Part 1. TEXAS HIGHER EDUCATION COORDINATING BOARD
Chapter 1. AGENCY ADMINISTRATION
Subchapter A. GENERAL PROVISIONS
The Texas Higher Education Coordinating Board adopts new §1.18 concerning Agency Administration, with changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2955). Specifically, this new section will provide rules for the operation of the Education Research Centers created by Texas Education Code §1.005. The adopted text adds paragraph (4) under subsection (a) Definitions and paragraph (9) under subsection (d) Operations to the proposed June 1, 2007 text.
The following comments were received regarding the new section:
The following comments were received from The University of Texas at Dallas.
Comment: Regarding subsection (b)(1): The phrase "provide access" is vague in the context of access to the data over secure Virtual Private Network (VPN) connections (for authorized users only, of course). The important issue is that individual level student data must not leave the data center, either while stored on disk as datasets or when loaded into memory for analysis.
Response: TEA and Coordinating Board staff agree that student data should not be accessed at locations outside of the state because of FERPA concerns. However, we will submit a question to the Department of Education concerning VPN access to student level data and may request a change to the rule when the Department of Education provides a ruling.
Comment: Regarding subsection (b)(3): As stated, the commitment to covering costs at two public agencies beyond operation of the Center is open-ended and potentially onerous. A more specific description of the costs for which the ERCs are liable would be more reasonable.
Response: TEA and Coordinating Board staff agreed and changed the language accordingly.
Comment: Regarding subsection (d)(5)(B): The word "independent" implies someone not affiliated with the ERC. However, that could potentially expose confidential data to someone not authorized to view it. We suggest that the wording be clarified to stipulate that the review be conducted by ERC staff person, but someone other than the researcher.
Response: TEA and Coordinating Board staff agreed and clarifying language has been included.
Comment: Regarding subsection (d)(7) This is a stipulation presents an unbounded commitment of resources. The suggested changes below provides for an opportunity for ERC input regarding the expected level of effort for planning purposes.
Response: TEA and Coordinating Board staff disagreed and does not suggest any changes at this time.
Comment: Regarding subsection (f)(2): As in subsection (b)(1), the physical location of access is ambiguous over a VPN. The wording below specifies that the location of the data, not the researchers, is the relevant issue. We also add text to cover secure off-site back up in accordance with standard data management procedures.
Response: TEA and Coordinating Board staff agreed and language has been added to clarify that off-site back up is allowed. As mentioned above, the Department of Education will be asked about allowing out-of-state VPN access to data.
The following comments were received from the Texas Education Agency (TEA):
Comment: Regarding subsection (c)(2): In looking at the proposed rule and our discussions about who would be available to serve on the Joint Advisory Board, I think we would be well served to change the wording in §1.18(c)(2) to authorize the two commissioners to appoint "up to ten" additional members. That would allow the Board to operate with fewer than 12 members should we have difficulty filling the positions without getting into questions about whether a quorum of the members have been named.
Comment: TEA would like to add the rule definitions that of "Coordinating Board" as including "Commissioner of Higher Ed" that appears in the original contract and the ERC contracts. The reason is to be clear that the (higher ed) commissioner could initiate a sanction against a center under subsection (e)(2) and cut off access to data under subsection (f)(1) and (3) without having to wait for the next coordinating board meeting.
Comment: TEA commented that there may be instances in which research projects require data or data manipulation beyond the deliverables in the original contract. We would like to add as subsection (d)(9) the following: "Research projects that require access to data not included in the database maintained by the CB for research may be provided by TEA or the CB in those agencies' discretion. A research center may be charged the cost to acquire, process or manipulate such data."
Response: Coordinating Board staff agreed and language has been changed to match all three TEA comments.
The following comments were received from the Ray Marshall Center:
Comment: The rule is far more restrictive than the Family Educational Rights and Privacy Act (FERPA) provisions and their Federal regulations, especially in light of the fact that the Education Research Centers (ERCs) would likely be operating as "authorized representatives" of the state educational authorities conducting research designed to improve student outcomes at the initiation of these same authorities. In such instances, FERPA allows researchers to gain access to individual student-level records with identifying information, so long as no further redisclosures of such student information are allowed to occur.
Response: TEA and the Coordinating Board disagree with this assessment. However, the RFP, rule, and ERC contract will be forwarded to the Department of Education to request guidance in regard to some of the issues mentioned.
Comment: The Ray Marshall Center commented that the rule also appears to extend CB control over research conducted at an ERC, even research that is not supported by ERC funding. This is inappropriate, very probably illegal, and may well preclude securing the necessary approval from the legal staff of the host Institutions of Higher Education (IHE). If allowed, it creates a major disincentive for IHE researchers to participate as part of an ERC.
Response: The funding is designated as seed funding and as such not designed to fund all the research. Only research that includes confidential student data needs to be approved by the joint advisory board.
Comment: The Ray Marshall Center commented that the rule makes IHEs responsible for supporting both agency and advisory board expenses related to ERC operations, despite the fact that a large share of the funding appropriated by the legislature for first-year operations has already been retained at the state level and not passed down for ERC operations and research. This is troubling and also appears inconsistent with legislative intent. The CB's recent receipt of $2.5 million from the Houston Endowment to create and operate its own in-house education research center raises additional questions about the need for retaining such a large share of ERC-related funds at the state level rather than channeling them into independent, objective research by ERCs.
Response: The language for support has been limited as mentioned above. The CB is not retaining any of the $3 million dollars that was provided by the Legislature, so the center must have been misinformed. The CB's Houston Endowment funding was requested for specific purposes, not including funding of data for the ERCs.
Comment: The Ray Marshall Center commented that the rule appears to preclude the conduct of most longitudinal research that would rely on linking individual student records to other administrative data (e.g., Unemployment Insurance wage records) through the use of SSNs. There is much to be gained from such research.
Response: There is a provision in which data that an ERC would like to match can be sent to either the TEA or CB and the SSN desensitized so the matching can be done.
Comment: The Ray Marshall Center commented regarding §1.18(b)(1) - This provision appears to suggest a single location from which an ERC may offer access to data, although provision §1.18(f)(2) addressing security issues is explicit that ERCs may provide such access at multiple IHE locations as approved by TEA and CB. Since ERCs are typically entities with multiple partners, it is important to clarify that multiple locations of an ERC may offer data access.
Response: Access to collaborating partners are considered part of the ERC. They will be reviewed for security.
Comment: The Ray Marshall Center commented regarding §1.18(b)(3) - This provision makes the ERCs responsible for centralized TEA, CB and advisory board expenses despite substantial cuts to the substate ERC allocations in the post-award period. This seems unreasonable, especially when the ERCs appear to have little control over the incurring of those expenses, convening of the meetings (see §1.18(c)(4)), travel arrangements, and other important variables. The CB would appear to be in a better position, administratively and fiscally, to handle these expenses in light of the Houston Endowment grant as well as the funds appropriated by the legislature for state-level ERC operations.
Response: Limiting language has been added to the rule. The Coordinating Board was not appropriated any funds by the Legislature in the just concluded session for state-level ERC operations. The Houston Endowment grant was for a specific purpose which did not include support of the ERCs.
Comment: The Ray Marshall Center commented regarding §1.18(c)(2) and §1.18(d)(3) - These provisions inappropriately subject "all research involving access to confidential information" to the approval by the advisory board and oversight by TEA and the CB through the advisory board. Non-ERC-funded research involving confidential data at a research entity that is part of an ERC should not have to be authorized, approved or overseen by the board. Most ERC partners are conducting such research now with funding from federal, state and local agencies as well as foundations. Non-ERC-funded research lies outside the purview of the ERC process. These provisions should be struck from the proposed rule.
Response: The funding is designated as seed funding and as such not designed to fund all the research. Only research that includes confidential student data needs to be approved by the joint advisory board.
Comment: The Ray Marshall Center commented regarding §1.18(d)(4) - Despite the preceding provision §1.18(d)(3) indicating that "confidential data" will be used in ERC research, this provision essentially eliminates access to any and all data elements that could be considered confidential. This provision also states that "under no circumstances may social security numbers, names, or birthdates be accessed for the purpose of research at an ERC." This would appear to preclude the conduct of research--e.g., the ongoing Central Texas High School Data Center at the Ray Marshall Center with Skillpoint Alliance--in which the researchers either have explicit student or parental consent to access and use such information or have a "study exception" granted by the participating Independent School Districts to do so. There are clearly some circumstances under which such information may be accessed under FERPA and currently approved IRB protocols at the IHEs. Unless this provision is revised accordingly, such research will likely be conducted outside of the ERCs with numerous requests going directly to TEA and CB for these data. Again, this arrangement appears inconsistent with legislative intent.
