TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 129. STUDENT ATTENDANCE

SUBCHAPTER AA. COMMISSIONER'S RULES

19 TAC §129.1025

The Texas Education Agency (TEA) adopts an amendment to §129.1025, concerning student attendance. The amendment is adopted without changes to the proposed text as published in the July 5, 2019 issue of the Texas Register (44 TexReg 3420) and will be not republished. The amendment adopts by reference the 2019-2020 Student Attendance Accounting Handbook. Although changes were not made to the text of §129.1025, the student attendance accounting handbook (SAAH) adopted by reference in the rule includes changes to Sections 2, 3, and 5 and the glossary at adoption.

REASONED JUSTIFICATION: The TEA has adopted its student attendance accounting handbook in rule since 2000. Attendance accounting evolves from year to year, so the intention is to annually update 19 TAC §129.1025 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 FSP eligibility requirements of all students, prescribes the minimum requirements of all student attendance accounting systems, lists the documentation requirements for attendance audit purposes, and details the responsibilities of all district personnel involved in student attendance accounting. The TEA distributes Foundation School Program (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. A supplement, if necessary, is also published on the TEA website.

The amendment to 19 TAC §129.1025 adopts by reference the SAAH for the 2019-2020 school year. The full text of the 2019-2020 Student Attendance Accounting Handbook is available electronically on the TEA website at https://tea.texas.gov/Finance_and_Grants/Financial_Compliance/Student__Attendance_Accounting_Handbook. The adopted version of the handbook does not reflect legislation from the 86th Texas Legislature, 2019, that may impact student attendance accounting. An updated version of the 2019-2020 Student Attendance Accounting Handbook may be proposed at a later date to provide additional guidance.

Significant changes to the 2019-2020 Student Attendance Accounting Handbook from the 2018-2019 Student Attendance Accounting Handbook include the following.

Section 2, Audit Requirements

TEC, Chapter 42, specifically §42.255, establishes the requirements for violation of presenting reports that contain false information. TEC, §42.008, authorizes the commissioner to require audit reports to be submitted for review and analysis. TEC, §44.010, allows for the review of budget, fiscal, and audit reports to determine whether all legal requirements have been met. The following changes implement reporting for audit requirements to account for attendance and funding.

The following changes were made to Section 2 at adoption.

Language was added for clarification purposes to include charter schools in the requirement to submit six weeks District Summary Reports through the FSP payment system.

In response to public comment, language was added to clarify that documenting posted absences includes all attendance (absent and present).

Section 3, General Attendance Requirements

TEC, §25.081, and Chapter 42, specifically §42.005, establish the general parameters for attendance and school operation. The following changes implement reporting requirements for attendance and funding.

Language was added to include recess, breakfast, and lunch as instructional time for purposes of funding and the two-through-four-hour rule for prekindergarten-only programs.

Language was added to clarify the definition of overage to include students who are 26 years old on September 1 of the current school year and are not enrolled in an adult high school diploma and industry certification charter school pilot program.

Language was added to define the official attendance taking time as any time selected during the instructional day instead of a time selected during the second or fifth instructional hour.

Language was added to include students enrolled in a TEA-designated Pathways in Technology Early College High School (P-TECH) as a funding eligibility exception.

Language was added to clarify the definition of academic year for determining whether a student should have an immigrant indicator code when establishing a student's residency.

Language was added to change general education diploma (GED) to Texas Certificate of High School Equivalency (TxCHSE).

Language was added to clarify the requirements for paraprofessionals who take attendance during the official attendance taking time.

Language was revised to clarify that funding may be received for a student who is temporarily absent because of a documented medical appointment for the student or the student's child with a health care professional licensed, certified, or registered to practice in the United States.

The following changes were made to Section 3 at adoption.

Language was added to clarify that the State Funding Division is one of the divisions that will review attendance audit documentation.

In response to public comment, language was added to include a wider recognition of biometric identification method that can be used to take attendance.

Also in response to public comment, language was deleted to remove the face-to-face requirement with a health care professional as the only allowable appointment for FSP funding purposes.

