PART 2. TEXAS EDUCATION AGENCY
SUBCHAPTER AA. COMMISSIONER'S RULES ON SCHOOL FINANCE
The Texas Education Agency (TEA) adopts an amendment to §61.1018, concerning payment of supplemental compensation. The amendment is adopted without changes to the proposed text as published in the December 5, 2008, issue of the Texas Register (33 TexReg 9846). Section 61.1018 addresses the administration of payments for supplemental compensation to eligible entities. The adopted amendment aligns the rule with statutory changes authorized by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006. The adopted amendment redefines the payment described in the rule, specifying it as a wage increase rather than a supplement, and modifies the method of providing state funding for that payment.
Before the 2005 legislative session, administration of supplemental compensation was the responsibility of the Teacher Retirement System of Texas (TRS). However, eligible entities reported their eligible employees to the TEA, and the TEA made the payments of supplemental compensation on behalf of the TRS. To provide more efficient administration of the program, Senate Bill 1863, 79th Texas Legislature, Regular Session, 2005, added the Texas Education Code (TEC), Chapter 22, School District Employees and Volunteers, Subchapter D, Compensation Supplementation, shifting the responsibility for supplemental compensation to the TEA. The TEA exercised rulemaking authority to adopt, effective January 31, 2006, 19 TAC §61.1018, Payment of Supplemental Compensation, which specifies definitions; establishes reporting requirements; delineates eligibility criteria; and sets forth the funding formula, distribution procedures, and settle-up process.
House Bill 1, 79th Texas Legislature, Third Called Session, 2006, amended the TEC, Chapter 22, Subchapter D, to convert the payment authorized by this chapter from supplemental compensation to a wage increase. The bill also requires that certain employees of eligible entities annually elect in writing whether to designate part of their compensation as health care supplementation.
The adopted amendment to 19 TAC §61.1018 implements these statutory changes. Specific changes to the rule include the following.
Throughout the rule, references to the payment provided for by the TEC, Chapter 22, Subchapter D, were changed to reflect the conversion of that payment from supplemental compensation to a wage increase.
The explanation of the purpose of the rule in subsection (a) was modified to reflect the conversion of the payment authorized by the TEC, Chapter 22, Subchapter D, from supplemental compensation to a wage increase.
In subsection (b), modifications were made to the definitions for entity, full-time employee, and part- time employee. New definitions were added for the terms minimum-salary-schedule employee and staff salary allotment, and the definition for professional staff was removed.
In subsection (c), outdated information about the reporting of staff information was deleted, and language in the subsection was rearranged to reflect the deletion.
In subsection (d), changes to eligibility were made to reflect the amended definitions in subsection (b). Also, based on statutory changes, the eligibility requirement that an individual must have been employed by an eligible entity for at least 91 days was removed and replaced with a requirement that an individual must have provided written election of whether to designate a portion of his or her compensation to be used as health care supplementation.
Subsection (e) was replaced with new language regarding the funding formula for the payment to reflect the conversion of the payment authorized by the TEC, Chapter 22, Subchapter D, from supplemental compensation to a wage increase.
Subsection (f), addressing outdated provisions for distribution of the payment, was deleted.
New subsection (f) was added to modify the settle-up process to reflect the conversion of the payment authorized by the TEC, Chapter 22, Subchapter D, from supplemental compensation to a wage increase. Deadlines for the settle-up process and TEA's adjustment of the allotment were specified.
Subsection (g), regarding outdated settle-up procedures, was deleted.
In addition, the section title was updated from "Payment of Supplemental Compensation" to "Payment of Health Care Supplementation" to correspond with the type of payment described in the rule.