Response: There is a provision in which data that an ERC would like to match can be sent to either the TEA or CB and the SSN desensitized so the matching can be done.
Comment: The Ray Marshall Center commented regarding §1.18(d)(6) - This provision also pertains to "all research produced at an ERC"--even non-ERC-funded research--indicating that, among other things, it must be made available upon request to TEA and CB, be available for public distribution, copying or reproduction at no cost to TEA or CB, contain a disclaimer acceptable to TEA and CB, and be reviewed before publication or distribution by individuals other than those conducting the research, in accordance with guidelines adopted under FERPA or by TEA or CB. This provision places an undue burden for review/approval on any and all research conducted, particularly work that is not ERC-supported or ERC-related. This provision also should be struck.
Response: The funding is designated as seed funding and as such not designed to fund all the research. Only research that includes confidential student data needs to be approved by the joint advisory board.
The new sections are adopted under the Texas Education Code, §61.027, which gives the Coordinating Board the authority to adopt rules.
§1.18.Operation of Education Research Centers.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) FERPA means the Family Educational Rights and Privacy Act, 42 U.S.C. 1232g, including regulations and informal written guidance issued by the United States Department of Education and any amendments or supplementation thereof.
(2) Confidential information as applied to data provided to an Education Research Center (ERC) by Texas Education Agency (TEA) or the Texas Higher Education Coordinating Board (CB) includes all student-level data, including any data cells small enough to allow identification of an individual student. All social security numbers, student names, student birthdates and data cells containing between one and four students, inclusive, are confidential.
(3) Small data cells will be considered any cell containing between one and four students inclusive. Information may not be disclosed where small data cells can be determined through subtraction or other simple mathematical manipulations or subsequent cross-tabulation of the same data with other variables. Institutions may use any of the common methods for masking including:
(A) hiding the small cell and the next larger cell on the row and column so the size of the small cell can not be determined; or
(B) hiding the small cell and displaying the total for both the row and column as a range of at least ten; or
(C) any methodology approved by the TEA and CB.
(4) References to the CB shall also be deemed to include the Commissioner of Higher Education. References to the TEA shall also be deemed to include the Commissioner of Education.
(b) Purpose.
(1) ERCs may be established by joint approval of the commissioner of education and the CB. An ERC may only be established at a sponsoring public institution of higher education in Texas, but may be awarded to a consortium of such institutions. An ERC must be physically located within Texas and must retain all data at that location, except for secure off-site data back-up in accordance with written procedures approved by the Joint Advisory Board. Student level data may not be provided to a researcher at a location other than a Research Center or the THECB or a public institution of higher education located in Texas that is an acknowledged consortium member of the Research Center.
(2) The CB is responsible for general oversight, technical assistance and state support of ERCs, except as otherwise provided in this chapter. All policy decisions and rulemaking shall be jointly approved by TEA and the CB.
(3) Sponsoring institutions of higher education are responsible for all equipment, salaries and other operating costs of an ERC, including staff and equipment at TEA and the CB necessary to prepare and maintain data for the ERCs, as well as reasonable reimbursable expenses of the joint advisory board. Costs will be limited to one full-time equivalent employee at each agency along with associated data storage costs as set by DIR for the data center consolidation rates unless otherwise agreed to by the TEA, CB, and the ERCs.
(c) Joint Advisory Board.
(1) The commissioner of education and the commissioner of higher education shall co-chair an advisory board to review and approve research involving access to confidential information and to adopt policies governing ERC operations. Each commissioner may delegate to an agency employee the ability to act as co-chair and vote on matters coming before the Joint Advisory Board.
(2) The commissioner of education and the commissioner of higher education shall jointly appoint up to ten additional members to the Joint Advisory Board. All research involving access to confidential information must be approved by the said board.
(3) Members of the Joint Advisory Board serve at the pleasure of the commissioner of education and the commissioner of higher education and must be reappointed annually. The Joint Advisory Board will post its agenda and conduct its meetings in compliance with the Texas Open Meetings Act.
(4) The Joint Advisory Board shall meet at the call of the two chairs at least twice each year.
(d) Operation.
(1) An ERC may operate only under written authorization by the commissioner of education and the CB. Status as an ERC may not be assigned, delegated or transferred to any other entity.
(2) An ERC shall be lead by a managing director who is a professional employee of the sponsoring institution of higher education (IHE). The managing director shall report directly to the chief operating officer of the sponsoring IHE unless a different reporting structure is approved by TEA and the CB.
(3) All research at an ERC involving access to confidential information shall be conducted only with the approval of and under the joint oversight of TEA and the CB through the Joint Advisory Board. Research that does not involve access to confidential information may be conducted by the ERCs without approval of the Joint Advisory Board upon 30 days notice to TEA and the CB and certification by the ERC that sufficient resources will be available to meet all demands for resources to conduct research or manipulate data under the direction of the Joint Advisory Board or on behalf of TEA or the CB.
(4) Confidential information provided to an ERC by TEA or the CB shall be protected by procedures to ensure that any unique identifying number is not traceable to any individual. Such procedures must be maintained as confidential by TEA and the CB and may not be shared with an ERC, or used for any other purpose. Under no circumstances may social security numbers, names, or birthdates be accessed for the purpose of research at an ERC.
(5) ERCs shall adopt written procedures for research conducted using confidential information, subject to approval by the Joint Advisory Board. An ERC may not access confidential information until all such procedures are approved. Such procedures shall include:
(A) measures to ensure against unauthorized disclosure of confidential information;
(B) independent review of all research products by a designated ERC staff person not involved in that specific project to ensure against unauthorized disclosure of confidential information;
(C) review of all datasets created by a researcher to ensure that confidential information is not copied or removed from the ERC;
(D) annual certification of full compliance with all requirements of state and federal laws and regulations regarding the use of confidential information for research purposes by the internal auditor of each participating IHE;
(E) approval of research design by an accredited IHE, including any applicable requirements for research involving human subjects, before submitting a research proposal to the Joint Advisory Board for approval; and
(F) criteria for allocating research access capacity for researchers not affiliated with the sponsoring IHEs.
(6) All research produced at an ERC shall:
(A) be made available upon request to TEA and the CB;
(B) be available for public distribution, copying or reproduction at no cost to TEA or the CB;
(C) contain a disclaimer in a form acceptable to TEA and the CB stating that the conclusions of the research do not necessarily reflect the opinion or official position of those entities or of the State of Texas;
(D) be reviewed before publication or other distribution by individuals other than those conducting the research to ensure that confidential information is not disclosed, in accordance with guidelines adopted under FERPA or by TEA or the CB;
(7) An ERC shall comply with the requirements of the Texas Public Information Act, including requirements relating to data manipulation. An ERC shall process any Public Information Act requests referred by TEA or the CB in a timely manner. Charges for processing Public Information Act requests shall be based on guidelines developed by the Texas Attorney General's Office and approved by the Joint Advisory Board.
(8) A sponsoring IHE shall cooperate fully with all audit requests made by TEA or the CB. Each ERC shall annually request and undergo a security audit performed by the Texas Department of Information Resources, or a contractor approved by that Department, which shall include a penetration test of computer equipment and access.
(9) Research projects that require access to data not then included in the database maintained by the CB for research will be provided by the CB or the TEA if available. An ERC will be charged the cost to process or manipulate such data. ERCs will be assessed for annual maintenance costs of the CB and the TEA as approved by the Joint Advisory Board.
(e) Sanctions and Termination.
(1) Upon a determination that confidential information has been released or has been copied to another location, or that appropriate security measures are not in place to protect confidential information, the Joint Advisory Board may require an ERC to obtain appropriate services or equipment or to remove confidential information from such other location in order to remedy a security deficit. Such services or equipment shall be purchased by the ERC from vendors subject to approval of the Joint Advisory Board.
(2) An ERC may be terminated by joint action of TEA and the CB for failure to meet the requirements of state or federal law, of this subchapter, or of the terms of a contract establishing the ERC. Except as provided by subsection (c), an ERC shall be entitled to an informal review of a determination to terminate its status by a designee of the commissioner of education and the commissioner of higher education prior to the effective date of the termination.
