TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 74. CURRICULUM REQUIREMENTS

SUBCHAPTER BB. COMMISSIONER'S RULES CONCERNING HIGH SCHOOL GRADUATION

19 TAC §74.1023

The Texas Education Agency (TEA) adopts new §74.1023, concerning the financial aid application requirement for high school graduation. The new section is adopted with changes to the proposed text as published in the April 16, 2021 issue of the Texas Register (46 TexReg 2545) and will be republished. The adopted new rule reflects the requirements in House Bill (HB) 3, 86th Texas Legislature, 2019, that each student complete and submit a free application for federal student aid (FAFSA) or a Texas application for state financial aid (TASFA) before graduating from high school and that school districts and open-enrollment charter schools report completion information to TEA.

REASONED JUSTIFICATION: The 86th Texas Legislature, 2019, passed HB 3, adding new Texas Education Code (TEC), §28.0256, to require a student to complete a financial aid application, either the FAFSA or the TASFA, in order to graduate. The statute provides an exception for students to opt out of the financial aid application requirement by submitting a form signed by a parent, guardian, or student aged 18 years old or older that authorizes the student to decline to comply with the financial aid application graduation requirement. A high school counselor may also authorize a student to decline to comply with the financial aid application graduation requirement for good cause. The opt-out form must be approved by TEA. At the January 2021 State Board of Education (SBOE) meeting, the SBOE took action to add the financial aid application requirement to 19 TAC Chapter 74, Curriculum Requirements, Subchapter B, Graduation Requirements, §74.11, High School Graduation Requirements, effective beginning with students enrolled in Grade 12 during the 2021-2022 school year.

Adopted new §74.1023 establishes requirements for school districts and open-enrollment charter schools regarding the implementation of the financial aid application requirement.

Adopted subsections (b) and (c) address the conditions under which a student may decline to complete a financial aid application by formally opting out and establish requirements for the opt-out form. Based on public comment, subsection (b)(3) was amended at adoption by striking the sentence "In accordance with TEC, §28.0256(d), if a school counselor notifies a school district that a student has declined to complete and submit a financial aid application for good cause, the school counselor may not indicate details regarding what constitutes good cause."

Adopted subsection (d) establishes standards for required notifications school districts and open-enrollment charter schools must provide to students regarding the financial aid requirement, the financial aid applications, and the opt-out form and would establish timelines for the distribution of the information.

Adopted subsection (e) identifies the methods school districts and open-enrollment charter schools must require as proof that a student has completed and submitted the FAFSA or TASFA. This subsection also permits school districts and open-enrollment charter schools to adopt a local policy for the method by which a student must provide proof that the student has completed a FAFSA. The subsection also requires school districts and open-enrollment charter schools to adopt a local policy for the method by which a student must provide proof that the student has completed a TASFA.

Adopted subsection (f) establishes a requirement for school districts and open-enrollment charter schools to report the number of students who completed and submitted a financial aid application and the number of students who submitted exceptions in accordance with TEC, §28.0256(b).

Adopted subsection (g) ensures that school districts and open-enrollment charter schools maintain student financial aid application information securely and ensure compliance with federal and state law regarding the confidentiality of student educational information.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began April 16, 2021, and ended May 17, 2021. Following is a summary of public comments received and agency responses.

Comment. Two counselors and one parent stated that the financial aid application requirement seems to be an unfair disadvantage to students and holds students responsible for adults' choices.

Response. The agency disagrees and has determined that the financial aid application requirement does not unfairly disadvantage students. The agency also provides the following clarification. TEC, §28.0256, provides an exception for students to opt out of the financial aid application requirement by submitting a form signed by a parent, guardian, or student aged 18 years old or older that authorizes the student to decline to comply with the financial aid application graduation requirement.

Comment. Two administrators and four counselors stated that the completion of a financial aid application is not a reasonable requirement for students, especially students who do not intend to enroll in college.

Response. The agency provides the following clarification. A student may graduate without completing a financial aid application by submitting an opt-out form signed by the parent or guardian, counselor, or student if age 18 or older to authorize the student to decline to submit a financial aid application.

