(a) The chief executive officer of each postsecondary
educational institution shall annually certify in writing to the Coordinating
Board, not later than October 31 of each year, that the institution
is in substantial compliance with Texas Education Code, Chapter 51,
Subchapter E-2. The Coordinating Board shall make available to institutions
a required template for the certification which satisfies the requirements
of this section.
(b) In addition to annually reviewing the reporting
under Texas Education Code §51.258 and §3.19, the Coordinating
Board shall conduct risk-based compliance monitoring of Texas Education
Code, Chapter 51, Subchapters E-2 and E-3. The Coordinating Board
will determine the basis for reviews based on risk factors such as
time since last review, stakeholder feedback, prior findings or complaints,
and other factors. The Coordinating Board shall make available to
the institutions a report template which satisfies the requirements
of this section.
(c) If the Coordinating Board determines that a postsecondary
educational institution is not in substantial compliance with Texas
Education Code, Chapter 51, Subchapters E-2, effective January 1,
2020, or Subchapter E-3, effective August 1, 2020, the Coordinating
Board may assess an administrative penalty against the institution
in an amount not to exceed $2 million annually. Compliance errors
committed by an institution or system that are in substantial compliance
with Subchapters E-2 and E-3 will not result in a penalty. The Coordinating
Board will not find an institution is out of substantial compliance
with the provisions in Subchapter E-2 and Subchapter E-3 based on
a determination that the Coordinating Board would have taken different
action after an independent evaluation of evidence.
(d) In evaluating whether an institution or system
is in substantial compliance in accordance with §3.3 of this
title (relating to Definitions), the Coordinating Board will determine
the institution's or system's good faith effort by evaluating the
following factors:
(1) The nature and seriousness of the compliance error;
(2) The extent to which the institution complied with
the statutory requirements and to what extent it did not;
(3) The number of any institutional compliance errors;
(4) Whether the institution had actual notice of the
error;
(5) Whether the institution made any effort to rectify
any compliance errors or agrees to rectify any violations going forward;
(6) The extent to which the institution has relevant
policies and/or practices;
(7) The institution' s intent;
(8) Severity of the error' s effect;
(9) Any previous compliance errors of a similar kind
and the time lapse since those error(s);
(10) Institutional efforts to prevent compliance errors,
including the extent to which the institution provided training to
employees and/or acted after learning about the error;
(11) The explanation for the cause of the compliance
error, including a good-faith mistake; a differing, reasonable interpretation
of the law; a conflict between two provisions, or a conflict with
another legal or governmental requirement (such as Title IX regulations
or a mandatory report to the National Institutes of Health);
(12) Any prevention and/or response efforts of the
institution, made in good faith, to address a possible compliance
error;
(13) The degree of cooperation of the institution with
the Coordinating Board in remedying a potential compliance error;
and
(14) Any other fact or circumstance as justice may
require.
(e) A postsecondary educational Institution's failure
to timely and accurately file the certification of substantial compliance
with Texas Education Code §51.258 and Subsection (a) not later
than October 31 of each year shall result in a penalty of $2,000 per
day of violation.
(1) A postsecondary educational institution may cure
a violation under this subsection by filing its report not later than
November 30 of the year the report was due.
(2) If the postsecondary educational institution cures
the violation as provided in this subsection, the Coordinating Board
shall not assess a penalty.
(3) If the postsecondary educational Institution fails
to cure the violation as provided in this subsection, the Coordinating
Board shall assess the full penalty owed under this subsection beginning
on November 1 of the year the report was due.
(4) If a postsecondary educational institution files
a good faith correction to a previously filed certification of substantial
compliance within a reasonable time of discovering an unintentional
error, but not later than February 1 following the due date of the
report, the Coordinating Board shall not assess a penalty.
(f) The Coordinating Board may assess an administrative
penalty, up to a total of $2 million annually, if a postsecondary
educational institution has failed to maintain substantial compliance
with Texas Education Code, Chapter 51, Subchapters E-2 or E-3.
(1) In determining the total penalty to assess, the
Coordinating Board shall consider the number of students at the institution,
the penalty matrix in this section, apply mitigating and aggravating
factors, and any other factor justice may require. Mitigating factors
may result in a reduction of the administrative penalty. Aggravating
factors may result in an increased administrative penalty, up to $2
million annually.
(2) Penalty Matrix. Potential annual penalty amounts
are shown in Figure 1.
Attached Graphic
(3) Mitigating factors may include:
(A) The inability of the postsecondary educational
institution to meet the requirement of law due to:
(i) a disaster declared under Texas Government Code,
Chapter 418;
(ii) a technology failure rendering compliance impossible;
or
(iii) a severe medical impairment of a person responsible
for compliance with a requirement under Texas Education Code, Chapter
51, Subchapters E-2 or E-3.
(B) Evidence that the postsecondary educational institution
properly reported an incident to another state or federal agency with
law enforcement or regulatory authority;
(C) Any actual notice from the institution of the compliance
error;
(D) Institutional efforts to prevent compliance errors,
including the extent to which the institution provided training to
employees and/or acted after learning about the error;
(E) The explanation for the cause of the compliance
error, including a good-faith mistake; a differing, reasonable interpretation
of the law; a conflict between two provisions, or a conflict with
another legal or governmental requirement (such as Title IX regulations
or a mandatory report to the National Institutes of Health);
(F) The lack of harm to any individual; and
(G) The extent to which the institution or system complied
with Texas Education Code, Chapter 51, Subchapters E-2 and E-3.
(4) Aggravating factors shall include:
(A) Harm to an individual caused by, or directly related
to, the postsecondary educational institution's failure to comply
with Chapter 51, Subchapters E-2 and E-3;
(B) Any evidence of a postsecondary educational institution's
failure to act on a prior substantially similar complaint;
(C) Any evidence of multiple incidents of similar failures
or length of time of failure by the postsecondary institution;
(D) Any evidence that the postsecondary educational
institution or its chief executive officer knowingly provided a false
certification under Texas Education Code §51.258(a);
(E) That the postsecondary educational institution
attempted to conceal or cause others to conceal information relevant
to a determination of violation under Texas Education Code, Chapter
51, Subchapters E-2 and E-3; and
(F) The extent to which the institution or system failed
to comply with Texas Education Code, Chapter 51, Subchapters E-2 and
E-3.
(g) If the Coordinating Board assesses an administrative
penalty against a postsecondary educational institution under subsection
(f) of this section, the Coordinating Board shall provide to the institution
written notice of the Coordinating Board's reason for assessing the
penalty.
(h) A postsecondary educational institution assessed
an administrative penalty under Subsection (f) may appeal the penalty
in the manner provided by Chapter 2001, Texas Government Code. The
Coordinating Board shall enter a final decision and order as to any
penalty assessed after a contested case proceeding.
(i) A postsecondary educational institution may not
pay an administrative penalty assessed under Subsection (f) using
state-appropriated or federal money.
(j) The Coordinating Board shall deposit an administrative
penalty collected under this section to the credit of the sexual assault
program fund established under Section 420.008, Texas Government Code.
(k) The Coordinating Board shall annually submit to
the governor, the lieutenant governor, the speaker of the house of
representatives, and the standing legislature committees with primary
jurisdiction over legislation concerning sexual assault at postsecondary
educational institutions a report regarding compliance with this subchapter,
including a summary of the postsecondary education institutions found
not to be in substantial compliance as provided by this section and
any penalties assessed under the section during the calendar year
preceding the date of the report.
|