(3) Notice of termination under subsection (a) and (b) of this section shall be provided to the ERC's designated representative and shall contain information regarding the reasons for the termination.
(4) A termination made pursuant to this section shall become final and binding unless, within 30 days of its receipt of the notice of termination, the ERC invokes the administrative remedies contained in Chapter 1, subchapter B of the Rules of the CB (relating to Hearings and Appeals).
(5) Any ultimate recommendation regarding termination shall be made to both the CB and the commissioner of education. The CB and the commissioner of education must concur for any termination of an ERC invoking such administrative remedies to become final.
(f) Security.
(1) An ERC must comply with all requirements of FERPA in accessing confidential information to conduct research. Notwithstanding any other provision in this subchapter, failure to maintain adequate security to avoid the unauthorized disclosure of confidential information provided to the ERC shall be grounds for immediate termination of the authorization to access such data.
(2) All physical locations at which confidential information may be accessed at an ERC must be located within Texas, at a sponsoring IHE, and approved by both TEA and the CB. Each ERC may provide for off-site data back up of information for disaster recovery purposes in accordance with DIR processes. No research can be performed at a back up site.
(3) Either TEA or the CB may suspend access to confidential information provided to an ERC based on a significant risk of unauthorized disclosure of confidential information.
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 July 26, 2007.
TRD-200703227
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 15, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
Subchapter D. DUAL CREDIT PARTNERSHIPS BETWEEN SECONDARY SCHOOLS AND TEXAS PUBLIC COLLEGES
The Texas Higher Education Coordinating Board adopts amendments to §4.85, concerning Dual Credit Requirements without changes to proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2957). Specifically, these amendments allow the use of the PLAN to determine readiness for dual credit enrollment in the junior year of high school.
There were no comments received regarding the amendments.
The amendment is adopted under the Texas Education Code, §§29.182, 29.184, 61.027, 61.076(J), 130.001(b)(3) - (4), 130.008, 130.090, and 135.06(d), which provides the Coordinating Board with the authority to regulate dual credit partnerships between public two-year associate degree-granting institution and public universities with secondary schools.
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 July 26, 2007.
TRD-200703228
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 15, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
Subchapter K. TECHNOLOGY WORKFORCE DEVELOPMENT GRANT PROGRAM
The Texas Higher Education Coordinating Board adopts an amendment to §13.193, concerning the periodicity and frequency of new request for proposals it issues for the Technology Workforce Development (TWD) Grant Program without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2957). Specifically, this amendment will allow the Coordinating Board to be flexible and issue requests for proposals when federal money becomes available for a new cycle of grants.
There were no comments received regarding this amendment.
The amendment is adopted under the Texas Education Code, §51.857 which gives the Coordinating Board the authority to administer a peer-review grants competition for the Technology Workforce Development Grant Program.
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 July 27, 2007.
TRD-200703296
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
Subchapter D. RULES APPLYING TO NEW CONSTRUCTION AND ADDITION PROJECTS
The Texas Higher Education Coordinating Board (THECB) adopts amendments to §17.30(2)(B), concerning Campus Planning, with changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2958).
Specifically, the amendment will apply current and applicable industry costs standards for facility projects. The adopted text adds "as published periodically by Coordinating Board" to the June 1, 2007 proposed text.
The following comments were received regarding the amendments:
Comment: A comment was received from The University of Texas at Austin regarding the change to cost based on industry standards. The comment was that in evaluating the proposed change, it would be helpful to have an understanding of the THECB definition of industry standard. Has a definition of this term been adopted?
Response: Board is planning on utilizing Engineering News Record (ENR), and the proposed wording change will still allow the ability to use RS Means. Current rules limit us to RS Means.
Comment: A comment was received from Texas A&M University-Kingsville (TAMU-Kingsville) regarding the change to cost based on industry standards. TAMU-Kingsville would be in favor of using a different "industry standard", if in fact it is a recognized "industry standard." RS Means is a recognized standard, and even if one doesn't care for the database, it is better than none at all. What is compiled at the system level is probably fine, but it lacks the number and size of numerous projects that a commercial database has. Texas Department of Transportation has their own statewide database for road construction, so if the institutions within Texas combined resources, that would give us a good database to use. The database would just have to be maintained and made available to all users. Otherwise, just saying "based on industry standard," could mean just about anything and the Coordinating Board would have to begin its own dictionary you call a standard for us to follow. That is probably not desirable or necessary.
Response: Board is planning on utilizing Engineering News Record (ENR) and the proposed wording change will still allow the ability to use RS Means. At some future date, a statewide database of the institutions within Texas might be a viable option.
The amendments are adopted under the Texas Education Code, §61.027 and §61.058.
§17.30.Standards for New Construction and/or Addition Projects.
To obtain Board approval for a new construction and/or addition project, an institution shall demonstrate that the project complies with the following standards:
(1) Institutional Standards. The institution shall demonstrate that a new construction and/or addition project complies with the following institutional standards:
(A) Deferred Maintenance.
(i) The Board standard for deferred maintenance shall be the ratio of campus deferred maintenance costs to replacement value of 5 percent or less.
(ii) If the ratio of campus deferred maintenance costs to replacement value is more than 5 percent, a project may be approved if the institution demonstrates that:
(I) the project is intended to reduce the deferred maintenance on the campus, or
(II) the institution has demonstrated a reduction in its deferred maintenance to replacement value ratio 10 percent or more for the immediate prior three years.
(iii) Alternatively, if the deferred maintenance to replacement value ratio is greater than 5 percent, a project may be approved if the institution:
(I) submits a written plan on a form specified by the Board for substantial progress toward meeting the standard; and
(II) provides the Board with a statement signed by the president of the institution, regarding its ability to support and maintain the proposed facility while continuing to address current institutional facility maintenance needs. The president of the institution may not delegate this authority.
(B) Critical Deferred Maintenance.
(i) The Board standard for critical deferred maintenance is zero.
(ii) If the critical deferred maintenance is greater than zero, a project may be approved if the institution:
(I) Develops an acceptable plan in place to address any critical deferred maintenance reported on the master plan; and
(II) the institution shall demonstrate progress towards meeting the plan goals; and
(III) the institution shall provide the Board with a statement signed by the president of the institution regarding its ability to support and maintain the proposed facility while continuing to address current institutional facility maintenance needs. The president of the institution may not delegate this authority.
(2) Project Standards. The institution shall demonstrate that a new construction or addition project complies with the following project standards:
(A) Space Need--The project shall not create a campus space surplus, or add to an existing surplus, as determined by the Board's space projection model report, required by §17.100 of this title (relating to Board Reports).
(i) If the institution has a predicted surplus of space in the current Space Projection Model report and the project is required to accommodate future predicted enrollment growth, the Board may consider a written plan from the institution, on a form specified by the Board, for substantial progress toward meeting the standard. The plan must include:
(I) an explanation of the expected growth and how the predicted growth will impact the institution;
(II) a demonstration of progress towards eliminating the surplus;
(III) a statement regarding the ability of the institution to support and maintain the proposed facility while continuing to address current institutional facility needs; and
(IV) a demonstration that, upon completion of the project, the institution will comply with the Board standard and eliminate the space surplus.
(V) The plan shall be signed by the president of the institution. The president of the institution may not delegate this authority within the requesting institution.
(ii) If more than one project is submitted for an agenda, all projects submitted for the current agenda will be considered in the determination of a campus surplus or deficit.
(B) Cost--The construction building cost per gross square foot shall be within the range of similar projects approved by the Board within the last five years, adjusted for inflation as described in the board's Construction Cost report (§17.100 of this title relating to Board Reports). If the construction cost per gross square foot exceeds the maximum cost of similarly approved projects, the cost per gross square foot shall not exceed the highest actual construction cost per gross square foot based on industry standards as published periodically by the Coordinating Board unless the institution can demonstrate that the higher cost is due to market conditions or other circumstances that warrant the higher cost.