Comment. One counselor and one administrator expressed concern that the true agenda behind the financial aid application requirement seems to be more about catching parents who are not legal residents and not paying taxes.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One administrator and one parent stated that the financial aid application requirement is government overreach.

Response. The agency disagrees and has determined that the requirement to complete and submit a financial aid application is aligned with state law, TEC, §28.0256, and appropriately included in commissioner rule. The agency also provides the following clarification. A student may graduate without completing a financial aid application by submitting an opt-out form signed by the parent or guardian, counselor, or student if age 18 or older to authorize the student to decline to submit a financial aid application.

Comment. Two parents expressed concern regarding the number of incomplete or inaccurate forms submitted on behalf of students to fulfill the financial aid application requirement.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One administrator asked how school counselors will be trained to assist students with the financial aid application requirement and how they will track who applied and monitor parent/guardian support.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One administrator expressed concern about parent/guardian willingness to share personal financial information.

Response. The agency provides the following clarification. TEC, §28.0256, provides an exception for students to opt out of the financial aid application requirement by submitting a form signed by a parent, guardian, or student aged 18 years old or older that authorizes the student to decline to comply with the financial aid application graduation requirement.

Comment. One administrator stated that schools already have long lists of documents to track without the additional requirements of financial aid application or opt-out forms.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One counselor stated that it will be difficult to track when a family is opting out.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One counselor expressed concern that the financial aid application requirement will add to the amount of paperwork school counselors are required to track and complete and that time spent assisting students with this requirement will take away support time for student behavioral and mental health.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. Three parents stated that they are against the financial aid application requirement.

Response. The agency provides the following clarification. A student may graduate without completing a financial aid application by submitting an opt-out form signed by the parent or guardian, counselor, or student if age 18 or older to authorize the student to decline to submit a financial aid application.

Comment. One parent stated that more funding should be provided for additional school counseling staff to provide support to families.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One administrator and one community member stated that the financial aid application requirement seems to be unfair and provides no benefit to students.

Response. The agency disagrees and has determined that there is a clear benefit to students' submitting a financial aid application, including promoting their postsecondary education and eligibility for state and federal funds. The agency also provides the following clarification. TEC, §28.0256, provides an exception for students to opt out of the financial aid application requirement by submitting a form signed by a parent, guardian, or student aged 18 years old or older that authorizes the student to decline to comply with the financial aid application graduation requirement.

Comment. One administrator stated that their school provides training to parents and students on financial aid applications and that this requirement is unnecessary.

Response. The agency disagrees and has determined that the requirement to complete and submit a financial aid application is necessary to comply with state law, TEC, §28.0256, and appropriately included in commissioner rule.

Comment. One administrator and one counselor stated that the FAFSA is not law but an optional activity and that parents and students should not be required to complete a financial aid application.

Response. The agency disagrees and has determined that the requirement to complete and submit a financial aid application is aligned with state law, TEC, §28.0256, and appropriately included in commissioner rule.

Comment. One counselor expressed concern that the financial aid application requirement promotes the belief that it is school counselors' responsibility to make sure students test for admission, apply to college, receive scholarships, etc.

Response. This comment is outside the scope of the proposed rulemaking.

Comment. One counselor stated that schools should not be responsible for the financial aid application requirement.

Response. The agency disagrees and has determined that the requirement to complete and submit a financial aid application is aligned with state law, TEC, §28.0256, and appropriately included in commissioner rule.

Comment. The Texas Association of School Boards (TASB) expressed concern that TEC, §28.0256(d), conflicts with proposed 19 TAC §74.1023(b)(3) and requested clarification. TASB noted that TEC, §28.0256(d), states that a school counselor "may not indicate the manner" in which the student complies with the high school graduation requirements under the section but that the proposed rule requires the school counselor to notify the district that the student "declined to complete and submit a financial aid application for good cause." TASB stated that TEC, §28.0256(d), seems to prohibit the counselor from indicating which of the options for exemption the student used (student authorization, parent authorization, or counselor authorization), i.e., the "manner" in which the student complied by receiving an exemption.