Section 4, Special Education

TEC, Chapter 42, specifically §42.151, authorizes funding for special education in certain circumstances. TEC, §42.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes implement reporting for special education to account for attendance and funding.

Language was added to change preschool program for children with disabilities (PPCD) to early childhood special education (ECSE) service program to clarify and promote understanding that any child age three through five years who is eligible for and receiving special education and related services through a school district must be served in the least restrictive environment specified in the child's individualized education program (IEP). References to PPCD are being phased out of the student attendance accounting handbook, and students will instead be considered to be receiving ECSE services.

Language was added to clarify that if a student's admission, review, and dismissal (ARD) committee determines that instruction through remote conferencing is appropriate for a student, that determination does not mean that the student's instructional setting code will change.

Section 5, Career and Technical Education (CTE)

TEC, Chapter 42, including §42.154, authorizes funding for career and technical education (CTE) in certain circumstances. TEC, Chapter 29, Subchapter F, establishes general parameters for CTE programs. TEC, §42.004, authorizes the commissioner to require reports as may be necessary to implement and administer the FSP. The following change implements reporting for CTE to account for attendance and funding.

Language was added to include state-approved technology applications courses in a cybersecurity pathway for the science, technology, engineering, and mathematics (STEM) endorsement in the 2019-2020 school year as eligible for funding.

In response to public comment, the following change was made at adoption.

The chart in section 5.5 was revised to coincide with the minutes for the appropriate V-code.

Section 6, Bilingual/English as a Second Language (ESL)

TEC, Chapter 42, specifically §42.153, authorizes funding for bilingual or special language programs in certain circumstances. TEC, Chapter 29, Subchapter B, establishes general parameters for bilingual and special language programs. TEC, §42.004, authorizes the commissioner to require reports as may be necessary to implement and administer the FSP. The following changes implement reporting for bilingual and special language programs to account for attendance and funding.

Language was added to clarify the difference between the use of the terms "reclassification" and "exit" in alignment with 19 TAC Chapter 89, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating English Learners. "Reclassification" is the process for English learners (ELs) who have met criteria to be identified as non-limited English proficient/English proficient, and "exit" describes the process for reclassified students to no longer participate in a bilingual or ESL program.

Language was added to clarify the procedures for identifying a student as an EL and enrolling the EL in the bilingual or ESL education program for the first time in a Texas public school.

Language was added to include Vietnamese as one of the languages in the home language survey for prekindergarten eligibility if the student is eligible for prekindergarten because the student does not speak and comprehend the English language.

Section 7, Prekindergarten (PK)

TEC, Chapter 29, Subchapter E, establishes special general parameters for prekindergarten programs. TEC, Chapter 42, including §42.005, establishes average daily attendance (ADA) requirements and authorizes funding for certain circumstances. TEC, §42.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes implement reporting for prekindergarten to account for attendance and funding.

Language was revised and added to include recess, breakfast, and lunch as instructional time for purposes of funding and the two-through-four-hour rule for prekindergarten-only programs.

Language was added to clarify documentation requirements for districts preregistering prekindergarten students to determine and plan for the size of the next school year's prekindergarten program.

Section 11, Nontraditional Programs

TEC, Chapter 29, Subchapter A, establishes special general parameters for nontraditional programs. TEC, Chapter 42, including §42.005, establishes ADA requirements and authorizes funding for certain circumstances. TEC, §42.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes implement reporting for nontraditional programs to account for attendance and funding.

Terminology was added to permit a student enrolled in a TEA-designated P-TECH, Industry Cluster Innovative Academy, or Texas Science, Technology, Engineering and Mathematics Academy to enroll in dual credit courses if the student demonstrates college readiness by achieving the minimum passing standard(s) on a qualifying assessment instrument.

A chart was added to specify the minimum passing standards to demonstrate college readiness for students' eligibility in dual credit courses.

ADA eligibility increased from 55 to 60 minutes each day for each virtual course taken through the Texas Virtual School Network (TXVSN).

Language was added to define successful completion of the TXVSN education program for Grades 3-8 as completion of the TXVSN education program and demonstrated academic proficiency with passing grades sufficient for promotion to the next grade level.