(C) Efficiency--The ratio of NASF to GSF for the space in projects for classrooms and general purpose facilities shall be 0.60 or greater. Where the following specialized space is predominant in the project, the ratios of NASF to GSF shall be as follows:
(i) Office space: 0.65 or greater;
(ii) Clinical facility; 0.50 or greater;
(iii) Diagnostic support laboratories: 0.50 or greater; and
(iv) Technical research buildings: 0.50 or greater; and
(v) Parking structure:
(I) 400 Square Feet per parking space for automobile facilities;
(II) 500 Square Feet per parking space for boathouses; and
(III) 3,000 Square Feet per parking space for airplanes.
(IV) If the parking structure does not meet this standard, the project may be approved if the institution demonstrates that the lower efficiency is due to the shape of the available land or site or other conditions that warrant the lower efficiency.
(vi) For mixed-use facilities, the ratio of NASF to GSF shall be calculated for each space type and considered separately.
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 July 26, 2007.
TRD-200703229
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 15, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §17.101(3)(A), concerning Campus Planning, with changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2958).
Specifically, these amendments provide an annual uniform reporting date for the status of all approved facility projects until completion. The section is adopted with changes to correct grammatical errors that were in the proposed text.
The following comments were received regarding the amendments:
Comment: A comment was received from Texas Tech University System regarding the November 1 date selection for reporting the status of approved projects. It was requested that the date for the annual report on approved projects be the same as the MP1 report date which is July 1.
Response: Board does not recommend the July 1 date. The date for reporting the status of approved projects needs to correlate with the facilities inventory and space model reporting timeline.
Comment: A comment was received from Texas A&M University-Kingsville regarding the reporting timelines. The comment was why July 1, October 15, or any others; and how do these dates relate to state reporting requirements? If everyone has a solid understanding of not only what has to be reported, but how a missed deadline affects others down the line, people could be a bit more objective and rational. The "why's" are important.
Response: Board agrees that institutions need to know how certain reporting dates affect our ability to respond to request from the Legislature and statutory requirements. The date for reporting the status of approved projects needs to correlate with the facilities inventory and space model reporting timeline of November 1.
The amendments are adopted under the Texas Education Code, §§61.027, 61.058, and 61.0583.
§17.101.Institutional Reports.
Institutions of higher education shall submit current data to the Board for the following reports:
(1) Facilities Inventory.
(A) Periodic Review. Institutions shall report a record of all property, buildings, and rooms occupied or in the control of an institution in a format specified by the Board.
(i) The inventory of facilities shall be updated on an ongoing basis.
(ii) The inventory is subject to periodic audits.
(iii) The inventory shall be certified by the institution annually on or before November 1, or as specified by the Board.
(B) Use. The Board shall use the data reported in the facilities inventory to evaluate project applications, perform facilities audits, to determine compliance with Board Standards, and other required or requested analyses. The facilities inventory shall be used to complete the following reports as required by this section:
(i) the Space Projection Model;
(ii) calculation of replacement values; and
(iii) calculation of classroom and class lab utilization.
(2) Facilities Development Reports. The Board shall consider projects that are included in the facilities development plans (MP1 and MP2). A project that is not included in the plan may be considered if the Board determines that the institution, even with careful planning, could not reasonably have foreseen the project need.
(A) Facilities Development Plan (MP1). On or before July 1 of every year, beginning in 2004, an institution shall submit an update to its Facilities Development Plan (MP1) on file with the Board, as required by Texas Education Code, §61.0582. In every even-numbered year, the Board shall provide Facilities Development Plan data to the Bond Review Board for inclusion in the Capital Expenditure Report. This report may include capital renewal and deferred maintenance projects. The data may be used by the Board to respond to legislative requests, predictions of future space need, and similar analyses. The report shall include projects that are planned or may be submitted to the Board within the next five years, regardless of funding source:
(i) new construction projects $1,000,000 or more;
(ii) repair and rehabilitation projects $1,000,000 or more;
(iii) information resource projects that cumulatively would total $1,000,000 or more in one year;
(iv) property purchases that cumulatively would total $1,000,000 or more in one year. (The actual property address or location for individual property acquisitions may be, but are not required to be, identified in a single proposed project entitled "property acquisitions" with a total cost of all purchases or acquisitions projected over the reporting period.)
(v) the funding source for any planned project identified in clauses (i), (ii), (iii), and (iv) of this subparagraph; and
(vi) a description of the proposals the institution plans to submit to the Board during the reporting period.
(B) Campus Deferred Maintenance Plan (MP2). On or before October 15 of every year, an institution shall submit an update to its Campus Deferred Maintenance Plan (MP2) on file with the Board. This report does not include capital renewal projects. The report shall include:
(i) a list of an institution's facilities backlogged or deferred maintenance needs for the next five years that cost $10,000 or greater;
(ii) the amount the institution plans to designate each fiscal year for the next five years to address the backlogged or deferred maintenance reported in the Campus Deferred Maintenance Plan;
(iii) the amount of an institution's facilities critical backlogged or deferred maintenance needs for the next five years that cost $10,000 or greater;
(iv) a plan to address deferred maintenance if a project is delayed three years beyond its originally scheduled completion date; and
(v) an explanation for the delay in a project and a plan to address deferred maintenance if a project has remained on the institution's MP2 report for a third year.
(C) Campus Addressed Deferred Maintenance Report (MP4). On or before October 15 of every year, an institution shall submit an update to its Campus Addressed Deferred Maintenance Report (MP4) on file with the Board. The report shall include the amount of backlogged or deferred maintenance addressed in previous fiscal year.
(3) Project Status and Tracking Reports
(A) Annually, on or before November 1, institutions shall report the status of all approved projects to the Board. Reporting to the Board on an annual basis shall cease after the construction project is placed into service and included in the Facilities Inventory Report, or the property acquisition is completed, or the renovation shall be reported to be complete. The report shall include, but is not limited to:
(i) approved and actual project cost;
(ii) approved and actual building cost;
(iii) approved and actual GSF;
(iv) approved and actual NASF;
(v) approved and actual E&G NASF;
(vi) approved and actual source(s) of funding; and
(B) If the actual costs, square footage, or source(s) of funding changed beyond the thresholds defined in §17.14 of this title (relating to Re-approval of Projects), the institution shall submit a project application requesting re-approval of the project and include a justification for the delay in the request.
(4) Governing Board Approved Projects. Institutions shall report to the Board annually, on a form specified by the Board, all projects approved by the institution's governing board but not requiring Board approval that add E&G space to the institution's facilities inventory. The report shall be submitted electronically not later than December 1 of each year.
(5) Other Reports. Institutions are required to submit such other reports required by the Board.
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 July 26, 2007.
TRD-200703230
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 15, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
Subchapter C. HINSON-HAZLEWOOD COLLEGE STUDENT LOAN PROGRAM
The Texas Higher Education Coordinating Board adopts amendments to §21.55 concerning the Hinson-Hazlewood College Student Loan Program, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2959). Specifically, the proposed amendments would remove the requirement, for the College Access Loan (CAL) Program, that cosigner signatures be notarized and would clarify that cosigners must receive a favorable credit report evaluation to qualify as eligible cosigners.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §§52.31 - 52.40, which provides the Coordinating Board with the authority to establish procedures to administer the Hinson-Hazlewood College Student Loan Program and Texas Education Code, §52.31, which provides the Coordinating Board with the authority to adopt rules to effectuate the provisions of Texas Education Code, Chapter 52.
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 July 27, 2007.
TRD-200703262
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.402 and §21.404 concerning the Texas College Work-Study Program, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2960). All amendments would delete references to the Work-Study Mentorship Program. Rules for the mentorship program will be adopted in new sections of Board rules. Specifically, amendments to §21.402 remove definitions of "Junior," "Mentor," and "Senior"--terms relevant only to the mentorship program and not necessary for the general work-study program and include renumbering the remaining definitions. In addition, amendments to the definition of "Resident of Texas" reflect that Senate Bill 1528, 79th Texas Legislature, Regular Session, enacted Texas Education Code, §§54.0501 - 54.075, establishing new provisions to determine if a person is a Texas resident for tuition purposes at institutions of higher education. The new sections were applied beginning with enrollments for the Fall Semester 2006. Amendments to §21.404 remove language that defines the eligibility requirements for students employed through the mentorship program.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §56.077 which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 56, Subchapter E.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 27, 2007.
TRD-200703263
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts the repeal of §§21.405 - 21.411 concerning the Texas College Work-Study Program, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2960). Specifically, the repeal of §§21.405 - 21.411 would delete references to the Work-Study Mentorship Program from Board rules. Rules for the mentorship program will be adopted in new sections of Board rules.