Response. The agency agrees that the language could be confusing and modified §74.1023(b)(3) at adoption to strike the sentence that reads, "In accordance with TEC, §28.0256(d), if a school counselor notifies a school district that a student has declined to complete and submit a financial aid application for good cause, the school counselor may not indicate details regarding what constitutes good cause."

Comment. TASB recommended that the language in proposed 19 TAC §74.1023(e)(2) be changed to require procedures instead of policy to clarify that a school board does not need to adopt a policy regarding the method by which a student provides proof that he or she completed the FAFSA and TASFA. TASB stated that allowing the adoption of the TEA-provided opt-out form to be handled at the administrative level reduces time spent in board meetings on ministerial tasks and allows for efficient changes if the form is ever updated.

Response. The agency disagrees and has determined that the establishment of a local policy by the school board was in keeping with the recommendations of the Financial Aid Application Requirement Advisory Committee.

STATUTORY AUTHORITY. The new section is adopted under Texas Education Code (TEC), §28.0256(a), as added by House Bill (HB) 3, 86th Texas Legislature, 2019, which requires each student to complete and submit a free application for federal student aid (FAFSA) or a Texas application for state financial aid (TASFA) before graduating from high school. TEC, §28.0256(c), allows a student to formally opt out of the financial aid application requirement by submitting a TEA-approved form; TEC, §28.0256(e)(1), as added by HB 3, 86th Texas Legislature, 2019, which requires the commissioner of education by rule to establish timelines for the distribution to students of the FAFSA and TASFA and for the submission of the opt-out form. The rule is required to include standards for information school districts and open-enrollment charter schools must provide to students regarding filling out the FAFSA and TASFA and the option for students to decline to complete a financial aid application. Additionally, the rule is required to establish the method by which a student must provide proof to the school district or open-enrollment charter school that the student has submitted a FAFSA or TASFA; TEC, §28.0256(e)(2), as added by HB 3, 86th Texas Legislature, 2019, which requires the commissioner to adopt rules regarding the requirement that school districts report information regarding the number of students who completed and submitted a financial aid application and the number of students who received an exception by submitting an opt-out form; and TEC, §28.0256(e)(3), as added by HB 3, 86th Texas Legislature, 2019, which requires the commissioner to ensure compliance with federal law regarding confidentiality of student educational information, including the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information.

CROSS REFERENCE TO STATUTE. The new section implements Texas Education Code, §28.0256(a), (c), and (e), as added by House Bill 3, 86th Texas Legislature, 2019.

§74.1023.Financial Aid Application Requirement for High School Graduation.

(a) In accordance with Texas Education Code (TEC), §28.0256, beginning with students enrolled in Grade 12 during the 2021-2022 school year, a student shall complete and submit a free application for federal student aid (FAFSA) or a Texas application for state financial aid (TASFA) as a requirement for receiving a high school diploma.

(b) A student may opt out of the financial aid application requirement in subsection (a) of this section under one of the following conditions:

(1) the student's parent or other person standing in parental relation submits a signed form indicating that the parent or other person authorizes the student to decline to complete and submit the financial aid application;

(2) the student signs and submits the form described by paragraph (1) of this subsection on the student's own behalf if the student is 18 years of age or older or is emancipated under the Texas Family Code, Chapter 31; or

(3) a school counselor signs and submits the form described by paragraph (1) of this subsection indicating that the school counselor authorizes the student to decline to complete and submit the financial aid application for good cause, as determined by the school counselor.

(c) The board of trustees for each school district and open-enrollment charter school shall adopt the standard opt-out form provided by the Texas Education Agency (TEA) for the purpose of the exceptions under subsection (b) of this section.

(1) The opt-out form shall be available in English, Spanish, and any other language spoken by a majority of the students enrolled in a bilingual education or special language program under TEC, Chapter 29, Subchapter B, in the district or charter school. Districts and charter schools are responsible for translations not provided by TEA.

(2) The opt-out form must include the student's signature of intent to decline to complete a financial aid application prior to the student's anticipated graduation date.