At the beginning of a school year, the TEA estimates the payment due to an eligible entity under the TEC, Chapter 22, Subchapter D. All eligible entities are required to submit monthly, through the online Foundation School Program Payment System's Staff Salary Data module, the number of employees making up several different categories (e.g., full-time classroom teachers, part-time classroom teachers, and administrators). This information allows the TEA to compute, at the end of the school year, the payment under the TEC, Chapter 22, Subchapter D, that the eligible entity was actually entitled to receive so that the TEA can reconcile that amount against the amount that was paid based on estimated data.
The Staff Salary Data module replaces the Health Care Funding Application, which was closed at the conclusion of the 2005-2006 school year and deleted as a data collection in July 2008. The type of data currently collected through the Staff Salary Data module is similar to the type of data that was collected through the Health Care Funding Application.
Eligible entities may need to change existing forms or create new forms related to health care coverage to allow employees to indicate whether they are electing to designate a portion of their compensation to be used as health care supplementation.
The TEA determined that the amendment will have no adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period on the proposal began December 5, 2008, and ended January 5, 2009. No public comments were received.
The amendment is adopted under the TEC, §22.102, which authorizes the TEA to adopt rules to implement health care supplementation.
The amendment implements the TEC, Chapter 22, Subchapter D.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 13, 2009.
TRD-200900642
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: March 5, 2009
Proposal publication date: December 5, 2008
For further information, please call: (512) 475-1497
SUBCHAPTER AA. COMMISSIONER'S RULES
The Texas Education Agency (TEA) adopts new §76.1003, concerning safety training requirements. The new section is adopted without changes to the proposed text as published in the December 26, 2008, issue of the Texas Register (33 TexReg 10406) and will not be republished. The adopted new rule establishes in rule extracurricular athletic activity safety training requirements in accordance with the Texas Education Code (TEC), §33.202, as added by Senate Bill (SB) 82, 80th Texas Legislature, 2007.
Through SB 82, the 80th Texas Legislature added the TEC, §33.202, requiring the commissioner of education to develop and adopt an extracurricular activity safety training program. The program must include training in emergency action planning; cardiopulmonary resuscitation (CPR); communicating with 9-1-1 emergency service operators and other emergency personnel; and recognizing symptoms of potentially catastrophic injuries.
Adopted new 19 TAC Chapter 76, Extracurricular Activities, Subchapter AA, Commissioner's Rules, §76.1003, Extracurricular Athletic Activity Safety Training Requirements, requires that all coaches, trainers, marching band directors, sponsors, and certain physicians who assist with extracurricular athletic activities meet certain safety requirements or complete a safety training course beginning with the 2008-2009 school year. New subsection (a) adopts the Extracurricular Activity Safety Training Program provided by the University Interscholastic League as an extracurricular athletic activity safety training program. New subsection (b) adopts the educational requirements for licensure as a licensed athletic trainer for the same purpose. New subsection (d) establishes the educational requirements for physicians.
As required by the TEC, §33.206, school districts will maintain documentation that specified staff and volunteers meet the minimal safety training requirements.
The TEA determined that the new section will have no adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period on the proposal began December 26, 2008, and ended January 26, 2009. No public comments were received.
The new section is adopted under the TEC, §33.202, which authorizes the commissioner by rule to develop and adopt an extracurricular activity safety training program.
The adopted new section implements the TEC, §33.202.
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 February 18, 2009.
TRD-200900714
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: March 10, 2009
Proposal publication date: December 26, 2008
For further information, please call: (512) 475-1497
SUBCHAPTER AA. COMMISSIONER'S RULES
The Texas Education Agency (TEA) adopts an amendment to §129.1025, concerning student attendance accounting. The amendment is adopted without changes to the proposed text as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9177). The section adopts by reference the annual student attendance accounting handbook. The handbook provides student attendance accounting rules for school districts and charter schools. The proposed amendment adopts by reference the 2008-2009 Student Attendance Accounting Handbook Version 2.