No comments were received regarding the repeal.
The repeal is adopted under the Texas Education Code, §56.077 which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 56, Subchapter E.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 27, 2007.
TRD-200703265
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts new §§21.405 - 21.409 concerning the Texas College Work-Study Program, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2961). Specifically, the new sections are a result of deleting sections that reference the Work-Study Mentorship Program. Rules for the mentorship program will be adopted in new sections of Board rules. New §21.405 describes requirements of eligible employers and removes language that defines eligible employers for the mentorship program. New §21.406 describes award amounts and uses and removes language that describes the use of funds for the mentorship program. New §21.407 describes the procedure whereby work-study funds are to be allocated and disbursed to institutions. New §21.408 describes how information and rules about the program are to be disseminated. New §21.409 describes under what circumstances institutions may transfer funds among programs.
No comments were received regarding the new sections.
The new sections are adopted under the Texas Education Code, §56.077 which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 56, Subchapter E.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 27, 2007.
TRD-200703264
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.735(5)(B)(ii), concerning Waiver Programs for Certain Nonresident Persons, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2962). Specifically, the amendment will remove the stipulation that the higher education institution must have a surplus of space above the amount of predicted space calculated by the latest space projection model.
The following comments were received regarding the amendments:
Comment: A comment was received from The University of Texas of the Permian Basin supporting the rule change. UT Permian Basin believes that the proposed changes in the rules will offer opportunities to students who live near the Permian Basin while providing needed students to universities who enroll a small, but significant number of students from New Mexico.
Response: Board appreciates the institution's comment.
Comment: A comment was received from The University of Texas at Tyler supporting the rule change. UT Tyler believes this will restore its ability to recruit a limited number of high ability students from Louisiana to the Tyler area and keep them after graduation.
Response: Board appreciates the institution's comment.
Comment: A comment from The University of Texas-Pan American suggested that the waiver be good for five years as opposed to two years.
Response: Board does not agree to the five years because of changes in funding and legislative actions that occur every two years may impact the decisions of the institutions' Board of Regents and the Commissioner. The rules allow students who when admitted get this waiver to continue to receive it even if the waiver is stopped for new students admitted.
The amendments are adopted under the Texas Education Code, §54.00601, which provides the Coordinating Board with the authority to establish rules.
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 July 26, 2007.
TRD-200703231
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 15, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.953 and §21.956 concerning the Early High School Graduation Scholarship Program, with changes to the proposed text as published in the June 15, 2007, issue of the Texas Register (32 TexReg 3438). The amendments are based on House Bill 2383, which was passed by the 80th Texas Legislature and changed the eligibility for scholarships for students graduating on or after September 1, 2007, the effective date of the bill. Specifically, the amendment to §21.953(b) indicates the provisions of that paragraph only apply to students graduating between September 1, 2005, and August 31, 2007. The amendments to §21.953(c) indicate that although they must meet other program requirements, students who graduate on or after September 1, 2007: (1) do not have to be Texas residents at the time they use their awards but must be United States citizens or otherwise lawfully authorized to be present in the United States, (2) must complete the majority (not all) of their high school attendance in Texas, and (3) if they graduate in more than 41 months, they may receive scholarships if they graduate in less than 46 (not 45) months. The amendments to §21.956 clarify that the award amount that can be received by a student graduating in more than 41 but less than 46 months will equal $1,000 if the student meets other program eligibility requirements.
The following comments were received regarding the amendments:
Comment: Carol McDonald, President of Independent Colleges and Universities of Texas, Inc., commented that §21.953(c) describes the requirements students must meet to gain access to the program. Although the section does require that the student "have attended one or more high school in Texas," it does not require the student to graduate from a Texas high school. She thought that students who "attended one or more high schools in Texas" but actually graduated from a high school in another state might use this oversight to gain access to the benefits of this program.
Response: The Coordinating Board agreed and §21.953(c)(4) has been amended to include the requirement of graduating from high school in Texas.
The amendments are adopted under the Texas Education Code, §56.209, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 56, Subchapter K, relating to the Early High School Graduation Scholarship Program.
§21.953.Eligible Students.
(a) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school before September 1, 2005 must:
(1) be a resident of Texas; and
(2) have completed the requirements for a high school diploma in not more than thirty-six consecutive months having completed all years of high school in Texas.
(b) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school on or after September 1, 2005, but prior to September 1, 2007, must:
(1) be a resident of Texas;
(2) have attended high school exclusively in one or more public high schools in this state;
(3) have successfully completed the Recommended or Distinguished Achievement Program-Advanced High School Program established under Texas Education Code, §28.025, unless the principal or other authorized representative of the student's high school provides a written explanation along with the student's transcript and exemption program application that the courses in the Recommended or Advanced High School Program which the student did not complete were unavailable to the student at the appropriate time in his or her high school career because of:
(A) shortage of qualified teachers;
(B) lack of enrollment capacity; or
(C) another cause not within the person's control, an explanation for which is provided on the transcript by the official;
(4) have graduated:
(A) in not more than 41 consecutive months; or
(B) in not more than 45 consecutive months, if the student graduated with at least 30 hours of college credit.
(c) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school on or after September 1, 2007, must:
(1) be a citizen of the United States or otherwise lawfully authorized to be present in the United States;
(2) have attended one or more public high schools in Texas for the majority of time the person attended high school;
(3) have successfully completed the Recommended or Distinguished Achievement Program-Advanced High School Program established under Texas Education Code, §28.025, unless the principal or other authorized representative of the student's high school provides a written explanation along with the student's transcript and exemption program application that the courses in the Recommended or Advanced High School Program which the student did not complete were unavailable to the student at the appropriate time in his or her high school career because of:
(A) shortage of qualified teachers;
(B) lack of enrollment capacity; or
(C) another cause not within the person's control, an explanation for which is provided on the transcript by the official;
(4) have graduated from a public high school in Texas:
(A) in not more than 41 consecutive months; or
(B) in not more than 46 consecutive months, if the student graduated with at least 30 hours of college credit.
(d) A student's eligibility to receive a tuition credit under the Early High School Graduation Scholarship Program begins with the first regular semester or term following the student's graduation, exclusive of summer sessions that immediately follow the student's graduation. A student's eligibility to receive a tuition credit under the program ends six years after it begins, unless the student seeks and is granted an extension under §21.960 of this title (relating to Hardship Extensions).
§21.956.Award Amounts and Processing Cycle.
(a) Amounts for students graduating prior to September 1, 2005.
(1) The aggregate amount of state credit that shall be awarded to a student through this program may not exceed $1,000 to be applied only toward tuition.
(2) A student who is attending a private or independent institution may not receive a greater state tuition credit in any enrollment period than the amount of institutional aid that is provided by the institution and credited in the same manner, during that enrollment period.
(3) If a state credit awarded through the Early High School Graduation Scholarship Program is more than the amount of the student's first semester's tuition, the balance of the student's award may be used in subsequent semesters.
(4) State credits may not be used for continuing education classes that do not receive formula funding.
(b) For students who graduate on or after September 1, 2005:
(1) the aggregate amount of state credit that may be awarded to a student through this program is:
(A) $2,000 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and graduated from high school in 36 consecutive months or less and an additional $1,000 if the person graduated with at least 15 hours of college credit; or
(B) $500 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and graduated from high school in more than 36 consecutive months but not more than 41 consecutive months and an additional $1,000 if the person graduated with at least 30 hours of college credit; or
(C) $1,000 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and, either:
(i) graduated prior to September 1, 2007, from high school in more than 41 consecutive months but not more than 45 consecutive months with at least 30 hours of college credit, or
(ii) graduated on or after September 1, 2007, from high school in more than 41 consecutive months but not more than 46 consecutive months with at least 30 hours of college credit.
(2) A student who is attending a private or independent institution may not receive a greater state tuition credit in any enrollment period than the amount of institutional aid that is provided by the institution and credited in the same manner, during that enrollment period.
(3) State credits may not be used for continuing education classes that do not receive formula funding.
(c) Form of Award--Exemption or Reimbursement.
(1) If applications are processed and announced in time, institutions should exempt recipients from the payment of relevant charges and then request reimbursement from the Board.
(2) If applications are processed and/or announced too late for the student to be exempted from such payments at registration, the student may be required to pay these charges first, and then be reimbursed by the institution when reimbursement funds are received from the Board.
