A post-adjudication secure correctional facility does not include any non-secure residential program operating under the authority of a juvenile board as defined by the Texas Family Code, §51.12(j).
(3) Resident--A juvenile or other individual who has been admitted into a pre-adjudication secure detention facility or a post-adjudication secure correctional facility.
(4) Residential facility--A facility as described by the Texas Education Code (TEC), §5.001(8).
(5) School district--The educational service provider in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility. For the purposes of this subchapter, the definition of school district includes open-enrollment charter school.
(b) Enrollment.
(1) The school district providing the education services in a pre-adjudication secure detention facility shall ensure that a student is enrolled in its school district or, by local agreement, in the student's locally-assigned school district on the first school day after the student's arrival at the facility unless it is confirmed that the student will return to a different district within ten school days. The school district that maintains a student's enrollment is responsible for ensuring that appropriate education services are provided to each of its students while in the facility.
(2) The school district providing the education services in a post-adjudication secure correctional facility shall ensure that a student is enrolled in its school district or, by local agreement, in the student's locally-assigned school district on the student's first school day in the facility as a court-committed juvenile.
(3) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall coordinate with the student's previous locally-assigned campus to ensure that appropriate academic records are received within ten school days of the student's enrollment.
(c) Class size. The school district shall ensure that the classroom ratio does not exceed one certified educator to 24 students per class period.
(d) Pre-assessment. The school district shall ensure that a pre-assessment is administered to students in a post-adjudication secure correctional facility. The pre-assessment shall:
(1) be administered within ten school days from the student's first day of enrollment; and
(2) at a minimum, evaluate the student's basic reading and mathematics skills in relation to their current grade level.
(e) Curriculum of the educational program.
(1) Each school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall, at a minimum, provide students with the subjects and courses necessary to complete the minimum high school program, as specified in §74.62 of this title (relating to Minimum High School Program).
(2) Each school district in a pre-adjudication secure detention facility shall ensure that a student is provided courses that afford an opportunity of continued progress toward the completion of the minimum high school program, as specified in §74.62 of this title.
(3) Each school district in the post-adjudication secure correctional facility shall, at a minimum, provide a student curriculum that enables the student the opportunity to complete the requirements of the minimum high school program, as specified in §74.62 of this title.
(4) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall ensure that the educational services of the students consist of curriculum that is aligned with the requirements described in the TEC, §28.002, and the Texas Essential Knowledge and Skills (TEKS).
(5) The school district in a post-adjudication secure correctional facility shall provide students, ages 15-18 and identified as appropriate candidates, the opportunity and resources to prepare for the five general educational development examinations.
(f) Award of credit. The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall grant credits for coursework completed to ensure that high school credit is awarded to students for the successful completion of required courses while enrolled in educational services at the facility.
(g) Length and number of school days required.
(1) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall, at a minimum, provide a seven-hour school day that consists of at least five and one-half hours of required secondary curriculum to students in the facility. For each school year, each school district must operate so that the facility provides for at least 180 days of instruction for students.
(2) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall ensure that students with disabilities are provided instructional days commensurate with those provided to students without disabilities in accordance with requirements contained in §89.1075(d) of this title (relating to General Program Requirements and Local District Procedures).
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 May 22, 2009.
TRD-200902016
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: June 11, 2009
Proposal publication date: January 9, 2009
For further information, please call: (512) 475-1497