Legal counsel with the TEA has recommended that the procedures contained in each annual student attendance accounting handbook be adopted as part of the Texas Administrative Code. This decision was made in 2000 as a result of a court decision challenging state agency decision making via administrative letters and publications. Given the statewide application of the attendance accounting rules and the existence of sufficient statutory authority for the commissioner of education to adopt by reference the student attendance accounting handbook, staff proceeded with formal adoption of rules in this area. The intention is to annually update the rule to refer to the most recently published student attendance accounting handbook.
Each annual student attendance accounting handbook provides school districts and charter schools with the Foundation School Program (FSP) eligibility requirements of all students, prescribes the minimum requirements of all student attendance accounting systems, lists the documentation requirements for attendance audit purposes, specifies the minimum standards for systems that are entirely functional without the use of paper, and details the responsibilities of all district personnel involved in student attendance accounting. The TEA distributes FSP resources under the procedures specified in each current student attendance accounting handbook. The final version of the student attendance accounting handbook is published on the TEA website each June or July. A supplement, if necessary, is also published on the TEA website.
The adopted amendment to 19 TAC §129.1025 adopts by reference the 2008-2009 Student Attendance Accounting Handbook Version 2. Policy decisions related to dual credit programs and state funding that were made after publication of the first version of the student attendance accounting handbook for the 2008-2009 school year necessitated publication of a second version. Data from previous school years will continue to be subject to the student attendance accounting handbook as the handbook existed in those years.
Significant changes to the 2008-2009 Student Attendance Accounting Handbook Version 2 from the 2007-2008 Student Attendance Accounting Handbook include revisions relating to the following sections.
Section 3
Information on new average daily attendance (ADA) eligibility codes 7 and 8 was added.
A clarification of how student attendance affects student funding eligibility was added.
Information was added explaining that student records must be requested, sent, and received using the Texas Student Records Electronic Exchange system.
Information was added explaining that the requirement that a student be counted absent if not present at the designated district attendance-taking time or if not with a responsible campus official at that time does not apply to students participating in certain alternative attendance programs, such as the Optional Flexible School Day Program.
A sentence was added stating explicitly that if a student is not actually on campus at the time attendance is taken because the student is enrolled in and attending an off-campus dual credit course, then the student may be considered in attendance for FSP purposes.
A clarification was made that the policy of allowing a student who had an excused absence to make up missed school work applies to all excused absences, not only absences to sound "Taps" at a military honors funeral held in Texas for a deceased veteran.
Information was added clarifying in which situations a student who participates in early graduation ceremonies is eligible to generate ADA.
A subsection was added explaining that the TEA does not provide state funding for summer school programs and that, in general, if a student is in membership for additional days beyond the 180 days that make up the state funding year, the excess attendance will not generate state funding.
Language was added to state explicitly that a school district has flexibility in setting the ending date of its school calendar.
Sections 3 and 4
The requirement that a homebound student must be expected to be confined at home or hospital bedside for four consecutive weeks was modified. The four weeks no longer need to be consecutive.
Sections 3 and 11
A clarification of the policies related to student participation in dual credit programs as that participation relates to state funding was added. For the 2008-2009 school year, school districts may count the time that students spend in dual credit courses for state funding purposes even if students are required to pay tuition, fees, or textbook costs for these courses.
Section 4
Information on "least restrictive environment" requirements was added.
Section 6
Information was added explaining that, if a student's parent has denied bilingual/English as a second language (ESL) services and the only summer school program available is a bilingual/ESL program, then the student is not eligible to generate funding by participating in the program.
Charts were added showing the criteria for transferring a limited English proficient (LEP) student out of the bilingual/ESL program and for transferring a LEP student who is receiving special education services out of the bilingual/ESL program.
Section 7
An explanation was added that any student who is automatically eligible for the National School Lunch Program (NSLP) is eligible for free prekindergarten and that any student who is eligible for and participating in Head Start is automatically eligible for the NSLP.