(d) Each school district and open-enrollment charter school shall provide students with the following notifications regarding the financial aid application requirement.

(1) Standard information regarding the financial aid requirement and the exceptions under subsection (b) of this section shall be provided at the time a student first registers for one or more classes required for high school graduation.

(2) Detailed information regarding instructions for the completion and submission of a financial aid application shall be provided to a student at the beginning of Grade 12 or at the time a student in Grade 12 transfers into a high school from a non-public school or a public school outside of Texas. The instructions shall include:

(A) an explanation of the FAFSA and TASFA and the difference between the two;

(B) instructions for how to access the FAFSA and TASFA, including key dates and deadlines for completion and submission;

(C) resources available to support completion and submission of the FAFSA and TASFA;

(D) documents and information required to complete the FAFSA or TASFA; and

(E) contact information for school staff or local community resources available to support completion of the forms.

(3) Options available to a student under subsection (b) of this section if a student wishes to decline to complete and submit a financial aid application shall be provided to a student at the beginning of Grade 12 or at the time a student in Grade 12 transfers into a high school from a non-public school or a public school outside of Texas. The options shall include:

(A) the opt-out form and explanation of required signatures; and

(B) notification that if the student chooses to opt out for the purposes of graduation, the student will still be eligible to complete the FAFSA or TASFA that year or in subsequent years.

(e) Each school district and open-enrollment charter school shall require one of the following methods of proof that a student has completed and submitted the FAFSA or TASFA as required by this section.

(1) Completion and submission of the FAFSA shall be confirmed through one of the following methods:

(A) ApplyTexas Counselor Suite FAFSA data;

(B) notification from the United States Department of Education that demonstrates a student has completed and submitted a FAFSA; or

(C) a local policy developed by a school district or an open-enrollment charter school for the method by which a student must provide proof that the student has completed a FAFSA.

(2) School districts and open-enrollment charter schools shall develop a local policy for the method by which a student must provide proof that the student has completed a TASFA.

(f) Each school district and open-enrollment charter school shall report through the Texas Student Data System Public Education Information Management System (TSDS PEIMS) the following information not later than December 1 of each school year for students awarded diplomas in the previous school year:

(1) the number of students who completed and submitted a financial aid application; and

(2) the number of students who submitted an exception.

(g) Each school district and open-enrollment charter school shall maintain student financial aid application information securely and ensure compliance with federal law regarding the confidentiality of student educational information, including the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information.

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 6, 2021.

TRD-202103959

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: October 26, 2021

Proposal publication date: April 16, 2021

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


CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS

SUBCHAPTER D. SPECIAL EDUCATION SERVICES AND SETTINGS

19 TAC §89.61, §89.63

The State Board of Education (SBOE) adopts the repeal of §89.61 and §89.63, concerning special education services and settings. The repeals are adopted without changes to the proposed text as published in the July 23, 2021 issue of the Texas Register (46 TexReg 4430) and will not be republished. The adopted repeals implement House Bill (HB) 3, 86th Texas Legislature, 2019, which removed the SBOE's rulemaking authority related to instructional arrangements in special education.

REASONED JUSTIFICATION: Section 89.61 allows a school district to contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education. Section 89.63 allows a school district to provide services through special education personnel to students with disabilities in order to meet the special needs of those students, defines the regular school day as the period of time determined appropriate by the ARD committee, defines special education instructional arrangements/settings, and requires that the instructional arrangements/settings be based on the individual needs and individualized education programs of eligible students receiving special education.

HB 3, 86th Texas Legislature, 2019, redesignated Texas Education Code (TEC), §42.151, as TEC, §48.102, and amended the statute to transfer rulemaking authority related to residential placements and instructional arrangements from the SBOE to the commissioner of education. New 19 TAC §89.1005, Instructional Arrangements and Settings, and §89.1092, Contracting for Residential Educational Placements for Students with Disabilities, were adopted under the commissioner's rulemaking authority effective March 14, 2021. The repeal of §89.61 and §89.63 is necessary as statutory authority for the rules no longer exists.