Section 13, Appendix: Average Daily Attendance (ADA) and Funding

Glossary

The definition of two-through-four-hour-rule was revised for prekindergarten-only programs.

The definition of age was revised.

A definition for early childhood special education services (ECSE) was added.

A definition for English learner (EL) was added.

A definition for English proficient (EP) was added.

The definition of expulsion was revised.

The definition of homeless student was revised.

The definition of juvenile justice alternative education program (JJAEP) was revised.

The definition for preschool program for children with disabilities (PPCD) was deleted.

A definition for reclassification was added.

In response to public comment, the definition for instructional day was revised.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began July 5, 2019, and ended August 5, 2019. Following is a summary of comments received and corresponding agency responses.

Section 2, Audit Requirements

Comment: A Public Education Information Management System (PEIMS) coordinator from Crosby Independent School District (ISD) requested clarification of the verbiage for documenting posted absences.

Agency Response: The agency agrees and has updated Section 2.2.3 of the SAAH to clarify that documenting posted absences includes all attendance (absent and present).

Section 3, General Attendance

Comment: An assistant superintendent from the Excel Center Charter School District recommended that Section 3.2.3 of the SAAH should be corrected to show the age of eligibility in the chart as 51 instead of 50 based on statute.

Agency Response: The agency agrees. The updates for all legislative changes from the 86th Texas Legislature, 2019, including updates to Sections 3.2.3 and 12.2.1, will be included in Version 2 of the 2019-2020 SAAH scheduled for proposal in October 2019.

Comment: An administrator from Austin ISD and a senior director for school safety policy from Meadows Mental Health Policy Institute (MMHPI) requested that the limitation that an appointment with a health care professional must be a face-to-face consultation for a student to be considered in attendance for funding purposes be removed and allow for telemedicine to be considered as an appointment with a health care professional for funding purposes.

Agency Response: The agency agrees and has removed the limitation of a face-to-face only appointment with a health care professional to allow for telemedicine appointments in Section 3.6.3 of the SAAH as a type of appointment to be considered for funding purposes.

Comment: A student information systems administrator from Killeen ISD requested that Section 3.6 of the SAAH be changed to a slightly wider recognition of biometric identification. The commenter requested that certain biometrics such as facial recognition, retina recognition, and iris recognition be considered as a method for taking attendance.

Agency Response: The agency agrees and has modified Section 3.6 of the SAAH to include biometric identification to be used as a method for taking attendance.

Section 5, Career and Technical Education (CTE)

Comment: An administrator from Austin ISD and one from Pflugerville ISD commented that the chart in Section 5.5 of the SAAH has not been updated to reflect the 50-minutes change. The commenters noted that on page 172, the version as proposed would read, "three separate 50-minute CTE courses would be assigned a code of V3." The commenters requested that the chart be updated and minutes remain at 45 minutes to avoid discrepancies between the chart and the examples.

Agency Response: The agency agrees. The example in Section 5.5 will reflect 45 minutes and the chart will be updated to coincide with the appropriate codes.

Comment: An administrator Pflugerville ISD commented that many CTE courses are lab based and require extensive safety measures. The requestor asked that Section 5.3.1 of the SAAH include a statement regarding safe instructional setting when determining the number of students to enroll in a class.

Agency Response: The agency disagrees that language be included in the SAAH regarding safety issues. Districts and charter schools may consider updating their local policies to address all safety and health concerns for specific courses and required classroom sizes based on campus needs.

Comment: Administrators from College Station ISD, Uvalde ISD, Grapevine-Colleyville ISD, Friendswood ISD, Keller ISD, Pflugerville ISD, Hurst-Euless-Bedford ISD, Medina Valley ISD, Rockdale ISD, New Caney ISD, and Melissa ISD; teachers from Keller ISD, Tulia ISD, and Utopia ISD, Melissa ISD; a director from Irving ISD; a counselor from Mildred ISD; and an individual from Bi-County Cooperative commented on the need to change Sections 5.2.1 and 5.2.2 of the SAAH to reflect that eligibility of students for funding for contact hours should include students in Grades 7-12. The commenters also commented that eligibility of students for funding for contact hours should include weighted funding for students who enroll in technology application courses based on changes to statute from the 86th Texas Legislature, 2019.