An explanation was added of the documentation required to show that a student is eligible for free prekindergarten based on the student's having ever been in the conservatorship of the Texas Department of Family and Protective Services (DFPS) (i.e., in foster care) following an adversary hearing. Also, a clarification was made that students who have been adopted or returned to their parents after having been in DFPS conservatorship are eligible for free prekindergarten.
Section 10
Information was added regarding the criteria under which a student may be placed in a juvenile justice alternative education program (JJAEP) and regarding students who have not been expelled but have been assigned to a JJAEP by a court. Also, a clarification was added that a JJAEP is not eligible to receive FSP funding and does not report student attendance to the TEA. The school district in which a student is enrolled immediately preceding the student's placement in a JJAEP is responsible for determining the student's ADA eligibility code.
A subsection was added on students from outside a district who are being served in detention or other facilities making short-term residential placements.
Section 11
A subsection was added on how to report dual credit attendance in the Public Education Information Management System (PEIMS) when a higher education institution's calendar is shorter than the school district calendar.
The subsections on the Optional Flexible School Day Program and the High School Equivalency Program were expanded. New subsections on the Optional Flexible Year Program, the Electronic Course Pilot, and the Texas Virtual School Network were added.
19 TAC §129.1025 places the specific procedures contained in the 2008-2009 Student Attendance Accounting Handbook Version 2 in the Texas Administrative Code. The TEA distributes FSP funds in accordance with the procedures specified in each annual student attendance accounting handbook. Data reporting requirements are addressed through the PEIMS.
The TEA determined that the amendment will have no adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period on the rule action began November 14, 2008, and ended December 15, 2008. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendment to 19 TAC Chapter 129, Student Attendance, Subchapter AA, Commissioner's Rules, §129.1025, Adoption By Reference: Student Attendance Accounting Handbook.
Comment. The associate superintendent of Southwest Preparatory School commented that the TEA did not provide timely notice of its policy of not providing funding for more than 180 days per funding year and that, consequently, the charter school spent money on staff and facilities for summer school that it otherwise would not have.
Agency Response. The agency disagrees that it did not provide timely notice of the policy of not providing funding for more than 180 days per funding year. It has been the TEA's policy since at least 1995 to limit funding to 180 days per funding year, as the agency is required to do in accordance with the Texas Education Code (TEC), §25.081 and §42.005(a)(1). Section 3.8.4 of the 2008-2009 Student Attendance Accounting Handbook Version 2, in addition to the August 19, 2008, To the Administrator Addressed letter regarding summer school and state funding, simply clarify and highlight the TEA's existing policy of limiting funding to 180 days per funding year.
Comment. The associate superintendent of Southwest Preparatory School commented that the TEA's policy of limiting funding to 180 days per funding year has been retroactively implemented before the rule amendment adopting the handbook has been through the adoption process.
Agency Response. The agency disagrees. The policy of limiting funding to 180 days per funding year was in effect before the amendment to the 2008-2009 Student Attendance Accounting Handbook Version 2 was proposed. It has been the TEA's policy since at least 1995 to limit funding to 180 days per funding year, as the agency is required to do in accordance with the TEC, §25.081 and §42.005(a)(1).
Comment. The associate superintendent of Southwest Preparatory School commented that the TEA's policy of limiting funding to 180 days per funding year will cause severe administrative and financial problems for the school.
Agency Response. The agency disagrees. The TEA's policy of limiting funding to 180 days per funding year has been in place since at least 1995 and is based on statutory requirement in the TEC, §25.081 and §42.005(a)(1).
Comment. The associate superintendent of Southwest Preparatory School requested that the amendment to 19 TAC §129.1025 either not be adopted or be adopted to be effective September 1, 2009, so that charter schools could transition more smoothly to compliance with the requirement limiting funding to 180 days per funding year.
Agency Response. The agency disagrees. Charter schools should not require any time to comply with the TEA's policy of limiting funding to 180 days per funding year, as the policy has been in place since at least 1995.
