PART 2. TEXAS EDUCATION AGENCY
SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING OPEN-ENROLLMENT CHARTER SCHOOLS
The Texas Education Agency (TEA) adopts amendments to §§100.1011, 100.1022, 100.1023, 100.1031, 100.1047, and 100.1155, concerning open-enrollment charter schools. The amendments are adopted without changes to the proposed text as published in the December 5, 2008, issue of the Texas Register (33 TexReg 9849) and will not be republished. The sections address general provisions as well as provisions relating to commissioner action and intervention, funding and financial operations, and governance. The adopted rule actions modify a definition, update statutory citations and Texas Administrative Code references, and remove a provision relating to a repealed rule.
In accordance with House Bill 6, 77th Texas Legislature, 2001, the commissioner exercised rulemaking authority to adopt 19 TAC Chapter 100, Charters, Subchapter AA, Commissioner's Rules Concerning Open-Enrollment Charter Schools, covering a wide range of issues related to open-enrollment charter schools. The rules in 19 TAC Chapter 100, Subchapter AA, are organized in divisions addressing related subject matter, as follows: Division 1, General Provisions; Division 2, Commissioner Action and Intervention; Division 3, Charter School Funding and Financial Operations; Division 4, Property of Open-Enrollment Charter Schools; Division 5, Charter School Governance; and Division 6, Charter School Operations. During the recent required review of rules in 19 TAC Chapter 100, Subchapter AA, staff identified the need to modify a definition, update statutory citations and Texas Administrative Code references, and remove reference to a repealed rule. The adopted amendments affect rules in Divisions 1, 2, 3, and 5, as follows.
Division 1. General Provisions.
The adopted amendment to 19 TAC §100.1011, Definitions, modifies the definition of "former charter holder" by including those charter schools that have been ordered closed by any applicable section of the Texas Education Code (TEC), Chapter 39, Public School System Accountability.
Division 2. Commissioner Action and Intervention.
The adopted amendment to 19 TAC §100.1022, Standards for Adverse Action on an Open-Enrollment Charter, updates all references to TEC, §7.027(a), with the correct statutory reference of TEC, §7.028, regarding compliance monitoring. In addition, subsection (c) was modified to reflect the correct title of 19 TAC Chapter 97, Subchapter DD, and subsection (g)(4)(C)(vi) was updated to reflect the correct title of 19 TAC §100.1027.
The adopted amendment to 19 TAC §100.1023, Intervention Based on Charter Violations, corrects the title of 19 TAC Chapter 97, Subchapter DD, in subsection (b).
The adopted amendment to 19 TAC §100.1031, Charter Renewal, updates the reference in subsection (c) to TEC, §12.112, with the correct statutory reference of TEC, §12.114(a), regarding the revision of a charter contract.
Division 3. Charter School Funding and Financial Operations.
The adopted amendment to 19 TAC §100.1047, Accounting for State Funds, revises subsection (d) to delete a provision relating to repealed 19 TAC §129.22, Court-Related Students, and reorganize the existing provision for reporting actual student attendance data to the TEA.
Division 5. Charter School Governance.
The adopted amendment to 19 TAC §100.1155, Procedures for Prohibiting a Management Contract, updates subsection (b) to reflect the correct title of 19 TAC Chapter 97, Subchapter DD, and subsection (b)(1)(B) to reflect the correct title of 19 TAC §100.1027.
The adopted amendments have no new procedural and reporting implications. Also, the adopted amendments have no new locally maintained paperwork requirements.
The TEA determined that the amendments will have no 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 began December 5, 2008, and ended January 5, 2009. In response to a request for a public hearing, the TEA held a public hearing on February 12, 2009, in Austin, Texas, to receive public comments on the proposed amendments. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendments to 19 TAC Chapter 100, Charters, Subchapter AA, Commissioner's Rules Concerning Open-Enrollment Charter Schools.