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 July 27, 2007.
TRD-200703266
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 15, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §21.1081 and §21.1083 concerning the Educational Aide Exemption Program, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2963). Specifically, the amendment to §21.1081(4) adds a definition for "educational aide" and clarifies that substitute teachers who have worked in the classroom with students for a minimum of 180 full days in a teaching capacity are included in the definition, allowing such persons to qualify for an exemption under this program. Subsequent definitions in §21.1081 are renumbered accordingly. The definition of "Resident of Texas" is amended to reflect that Senate Bill 1528, 79th Texas Legislature, Regular Session, enacted Texas Education Code, §§54.0501 - 54.075, establishing new provisions to determine if a person is a Texas resident for tuition purposes at institutions of higher education. The new sections were applied beginning with enrollments for the fall semester 2006. The amendment to §21.1083 incorporates the definition of "educational aide" into the requirements for being considered an eligible student.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §54.214(e), which authorizes the Coordinating Board to establish and administer scholarships for the educational aide exemption program.
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 July 27, 2007.
TRD-200703267
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
19 TAC §§21.2100 - 21.2103, 21.2108
The Texas Higher Education Coordinating Board adopts amendments to §§21.2100 - 21.2103 and 21.2108 concerning the Exemption Program for Veterans and Their Dependents (The Hazlewood Act), with changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2964). Due to the passage of House Bill 125 by the 80th Texas Legislature, amendments to these rules have been revised from what was proposed. Section 21.2100(4) has been revised. Specifically, the amendment to §21.2100(4) reflects the new eligibility of children of veterans or National Guardsmen who are totally disabled due to service-related injuries. Section 21.2100(5), which was proposed for deletion, is reinstated as revised. The amendment to §21.2100(5) reflects an interpretation of "citizen of Texas" by the Texas Attorney General in Opinion AG-347 issued on August 18, 2005, and defers details of the meaning of "resident of Texas" to the definition given in §21.2100(17). Paragraphs (6) - (20) under §21.2100 do not need to be re-numbered as proposed. New §21.2100(18) is deleted. Amendments to §21.2100(17) reflect updated citations for Coordinating Board rules on determining residency. Amendments to §21.2101 delete subsection (g), regarding flight training at community colleges, because this section no longer appears in the Hazlewood Act statute. Subsections 21.2101(h) and (i) are re-lettered as (g) and (h). Amendments to §21.2102(1) reflect the residency requirements for veterans at the time they enter the service as interpreted by the Texas Attorney General in Opinion AG-347, issued on August 18, 2005. Amendments to §21.2102(3) now have the paragraph rely on the definition of "honorably discharged" as provided in §21.2000(12). Amendments to §21.2102(5) clarify that persons cannot receive Hazlewood exemptions if they are in default on a federal loan but only if that default causes the student to lose access to his or her federal veterans' benefits. Amendments to §21.2103(1)(A) reflect changes to the Hazlewood Act arising from the passage of House Bill 125 by the 80th Texas Legislature. In particular, H.B.125 opens the program to the children of veterans who become totally disabled for purposes of employability. In the past, the only children who could participate were children of deceased veterans. Amendments to §21.2103(1)(B) reflect changes to the exemption from the passage of H.B.125, which opens the program to the children of certain Texas National Guard or Texas Air National Guard members who are totally disabled. In the past, only children of deceased members of the Guard could participate. Amendments to §21.2108 specify that institutions are to submit student-specific data for Hazlewood exemption recipients via the CBM001 report, the state's enrollment report.
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §54.203(i), which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §54.203.
§21.2100.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) Attempted credit hours--Hours for which the veteran is registered as of the census date of a term or semester.
(2) Board--The Texas Higher Education Coordinating Board.
(3) Census date--the date in an academic term or semester for which an institution is required to certify a person's enrollment in the institution to the board for the purposes of determining formula funding for the institution.
(4) Children--Persons who were dependents of members of the armed forces of the United States at the time they were killed or died or became totally disabled for purposes of employability as a result of injuries directly associated with military service or dependents of members of the Texas National Guard and the Texas Air National Guard killed since January 1, 1946, or who became totally disabled for purposes of employability as a result of a service-related injury suffered since January 1, 1946 while on active duty either in the service of Texas or the United States.
(5) Citizen of Texas--A person who is a United State Citizen and a resident of Texas.
(6) Commissioner--The Commissioner of Higher Education.
(7) Contact hours--A unit of measure that represents an hour of scheduled instruction given to students of which 50 minutes must be of direct instruction. Also referred to as clock hours.
(8) Dependent--An individual who was claimed as a dependent for federal income tax purposes by the individual's parent or court-appointed legal guardian in a particular year and in the previous tax year. A veteran was a dependent if he or she was claimed as such by a parent or legal guardian during the veteran's year of entry into the service and in the previous tax year. A child was a dependent if he or she was claimed as a dependent for tax purposes at the time his or her parent or legal guardian died of injuries or illness directly related to military service.
(9) Extraordinary costs--(for community/junior colleges only) tuition and fee costs that exceed the average tuition and fee charges at the institution.
(10) Federal survivor benefits--Benefits offered the surviving children of deceased veterans through Title 38, United States Code, Chapter 35.
(11) Hazlewood Act Exemption--The tuition and partial fee exemption authorized under Texas Education Code, §54.203.
(12) Honorably discharged--Released from active duty military service with an Honorable Discharge, General Discharge under Honorable Conditions, or Honorable Separation or Release from Active Duty, as documented by the Certificate of Release or Discharge from Active Duty (DD214) issued by the Department of Defense.
(13) Identification number--An individual's social security number.
(14) Institution--A Texas public institution of higher education as defined in Texas Education Code, §61.003(8).
(15) Property deposit fees--Fees that an institution may, under Texas Education Code, §54.502, elect to charge to insure that institution against losses, damages, and breakage in libraries and laboratories.
(16) Registration, date of--The census date of the term for which the student is applying for the Hazlewood Act Exemption.
(17) Resident of Texas--A resident of the State of Texas as determined in accordance with Chapter 21, §§21.727 - 21.736, of this title (relating to Determination of Resident Status and Waiver Programs for Certain Nonresident Persons).
(18) Student service fees--Fees that an institution may, under Texas Education Code, §§54.503, 54.5061 and 54.513, elect to charge to students to cover the cost of student services.
(19) Training--Time spent as a member of the armed forces that is not included in the "Net Active Service" or the sum of "Net Active Service" indicated on the Certificate of Release or Discharge from Active Duty (DD214).
(20) Tuition--All types of tuition that an institution may, under Texas Education Code, Chapter 54, collect from students attending the institution, including statutory tuition, discretionary tuition, designated tuition, and board-authorized tuition.
§21.2101.Hazlewood Act Exemption.
(a) Subject to the following provisions, an institution shall exempt an eligible veterans or child from the payment of tuition and fees, other than property deposit and student service fees. The exemption shall not apply to the payment of fees for services or items that are not required for enrollment in general or for the specific courses taken by the student.
(b) If the eligible veteran or child is entitled to federal veterans' education benefits during the term or semester for which he or she applies for the Hazlewood Act Exemption, an institution shall first apply the federal veterans' education benefits to the payment of the applicable tuition and fees. If the sum of the semester's federal benefits is less than the amount of applicable tuition and fees, the value of the exemption may not exceed the portion of tuition and fees that is not covered by federal benefits.
(c) An eligible veteran or child is not entitled to the Hazlewood Act Exemption for more than 150 attempted credit hours.
(d) An eligible veteran or child is entitled to the Hazlewood Act Exemption for an unlimited number of contact hours.
(e) If the Hazlewood Act Exemption is used for only a portion of the hours taken during a given term or semester, an institution shall deduct the number of hours taken in the semester or term from the 150 hours of eligibility in a manner that is proportionate to the share of the applicable tuition and fees that were subject to the exemption.
(f) Except for correspondence courses, an institution is not permitted to provide the Hazlewood Act Exemption for tuition and fees related to continuing education courses for which the institution does not receive state formula funding, unless the governing board of the institution specifically chooses to provide the exemption for such courses.
(g) Beginning with admissions for spring 2006, the governing board of a junior college district may establish a fee for extraordinary costs associated with a specific course or program.