The SBOE approved the proposed repeals for first reading and filing authorization at its June 25, 2021 meeting and for second reading and final adoption at its September 3, 2021 meeting.

In accordance with TEC, §7.102(f), the SBOE approved the repeals for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2022-2023 school year. The earlier effective date will remove rules whose statutory authority no longer exists as soon as possible. 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 July 23, 2021, and ended at 5:00 p.m. on August 27, 2021. The SBOE also provided an opportunity for registered oral and written comments at its September 2021 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 educator commented that with limited public resources, residential facilities are typically not appropriate placements. The commenter added that these facilities do not provide age-appropriate nondisabled peers as role models for students with disabilities.

Response: The SBOE provides the following clarification. Section 89.61 and §89.63 are being repealed because rulemaking authority transferred from the SBOE to the commissioner of education. Substantially similar rules were adopted in 19 TAC §89.1005 and §89.1092 under the commissioner's rulemaking authority effective March 14, 2021.

Comment: A dyslexia coordinator commented that if the state only includes evaluation under IDEA, many students may not be identified early and would lose the chance for early intervention.

Response: This comment is outside the scope of the current rule proposal.

STATUTORY AUTHORITY. The repeals are adopted under Texas Education Code (TEC), §48.102(e), as amended and redesignated by House Bill (HB) 3, 86th Texas Legislature, 2019, which requires the commissioner of education by rule to prescribe the qualifications and instructional arrangements that must be met in order to be funded as a particular instructional arrangement under TEC, §48.102; and TEC, §48.102(g), as amended and redesignated by HB 3, 86th Texas Legislature, 2019, which requires the commissioner of education to adopt rules governing contracts for residential placement of special education students.

CROSS REFERENCE TO STATUTE. The repeals implement Texas Education Code, §48.102(e) and (g).

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 6, 2021.

TRD-202103957

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: October 26, 2021

Proposal publication date: July 23, 2021

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


CHAPTER 109. BUDGETING, ACCOUNTING, AND AUDITING

SUBCHAPTER B. TEXAS EDUCATION AGENCY AUDIT FUNCTIONS

19 TAC §109.25

The State Board of Education (SBOE) adopts an amendment to §109.25, concerning the state compensatory education program reporting and auditing system. The amendment is adopted without changes to the proposed text as published in the July 23, 2021, issue of the Texas Register (46 TexReg 4431) and will not be republished. The adopted amendment updates references to statutory citations that were renumbered by House Bill (HB) 3, 86th Texas Legislature, 2019.

REASONED JUSTIFICATION: Section 109.25 addresses the requirement for each school district and charter school to report financial information relating to the expenditure of the state compensatory education allotment under the Foundation School Program to the Texas Education Agency.

Changes to §109.25 are necessary as a result of the statutorily required rule review of Chapter 109. The adopted amendment replaces Texas Education Code (TEC), §42.152(c), with §48.104(k) and TEC, §42.152(q), with §48.104(o) to reflect the renumbering of statute by HB 3, 86th Texas Legislature, 2019.

The SBOE approved the proposed amendment for first reading and filing authorization at its June 25, 2021 meeting and for second reading and final adoption at its September 3, 2021 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 2022-2023 school year. The earlier effective date will update references to statute as soon as possible. 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 July 23, 2021, and ended at 5:00 p.m. on August 27, 2021. The SBOE also provided an opportunity for registered oral and written comments at its September 2021 meeting in accordance with the SBOE board operating policies and procedures. Following is a summary of the public comment received and the corresponding response.

Comment: The National Parents Union expressed thanks to the SBOE for their due diligence with Chapter 109, Budgeting, Accounting, and Auditing.

Response: The SBOE agrees.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code, §48.104, as redesignated and amended by House Bill 3, 86th Texas Legislature, 2019, which requires the State Board of Education to adopt rules requiring a report on the use of compensatory education funds as part of the annual audit and develop minimum requirements for that report.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §48.104.

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 6, 2021.

TRD-202103958

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: October 26, 2021

Proposal publication date: July 23, 2021

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