Comment. An attorney with Feldman, Rogers, Morris & Grover, L.L.P. stated that the agency is statutorily prohibited from sanctioning charter schools on the basis of Performance-Based Monitoring Analysis System (PBMAS) monitoring reports; that the enabling statute of TEC, §7.028, does not apply to charter schools operated by 501(c)(3) corporations; that the agency is prohibited in its own rules from applying closure or taking other actions based on PBMAS ratings; and that the enabling statute, TEC, §7.028, authorizes the agency to conduct only a monitoring and data-improvement program, not a performance-based ratings program.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. The current rule text was adopted on April 6, 2005. See 30 TexReg 1911. At the time it was adopted, the existing text cross-referenced then TEC, §7.027(a). As noted by West Publishing on page 18 of the current School Law Bulletin, TEC, §7.028, was renumbered from TEC, §7.027, by the 79th Texas Legislature in 2005. See H.B. No. 2018, 79th R.S., ch. 728, eff. Sept. 1, 2005. The proposed rule change simply updates the cross reference.
Comment. The chief executive officer (CEO) of Pegasus Charter School stated that the proposed changes would have a greater impact than to correct clerical errors. The commenter stated that the changes were an attempt by the agency to deny or revoke a charter based on performance-based monitoring (PBM) results, not on the academic performance of students. The commenter also stated that there is no opportunity to present mitigating circumstances in response to PBM findings. The commenter added that there needs to be a process so that the collection of data and the institution of an improvement plan operate in tandem so that schools that are making progress do not move to the next level of PBM intervention.
Agency Response. The agency disagrees in part, and cannot address the comment in part. In part, the comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The school director of Lindsley Park Community School stated that there were helpful consequences of PBMAS interventions but also some unintended and unhelpful consequences. The commenter stated that there is a small-number bias that can lead to a huge swing of great consequences based on one child. The commenter recommended rethinking the submission requirements for local education agencies with very small populations; holding districts accountable without such a tedious, time-consuming, and largely unhelpful submission process; and keeping the Continuous Improvement Plan.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of Southwest Schools stated that while the TEA must comply with No Child Left Behind requirements, the current monitoring system is oppressive and duplicative as it is under two different TEA divisions. The commenter asked why there are two separate monitoring systems and why there is no effort to reconcile the different adequate yearly progress monitoring systems. The commenter stated that the remedial interventions increase only due to data input errors. The commenter also mentioned that there is no formal appeals process, which amounts to sanctions and the inappropriate application of a one-size-fits-all formula to special schools and special programs that are otherwise accommodated under other state and federal accreditation and accountability systems.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. An individual stated that there are problems with specific PBMAS indicators. Indicator #9 addresses special education dropout rates. The individual stated that students at a number of charter schools have already dropped out of district schools before enrolling in charter schools, so the stigma of being labeled a dropout is gone. Once a dropout enrolls in a charter school, the dropout is removed as a dropout from the school district's leaver code submissions. The individual suggested that the solution to this problem may be that a student who has previously dropped out of a traditional school and then drops out of a charter school be returned to the dropout list of the previous school district. The individual stated that the manner in which charter schools are required to submit data for this indicator does not allow them to explain anything about the student and does not address any quality factors about the programs being provided to these students in an effort to keep them in school.
The individual stated that Indicator #10 addresses the diploma program, and the level should not affect the charter school. The individual stated that charter schools that graduate students from special education should be given extra credit.
The individual also stated that Indicator #12 addresses special education identification and suggested that, rather than using the snapshot date to capture the data, a more accurate process would be to look at the total number of general education students served from the first day of school in August to the last day of school and divide that into the total number of special education students served throughout the same period. The individual indicated that the information submitted through the Texas Education Agency Secure Environment (TEA SE) system asks questions about the number of special education initial referrals and evaluations for the past school year, while the PBMAS system asks for the number of students served in the special education program. The individual stated that PBMAS may indicate too high a percentage of students in special education, even if none of these students were referred, evaluated, and placed in special education by the school.