Agency Response: The agency agrees. The updates for all legislative changes from the 86th Texas Legislature, 2019, including updates to Sections 5.2.1 and 5.2.2, will be included in Version 2 of the 2019-2020 SAAH scheduled for proposal in October 2019.

Section 12, Virtual, Remote, and Electronic Instruction

Comment: An assistant superintendent from the Excel Center Charter School District recommended that Section 12.2.1 of the SAAH should include in the eligibility requirements a student who is at least 19 years of age, but less than 51 years of age on September 1 of the current school year, and enrolled in an adult high school diploma and industry certification charter school pilot program.

Agency Response: The agency disagrees. The rule provisions currently in place are correct per statute. The comment does not necessitate a change to the SAAH at this time.

Glossary

Comment: A PEIMS coordinator from New Caney ISD recommended that the instructional day definition be clarified to include language about passing periods.

Agency Response: The agency agrees and has clarified the definition for the instructional day to state that the instructional day does not include passing periods.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), which §7.055(b)(35), states that the commissioner shall perform duties in connection with the Foundation School Program (FSP) as prescribed by the TEC, Chapter 42; TEC, §25.081, which states that for each school year, each school district must operate so that the district provides for at least 75,600 minutes, including time allocated for instruction, intermissions, and recesses, for students. TEC, §25.081(d), authorizes the commissioner to adopt rules to implement the section. TEC, §25.081(f), states that a school district may not provide student instruction on Memorial Day but that if a school district would be required to provide student instruction on Memorial Day to compensate for minutes of instruction lost because of school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity, the commissioner shall approve the instruction of students for fewer than the number of minutes required under TEC, §25.081(a); TEC, §25.0812, which states that school districts may not schedule the last day of school for students before May 15; TEC, §25.087, which requires that a school district excuse a student who is 17 years of age or older from attending school to pursue enlistment in a branch of the armed services of the United States or the Texas National Guard, provided that (1) the district may not excuse for this purpose more than four days of school during the period the student is enrolled in high school; and (2) the district verifies the student's activities related to pursuing enlistment in a branch of the armed services or the Texas National Guard. The statute requires each school district to adopt procedures to verify a student's activities as described by TEC, §25.087(b-5); TEC, §29.0822, which enables a school district to provide a program under this section that meets the needs of students described by TEC, §29.0822(a), for a school district that meets application requirements, including allowing a student to enroll in a dropout recovery program in which courses are conducted online; TEC, §30A.153, which states that, subject to the limitation imposed under the TEC, §30A.153(a-1), a school district or open-enrollment charter school in which a student is enrolled is entitled to funding under the TEC, Chapter 42, or in accordance with the terms of a charter granted under the TEC, §12.101, for the student's enrollment in an electronic course offered through the state virtual school network in the same manner that the district or school is entitled to funding for the student's enrollment in courses provided in a traditional classroom setting, provided that the student successfully completes the electronic course; TEC, §42.004, which states that the commissioner, in accordance with the rules of the State Board of Education, shall take such action and require such reports consistent with the TEC, Chapter 42, as may be necessary to implement and administer the FSP; TEC, §42.005, which states that average daily attendance is the quotient of the sum of attendance for each day of the minimum number of days of instruction as described under the TEC, §25.081(a), divided by the minimum number of days of instruction; TEC, §42.151, which states that for each student in average daily attendance in a special education program under the TEC, Chapter 29, Subchapter A, in a mainstream instructional arrangement, a school district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 1.1. For each full-time equivalent student in average daily attendance in a special education program under the TEC, Chapter 29, Subchapter A, in an instructional arrangement other than a mainstream instructional arrangement, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by a weight determined according to its instructional arrangement; TEC, §42.152, which states that for each student who is educationally disadvantaged or who is a student who does not have a disability and resides in a residential placement facility in a district in which the student's parent or legal guardian does not reside, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 0.2, and by 2.41 for each full-time equivalent student who is in a remedial and support program under the TEC, §29.081, because the student is pregnant; TEC, §42.153, which states that for each student in average daily attendance in a bilingual education or special language program under the TEC, Chapter 29, Subchapter B, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 0.1; and TEC, §42.154, which states that for each full-time equivalent student in average daily attendance in an approved career and technology education program in Grades 9-12 or in career and technology education programs for students with disabilities in Grades 7-12, a district is entitled to weighted funding.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §§7.055(b)(35), 25.081, 25.0812, 25.087, 29.0822, 30A.153, 42.004, 42.005, 42.151-42.153, and 42.154.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 1, 2019.