(h) In determining whether to admit a person to any certificate program or any baccalaureate, graduate, postgraduate, or professional degree program, an institution may not consider the fact that the person is eligible for an exemption through this chapter.
§21.2102.Eligible Veterans.
In order to be eligible to receive a Hazlewood Act Exemption, a veteran shall demonstrate that he or she:
(1) at the time he or she entered the service, was a citizen of the United States and a resident of Texas;
(2) has been classified as a resident by the institution for the term or semester for which the veteran applies for the Hazlewood Act Exemption;
(3) was honorably discharged from service;
(4) has exhausted his or her federal veteran's education benefits, including such benefits as those issued under Title 38, United States Code, Chapters 30, 32, and 35, and Title 10, United States Code, Chapters 1606 and 1607;
(5) is not in default on an education loan made or guaranteed by the State of Texas and is not in default on a federal loan if that default is the reason the student cannot use his or her federal veterans' benefits;
(6) has attempted fewer than 150 credit hours using the Hazlewood Act Exemption beginning with fall of 1995;
(7) has followed the application procedures and schedules required by these provisions; and
(8) belongs to one of the following groups of individuals:
(A) nurses and honorably discharged members of the armed forces of the United States who served during the Spanish-American War or during World War I;
(B) nurses, members of the Women's Army Auxiliary Corps, members of the Women's Auxiliary Volunteer Emergency Service, and honorably discharged members of the armed forces of the United States who served during World War II except those who were discharged from service because they were over the age of 38 or because of a personal request on the part of the person that he be discharged from service;
(C) honorably discharged men and women of the armed forces of the United States who served during the Korean War which began on June 27, 1950, and ended on July 27, 1953; and
(D) all persons who:
(i) were honorably discharged from the armed forces of the United States after serving on active military duty for at least 181 days, excluding training; and
(ii) who served a portion of their active duty during:
(I) the Cold War which began on June 27, 1950;
(II) the Vietnam era which began on December 21, 1961, and ended on May 7, 1975;
(III) the Grenada and Lebanon era which began on August 24, 1982, and ended on July 31, 1984;
(IV) the Panama era which began on December 20, 1989, and ended on January 21, 1990;
(V) the Persian Gulf War which began on August 2, 1990, and ended on March 3, 1991;
(VI) the National Emergency by Reason of Certain Terrorist Attacks, which began on September 11, 2001; and
(VII) any future national emergency declared in accordance with federal law.
§21.2103.Eligible Children.
In order to be eligible to receive a Hazlewood Act Exemption, children shall demonstrate that they:
(1) are dependent children of:
(A) members of the U.S. Armed Forces who were citizens of the United States and residents of Texas when they entered the service and who
(i) died while in service, or
(ii) are missing in action, or
(iii) whose deaths are documented to be directly caused by illness or injury connected with service in the armed forces of the United States; or
(iv) became totally disabled for purposes of employability according to the disability ratings of the Department of Veterans Affairs as a result of a service-related injury; or
(B) members of the Texas National Guard or Texas Air National Guard who:
(i) were killed since January 1, 1946 while on active duty either in the service of Texas or the United States; or
(ii) are totally disabled for purposes of employability according to the disability ratings of the Department of Veterans Affairs, regardless of whether the members are eligible to receive disability benefits from the department, as a result of a service-related injury suffered since January 1, 1946, while on active duty either in the service of this state or the United States.
(2) have exhausted their federal survivor benefits based on the death of a veteran parent; and
(3) are classified by their institutions as residents of Texas for the term or semester for which they apply for the Hazlewood Act Exemption.
§21.2108.Reporting.
(a) All institutions shall report by means of the Texas Higher Education Coordinating Board's CBM 001 report, for each eligible veteran and child who is exempted from the payment of tuition and mandatory and discretionary fees, other than property deposit and student service fees, the following information to the Board:
(1) the person's name,
(2) the person's identification number (social security number),
(3) the person's date of birth, and
(4) the number of credit hours for which the person received an exemption in the given semester.
(b) All institutions shall submit the report required under this provision to the Board no later than December 31, for the fall term, no later than May 31, for the spring term, and no later than September 30, for the summer term or semester.
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 July 27, 2007.
TRD-200703268
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
Subchapter I. PROVISIONS FOR THE FIFTH-YEAR ACCOUNTING STUDENT SCHOLARSHIP PROGRAM
The Texas Higher Education Coordinating Board adopts amendments to §22.165 concerning the Provisions for the Fifth-Year Accounting Student Scholarship Program, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2967). Specifically, the amendments indicate that the maximum award amount will be set each year by the program's advisory committee and that the amount will be announced to the institutions when fund allocations are announced. This will enable the committee to adjust award maximum amounts as appropriate for the funds available for awarding. This is in keeping with the Texas Education Code, §61.757(c), which states: "In addition to any other duties assigned by the board, the advisory committee specifically shall advise the board on . . . the amount of money needed to adequately fund the scholarships and the maximum amount that may be awarded in any given year to an individual student."
No comments were received regarding the amendments.
The amendments are adopted under the Texas Education Code, §61.753 and §61.755, which authorizes the Coordinating Board to establish and administer scholarships for fifth-year accounting students.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 27, 2007.
TRD-200703272
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §22.229 and §22.234 of Board rules, concerning the Toward Excellence, Access and Success (TEXAS) Grant Program, with changes to the proposed text as published in the June 8, 2007, issue of the Texas Register (32 TexReg 3095). Proposed amendments to §§22.228(a)(6)(A), 22.228(a)(6)(C), 22.230(f), re-lettered §22.230(h), re-lettered §22.234(d) and (e); and new §22.230(g) and §22.234(c) are withdrawn from consideration for final adoption because Senate Bill 1699 was not passed by the 80th Texas Legislature. Specifically, the adopted amendments to §22.229(a) clarify that all initial award recipients are subject to the same academic progress requirements. There has been some confusion about whether an associate degree holder who enters the TEXAS Grant program as an initial award recipient should meet initial award academic progress requirements or continuation award requirements. Adopted changes to §22.229(b)(1) clarify that continuing award recipients who were awarded their initial TEXAS Grant prior to September 1, 2005, must complete 75 percent of their attempted hours and maintain an overall grade point average of 2.5 or more in order to receive awards in subsequent years. Adopted changes to §22.229(b)(2) indicate that continuing award recipients who were awarded their initial TEXAS Grant on or after September 1, 2005, must complete 75 percent of their attempted hours, complete at least 24 hours per year, and maintain an overall grade point average of 2.5 or more in order to receive awards in subsequent years. Section 22.229(d) is re-lettered as §22.229(c) since §22.229(c) is amended to become §22.229(b)(2). Adopted amendments to §22.234(b)(3) are made to eliminate language that was relevant in FY 2006 as the program transitioned to current statutes that indicate awards going to students attending private or independent institutions cannot exceed the maximum award authorized through the Tuition Equalization Grant Program. In FY 2006, this provision was only applied to students awarded grants on or after June 18, 2005. The provision now applies to all private or independent school recipients of TEXAS Grants.
The following comment was received regarding the adopted amendments:
Comment: Carol McDonald, President of Independent Colleges and Universities of Texas, Inc., suggested that §22.229(b)(2) be amended to have the same wording as used in §22.229(b)(1) in order to avoid confusion.
Response: The Board agreed with the comment and §22.229(b)(2) has been amended to have the same structure as §22.229(b)(1).
The amendments are adopted under the Texas Education Code, §56.303, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §§56.301 - 56.311.
§22.229.Satisfactory Academic Progress.
(a) As of the end of the first academic year in which a person receives an initial award, each recipient of the TEXAS Grant shall meet the academic progress requirements as indicated by the financial aid office of his or her institution.
(1) A recipient who does not meet the academic progress requirements of his or her institution may not receive an award until the institution has determined that the academic performance requirements have been met.
(2) A recipient who is below program grade point average requirements as of the end of a spring term may appeal his/her grade point average calculation if he/she has taken courses previously at one or more different institutions. In the case of such an appeal, the current institution (if presented with official transcripts from the previous institutions), shall calculate an overall grade point average counting all classes and grade points previously earned. If the resulting grade point average exceeds the current institution's academic progress requirement, an otherwise eligible student may receive an award in the following fall term.