Finally, the individual stated that TEC, Chapter 12, very clearly states that one of the original purposes of creating charter schools was to also create a new form of accountability for public schools, and that this should be a system that is fair and equitable to charter schools and gives consideration to the population of students these schools serve. The individual asked that the agency review the various reporting requirements, methods of evaluation, and standards for charter schools.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of George I. Sanchez stated that PBMAS should focus on improvements, not sanctions, and that PBMAS is based on the standard accountability system, not the alternative accountability system. The commenter stated that immigrant children take, on average, three years to learn English. The commenter also mentioned that results of a monitoring visit were not shared until long after the visit. The commenter concluded by stating that interventions need to focus on helping the charter schools get better and helping more students graduate.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of Trinity Charter Schools stated that Trinity Charter Schools want to be held accountable. The commenter also mentioned that Trinity Charter Schools have Academically Acceptable ratings at all campuses and that they do not get to choose their students. The students are assigned by Child Protective Services, Immigration and Naturalization Service, and Juvenile Justice Services. These students only stay at the charter school, on average, for six months, which triggers interventions. The commenter stated that the two mandated interventions for Trinity Charter Schools are not effective and cost an inordinate amount of time and money. The commenter indicated that three students inside the facility for unaccompanied minors illegally in the United States ran away during the night from the facility and triggered a mandated technical assistance team made up of the superintendent, assistant superintendent, principal, English language arts teacher, two direct-care staff, two community members, and a business representative. The commenter stated that this team must meet several times during the year, and no matter how hard the team works, it will not make a difference given the type of program and the type of student in this school. The commenter also stated that PBMAS shows Trinity Charter Schools as over-identifying at-risk students and poverty levels when the schools exclusively serve at-risk students who are all children of poverty. The commenter stated that no one appears to want the type of students who attend Trinity Charter Schools and asked that PBMAS not make work more difficult than it already is.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of Bay Area Charter School stated that Bay Area Charter School caters to white, upper class students who have been unsuccessful in traditional schools. The commenter said that the dropout recovery program system does not take into account what Bay Area Charter School set out to do in 1998 and that PBMAS needs to acknowledge different charter school populations. The commenter also mentioned that students at Bay Area Charter School take longer to graduate and concluded by stating that the school is making a difference every day.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The principal of Bay Area Charter Elementary stated that children come to the school with different needs and that a one-size-fits-all monitoring system does not work.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of Phoenix Charter School stated that PBMAS costs money and time and that the interventions are answered with ineffective action plans. The commenter said time and money are spent on something that is not preventable and that this may affect the accreditation and existence of the school. The commenter also stated that charter schools attract students with problems and the focus needs to be on helping charter schools, not on action plans for problems that are not preventable.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The campus director of Temple Education Center stated that by virtue of being open-enrollment the school must allow enrollment to all students. The commenter said that Temple Education Center gets a large of number of students already identified as special education students and that very few students are identified at the school as special needs. The commenter asked that the special education indicator be studied to see if there is a way to prevent a school from being penalized for doing what it is supposed to do. The commenter stated that another problem charter schools face is the fact that students are often ordered by a court to get a GED, but those students are counted as dropouts. The commenter asked that charter schools stop being held accountable for these students.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The CEO of The Education Center and Temple Education Center stated that PBMAS requires much time on a continual basis and that report dates are hard to find and manage. The commenter stated that PBMAS has indicated that The Education Center and Temple Education Center have too many students taking the Texas Assessment of Knowledge and Skills (TAKS)-Alternate and not enough taking TAKS-Modified. The commenter stated that District Effectiveness and Compliance (DEC) visits may have been less confusing than PBMAS. The commenter further stated that the special education indicator is confusing because it states that a certain percentage of students receiving special education services must be assigned to take the TAKS (Accommodated). The commenter indicated that charter schools are instructed by special education staff at the TEA to do that which is best for the student, and then the schools are faced with accounting for the reason that they did so.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The principal of Austin Can! Academy Charter School stated that there was too much time being put into paperwork and not enough into children. The commenter also stated that PBM has not been shown to positively affect the academic performance of students.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of John H. Wood Charter School stated a concern about the standards affecting charter schools. The commenter said that all students at John H. Wood are in lockdown of some sort, 75 percent are minority, and 40 percent are special education. The commenter stated that charter schools serve higher numbers of at-risk, minority, and special education students and that this has to be taken into account; that charter schools are smaller and take longer to recover from sanctions; and that charter schools can improve. The commenter concluded by saying that there should not be higher standards for charter schools and that the unique circumstances of charter schools need to be taken into account.