TRD-201903540

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: October 21, 2019

Proposal publication date: July 5, 2019

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


CHAPTER 157. HEARINGS AND APPEALS

SUBCHAPTER D. INDEPENDENT HEARING EXAMINERS

19 TAC §157.41

The State Board of Education (SBOE) adopts an amendment to §157.41, concerning certification criteria for independent hearing examiners. The amendment is adopted without changes to the proposed text as published in the August 2, 2019 issue of the Texas Register (44 TexReg 4002) and will not be republished. The adopted amendment allows the commissioner of education to take action against the certificate of an independent hearing examiner if it is determined that the law firm with which the independent hearing examiner is associated, during the time the independent hearing examiner has been certified, meets specified criteria.

REASONED JUSTIFICATION: Texas Education Code (TEC), §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners. Section 157.41 specifies certification criteria such as license required, experience, continuing education, and annual recertification for independent hearing examiners. The examiners preside over due process hearings involving terminations, suspensions without pay, and nonrenewal of term employment contracts. The examiners also develop findings of fact and conclusions of law, which are referred to the school district board of trustees.

Currently, §157.41 specifies that the commissioner may take action against the certificate of an independent hearing examiner if it is determined that the independent hearing examiner, during the time the independent hearing examiner has been certified, has: (1) served as an agent or representative of a school district; (2) served as an agent or representative of a teacher in any dispute with a school district; (3) served as an agent or representative of an organization of school employees, school administrators, or school boards; or (4) failed to timely issue a recommendation. The adopted amendment specifies in subsection (l) that the commissioner may also take action against the certificate of an independent hearing examiner if it is determined that the law firm with which the independent hearing examiner is associated meets any of the same criteria. This change aligns the rule with TEC, §21.252.

TEC, §21.252(a), requires the SBOE, in consultation with the State Office of Administrative Hearings (SOAH), to establish certification criteria for hearing examiners. Texas Education Agency provided the proposed rule text to the SOAH and requested suggestions and comments. The SOAH responded that it had no questions or comments.

The SBOE approved the proposed amendment for first reading and filing authorization at its June 14, 2019 meeting and for second reading and final adoption at its September 13, 2019 meeting.

In accordance with TEC, §7.102(f), the SBOE approved the amendment for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2020-2021 school year. The earlier effective date will allow improvements in the quality of independent hearing examiners to begin sooner and prevent an additional round of yearly nonrenewals from occurring before the amendment takes effect. The effective date is 20 days after filing as adopted with the Texas Register.

SUMMARY OF COMMENTS AND RESPONSES. The public comment period on the proposal began August 2, 2019, and ended September 6, 2019. The SBOE also provided an opportunity for registered oral and written comments at its September 2019 meeting in accordance with the SBOE board operating policies and procedures. Following is a summary of the public comments received and the corresponding responses.

Comment. An administrator commented that it is wasteful to pay an attorney to serve as an independent hearing examiner. The administrator stated that a retired or former school superintendent would be more than qualified to hear and rule on such cases.

Response. The SBOE disagrees and maintained language as proposed. TEC, §21.252(a), requires certified hearing examiners to "be licensed to practice law in this state."

Comment. A parent commented that the proposal provides good clarification so as not to allow a person or law office to shield wrong behavior.

Response. The SBOE agrees. TEC, §21.252(b), requires disqualification based on a conflict a lawyer's law firm may have.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §21.252, which requires the State Board of Education, in consultation with the State Office of Administrative Hearings, by rule to establish criteria for certifying independent hearing examiners who conduct hearings under the TEC, Chapter 21, Subchapter F.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §21.252.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 1, 2019.

TRD-201903538

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: October 21, 2019

Proposal publication date: August 2, 2019

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