(b) At the end of the year in which a person receives a continuation award:
(1) a recipient who was awarded an initial year TEXAS grant prior to September 1, 2005, shall:
(A) complete at least 75 percent of the hours attempted in his or her most recent academic year, as determined by institutional policies; and
(B) maintain an overall grade point average of at least 2.5 on a four point scale or its equivalent, for all coursework attempted at public or private or independent institutions of higher education.
(2) A recipient who was awarded an initial year award through the TEXAS Grant Program on or after September 1, 2005 shall:
(A) complete at least 75 percent of the hours attempted in his or her most recent academic year, as determined by institutional policies;
(B) complete at least 24 semester credit hours in his or her most recent academic year; and,
(C) maintain an overall grade point average of at least 2.5 on a four point scale or its equivalent, for all coursework attempted at an institution or private or independent institution.
(c) A grant recipient who is below program grade point average requirements as of the end of a spring term may appeal his/her grade point average calculation if he/she has taken courses previously at one or more different institutions. In the case of such an appeal, the current institution (if presented with transcripts from the previous institutions), shall calculate an overall grade point average counting all classes and grade points previously earned. If the resulting grade point average exceeds the program's academic progress requirement, an otherwise eligible student may receive an award in the following fall term.
§22.234.Award Amounts and Adjustments.
(a) Funding. Funds awarded through this program may not exceed the amount of appropriations, gifts, grants and other funds that are available for this use.
(b) Award Amounts.
(1) The amount of a TEXAS Grant awarded through an institution may not be reduced by any gift aid for which the person receiving the grant is eligible, unless the total amount of a person's grant plus any aid other than loans received equals or exceeds the student's tuition and required fees. The amount of a TEXAS Grant awarded to a student attending a private or independent institution may not be reduced by any gift aid for which the person receiving the grant is eligible, unless the total amount of a person's grant plus any gift aid exceeds the student's financial need.
(2) The Board shall determine and announce the maximum amount of a TEXAS Grant award prior to the start of each fiscal year. The calculation of the maximum amount will be based on the mandates contained in Texas Education Code, §56.307. However, no student's award shall be greater than the amount of the student's financial need.
(3) For students enrolled in eligible private or independent institutions,
(A) The amount of the TEXAS Grant may not exceed the maximum award possible through the Tuition Equalization Grant Program (Texas Education Code, §61.221).
(B) No student may receive both a TEXAS Grant and a Tuition Equalization Grant in the same term or semester.
(4) An eligible institution may not charge a person receiving a TEXAS Grant through that institution, an amount of tuition and required fees in excess of the amount of the TEXAS Grant received by the person unless it also provides the student sufficient aid other than loans to meet his or her full tuition and required fees. Nor may it deny admission to or enrollment in the institution based on a person's eligibility to receive or actual receipt of a TEXAS Grant.
(5) The eligible institution may require a student to forgo or repay the amount of an initial TEXAS Grant awarded to the student as described in §22.228(a)(6)(B) of this title (relating to Eligible Students) if the student is determined to have failed to complete the Recommended or Advanced High School Program or its equivalent as evidenced by the final high school transcript.
(6) If the money available for TEXAS Grants is sufficient to provide grants to all eligible applicants in the amounts specified in paragraphs (1) - (4) of this subsection, the Board may use any excess money to award a grant in an amount not more than three times the amount that may be awarded under paragraphs (1) - (4) of this subsection, to a student who:
(A) is enrolled in a program that fulfills the educational requirements for licensure or certification by the state in a health care profession that the Board, in consultation with the Texas Workforce Commission and the Statewide Health Coordinating Council, has identified as having a critical shortage in the number of license holders needed in this state;
(B) has completed at least one-half of the work toward a degree or certificate that fulfills the educational requirement for licensure or certification; and
(C) meets all the requirements to receive a grant award under §22.228 of this title.
(7) An award to an otherwise eligible student enrolled for less than a three quarter-time load is to be prorated. The amount he/she can be awarded is equal to the semester's maximum award for the relevant type of institution, divided by twelve hours and multiplied by the actual number of hours for which the student enrolled.
(c) Uses. A person receiving a TEXAS Grant may only use the money to pay any usual and customary cost of attendance at an institution of higher education incurred by the student.
(d) Over Awards. If, at a time after an award has been offered by the institution and accepted by the student, the student receives assistance that was not taken into account in the student's estimate of financial need, so that the resulting sum of assistance exceeds the student's financial need, the institution is not required to adjust the award under this program unless the sum of the excess resources is greater than $300.
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 July 27, 2007.
TRD-200703273
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 8, 2007
For further information, please call: (512) 427-6114
The Texas Higher Education Coordinating Board adopts amendments to §22.305 and §22.306 concerning the Exemption Program for Clinical Preceptors and their Children, without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2968). Specifically, the adopted amendments to §22.305 clarify that, in a given term, the preceptor, in order to receive an exemption, must serve at a minimum an average of one day per week for the time period the program conducts clinicals. In addition, the adopted amendments reflect changes to the authorizing legislation as a result of the passage of Senate Bill 201 by the 80th Texas Legislature, which extended the preceptor's eligibility to use an exemption to any term that begins within one year of the end of the term in which the person served as a preceptor. Previously, the program required the employment and use of the exemption to be simultaneous. The adopted amendments to §22.306 simplify the description of the enabling parent by referencing §22.305 (relating to Eligible Preceptors), in which the parent's requirements are outlined. In addition, in keeping with Senate Bill 201, the section now clarifies that a child and the preceptor parent may both receive exemptions based on the same semester or term of service.
No comments were received regarding the adopted amendments.
The amendments are adopted under the Texas Education Code, §54.222(g), which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, §54.222.
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 July 27, 2007.
TRD-200703274
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: August 16, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 427-6114
Chapter 97. PLANNING AND ACCOUNTABILITY
Subchapter CC. COMMISSIONER'S RULES CONCERNING THE ANNUAL EVALUATION OF DISCIPLINARY ALTERNATIVE EDUCATION PROGRAMS
The Texas Education Agency (TEA) adopts the repeal of §97.1021, concerning disciplinary alternative education programs. The repeal is adopted without changes to the proposed text as published in the June 1, 2007, issue of the Texas Register (32 TexReg 2970) and will not be republished. The adopted repeal removes from rule specifications relating to evaluation of the performance of disciplinary alternative education programs. This repeal is adopted in order to comply with legislative changes relating to limitation on compliance monitoring in accordance with House Bill (HB) 3459, 78th Texas Legislature, 2003.
Effective February 14, 2001, the commissioner of education adopted 19 TAC §97.1021, exercising rulemaking authority over developing a process for evaluating a school district disciplinary alternative education program in accordance with Texas Education Code, §37.008(m). The rule addresses the definition of the program and describes an annual evaluation by the TEA of each district's program, including performance data and specific indicators to be evaluated.
In 2003, the 78th Texas Legislature enacted HB 3459, adding TEC, §7.027 (renumbered to §7.028 in subsequent legislative session), which limits compliance monitoring by the state. TEC, §7.028, gives the board of trustees of a school district or the governing body of an open-enrollment charter school the primary responsibility for ensuring that the district or school complies with all applicable requirements of state educational programs. As a consequence of TEC, §7.028, activities relating to provisions under TEC, §37.008(m), including rulemaking requirements, were suspended.
In addition to TEC, §7.028, TEC, §37.008(m-1), was added and directs the commissioner to identify districts that indicate high risk of data and compliance violations. As a result of these two legislative requirements, the TEA developed a new agency-wide Performance-Based Monitoring (PBM) system. This new monitoring system replaced the former process outlined in the rule being repealed and includes a data validation component.
The adopted repeal of 19 TAC Chapter 97, Subchapter CC, §97.1021, implements these legislative changes.
The public comment period on the proposal began June 1, 2007, and ended July 1, 2007. No public comments were received.
The repeal is adopted under the Texas Education Code (TEC), §7.028, which establishes a limitation on compliance monitoring (including suspension of rulemaking requirements under TEC, §37.008(m)) and TEC, §37.008(m-1), which directs the commissioner to identify districts that indicate a high risk of data and compliance violations. As a result of TEC, §7.028 and §37.008(m-1), the TEA developed a new agency-wide Performance-Based Monitoring system that includes a data validation component.
The repeal implements the TEC, §7.028 and §37.008(m-1).
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 26, 2007.
TRD-200703247
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: August 15, 2007
Proposal publication date: June 1, 2007
For further information, please call: (512) 475-1497