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The CEO and founder of Focus Learning Academy stated that the zip code in which Focus Learning Academy is located has one of the highest crime rates in its city. The commenter mentioned that 100 percent of the students are minority, 90 percent are economically disadvantaged, and 40 percent are special education. The commenter stated that Focus Learning Academy was designed for special needs students and commented that PBMAS has indicated that the school has a disproportionate number of African-American students. The commenter stated that this causes extra work and uses resources to complete reports that could be used to help children instead. The commenter concluded by saying that the only way for the school not to have issues under PBMAS would be to stop serving these students.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The director and founder of Erath Excels stated that the school's charter was written to help dropouts and that the mission is to do what is best for students. The commenter stated that PBMAS has indicated that Erath Excels has too many special education students, but it would be illegal not to enroll them. The commenter also stated that PBMAS could be a problem for the school's campus in a residential treatment center.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of Positive Solutions Charter School stated that small numbers trigger PBMAS and that going back to look at past numbers for charter schools does not work. The commenter stated that PBMAS has indicated that Positive Solutions Charter School has too many Hispanic special education students. The commenter mentioned that students have a choice to come to the school, but they also have a choice to return to the school district or go to another charter school. The commenter also stated a concern about the high mobility rate of students at the school.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The CEO of Shekinah Academy of Learning and Shekinah Radiance questioned the validity of PBMAS and what it actually addresses. The commenter said that she became involved with charter schools to help special needs students. The commenter concluded by stating that PBMAS needs to be reevaluated to determine whether it is valid for what it was designed to measure.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The director of the Shekinah Special Education Co-op stated a concern with Indicator #13, which involves over-representation of African-American students. The commenter stated that a lot of time is spent gathering information just for this indicator, and this time could be spent helping students instead.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The superintendent of Winfree Academy Charter School stated that PBMAS and PBM should not apply to charter schools. The commenter also mentioned that punishment should not be given to charter schools that reach out to highly at-risk children by accelerating graduation under a minimum graduation plan rather than allowing students to just drop out. The commenter added that PBM standards do not align with the accountability system. The commenter stated that students who drop out of regular schools will join a charter school, drop out, and have that count as a charter school dropout, reenroll in the same charter school, and drop out repeatedly, each time counting against the charter school as a dropout. The commenter stated that charter schools were designed to serve at-risk children and asked that the rules not be revised regarding PBMAS to penalize charter schools.
Agency Response. The agency cannot address the comment. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
Comment. The founder and director of Rise Academy stated that charter schools can be punished for serving the students targeted in their charter contract. The commenter added that PBMAS compliance consumes time and resources when the indicators have no bearing on the proper functioning of the charter school in terms of student achievement, financial integrity, or factors causing noncompliance that cannot be changed. The commenter also indicated that corrective actions such as stakeholder meetings and public forums do not address noncompliance such as data errors. The commenter concluded by stating that PBMAS is not meant to close or punish charter schools, but the proposed rule change would strengthen TEA's ability to do so.
Agency Response. The agency disagrees in part, and cannot address the comment in part. The comment addresses issues outside the scope of the current rule proposal. The proposed changes to 19 TAC §100.1022(d) and (f) simply update a statutory cross reference and do not alter the agency's authority to intervene with or impose sanctions upon a charter school. (See response to comment from Feldman, Rogers, Morris & Grover, L.L.P.)
DIVISION 1. GENERAL PROVISIONS
The amendment is adopted 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.
The adopted amendment implements the TEC, Chapter 12, Subchapter 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 June 2, 2009.
TRD-200902194
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: June 22, 2009
Proposal publication date: December 5, 2008
For further information, please call: (512) 475-1497
19 TAC §§100.1022, 100.1023, 100.1031
The amendments are adopted 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.
The adopted amendments implement the TEC, Chapter 12, Subchapter 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 June 2, 2009.
TRD-200902195
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: June 22, 2009
Proposal publication date: December 5, 2008
For further information, please call: (512) 475-1497
The amendment is adopted 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.
The adopted amendment implements the TEC, Chapter 12, Subchapter 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 June 2, 2009.
TRD-200902196
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: June 22, 2009
Proposal publication date: December 5, 2008
For further information, please call: (512) 475-1497
The amendment is adopted 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.
The adopted amendment implements the TEC, Chapter 12, Subchapter 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 June 2, 2009.
TRD-200902197
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: June 22, 2009
Proposal publication date: December 5, 2008
For further information, please call: (512) 475-1497