Comment. Southwest Preparatory Charter School; Winfree Academy Charter Schools; KIPP Houston; Erath Excels! Academy, Inc.; Texans Can!; Responsive Education Solutions; and Trinity Charter School commented that there is no statutory basis for limiting funding to a 180-day year that begins the fourth Monday in August.
Agency Response. The agency disagrees. Per the TEC, §42.005, a student may generate ADA funding for only 180 days of instruction.
Also, the 2008-2009 Student Attendance Accounting Handbook Version 2 does not require that an open-enrollment charter school's calendar begin on the fourth Monday in August. Section 3.8.4 of the handbook states only that the state funding calendar year begins the fourth Monday in August. An open-enrollment charter school is permitted to receive funding for any 180-day calendar that falls any time within the state funding calendar year. If an open-enrollment charter school calendar starts June 1, it is possible for the school to receive funding for the period June 1 through the day before the fourth Monday in August in one funding year and funding for the remainder of the calendar in the new funding year (that starts the fourth Monday in August). In this example, the open-enrollment charter school calendar would have 90 days of funding in one funding year and 90 days in the next funding year. The school would receive funding for a student participating in the instructional calendar as long as the student had not already completed a 180-day calendar in another charter school or school district before starting the charter school calendar beginning June 1.
Comment. Southwest Preparatory Charter School; Winfree Academy Charter Schools; KIPP Houston; Erath Excels! Academy, Inc.; Texans Can!; Responsive Education Solutions; and Trinity Charter School commented that there is no statutory basis for limiting ADA funding to "membership days." They commented that an open-enrollment charter school student who had missed a portion of a 180-day calendar track would not be eligible to generate further funding after that calendar track ended.
Agency Response. The agency disagrees. The 2008-2009 Student Attendance Accounting Handbook Version 2 does not limit funding beyond statutory requirements.
Per the TEC, §42.005, a student may generate ADA funding for 180 days of instruction. Per Section 3.8.4 of the 2008-2009 Student Attendance Accounting Handbook Version 2, as long as the 180 days fall within a single funding year, a student's attendance for those days would generate funding. If a charter school student were, for example, to attend 90 days of one calendar track and then attend 90 days of another later calendar track within the same state funding calendar year, all 180 days of attendance would be eligible for funding.
Comment. Southwest Preparatory Charter School; Winfree Academy Charter Schools; KIPP Houston; Erath Excels! Academy, Inc.; Texans Can!; Responsive Education Solutions; and Trinity Charter School commented that Section 3.8.4 of the 2008-2009 Student Attendance Accounting Handbook Version 2, when combined with the compulsory education statute (TEC, §25.085), may require an open-enrollment charter school to educate a student while denying ADA funding for instructional days. The group commented that because an open-enrollment charter school may provide staggered 180-day calendar tracks and because a student may complete part of one track and then switch to another, the charter school may be required to educate the student for more than 180 instructional days within the funding year.
Agency Response. The agency agrees that if a charter school accepts a student for participation in one of its calendar tracks, the school is obligated to provide the student with instruction for the duration of the track.
However, a charter school's allowing a student to participate in a second calendar track within the same funding year does not change the number of instructional days for which the student is eligible to generate ADA funding by law. Per the TEC, §42.005, a student may generate ADA funding for only 180 days of instruction. In accordance with the TEC, §42.005(a)(1), ADA is calculated by dividing the sum of attendance for each day of the minimum number of days of instruction (180 days) by the minimum number of days of instruction (180).
The amendment is adopted under the TEC, §42.004, which authorizes the commissioner of education, in accordance with rules of the State Board of Education, to take such action and require such reports consistent with Texas Education Code, Chapter 42, as may be necessary to implement and administer the Foundation School Program.
The amendment implements the TEC, §42.004.
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 February 13, 2009.
TRD-200900643
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: March 5, 2009
Proposal publication date: November 14, 2008
For further information, please call: (512) 475-1497