Agency Response. The agency disagrees. Under §97.1055(b)(2)(B), (c)(2)(B), and (d)(2)(B), the agency must make findings after a special accreditation or other investigation that the district's programs for special populations are ineffective. No accreditation sanction may be imposed under these rules based exclusively on data analyzed through PBMAS.

Comment. A representative of TSTA stated that there is an unintended inconsistency in the use of the PEIMS as the performance evaluation tool for proposed §97.1055(b)(2)(A)(ii) and the use of the PBMAS in proposed §97.1071(a).

Agency Response. The agency disagrees. The use of the PEIMS in §97.1055(b)(2)(A)(ii) and the use of data for performance-based monitoring (PBM) staging in §97.1071(a) are not contradictory. The first is intended to meet the requirements of TEC, §39.071(b)(2)(A)(i). The second is intended to meet the requirements of TEC, §39.071(b)(2)(B) and (C). These are entirely different functions. Section 97.1055(b)(2)(A)(ii) holds the district accountable for the accuracy of its data reporting. Section 97.1071(a) holds the district accountable for the effectiveness of its programs for special populations and career and technical education.

Comment. Concerning proposed §97.1055(b)(2)(A), a representative of TCTA stated subparagraph (A) does not mention some items required in statutory language such as special populations and career and technology programs, and maintained that the agency is exercising its statutory authority to add or subtract factors from the statutory list. The commenter requested that the agency expand on the factor regarding "any applicable requirements under TEC, Section 7.056(e)(3)(C) - (I)" and add TEC, §7.056(e)(3)(J), to the list of factors that result in an assignment of Accredited-Warned status. Furthermore the organization asked the proposed language in §97.1055(b)(2)(A)(v) be changed as follows: "any applicable requirement under TEC, Section 7.056(e)(3)(C-I, J)."

Agency Response. The agency disagrees. The reference to TEC, §7.056(e)(3)(C) - (I), in the rule is in alignment with the statute. Additionally, the statute references the effectiveness of special populations at TEC, §39.071(b)(2)(B), and the effectiveness of career and technical programs at TEC, §39.071(b)(2)(C). TEC, §39.071(b)(2)(A)(iii), limits the agency to "an item listed under Sections 7.056(e)(3)(C) - (I) that applies to the district." The legislature specifically excluded TEC, §7.056(e)(3)(J), from consideration.

Comment. Concerning proposed §97.1055(b)(1), a representative of ACE asked if the rating assigned for the 2007 school year is "year one" for the two consecutive years discussed and expressed concern that former year ratings will be used for accreditation determinations. The commenter stated that HB 1 does not mandate an accreditation status based on a retroactive application of accountability or financial ratings and requested that the 2007 school year rating be considered the base line year for evaluating new accreditation standards.

Agency Response. The agency disagrees. The rating assigned a district in August 2006 counts toward the consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. In addition, although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are a relevant consideration. See §97.1053(b). For example, under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may withhold the release of an accreditation status pending investigation. This may be especially important in transitioning to the new system. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b)(1)(A), two individuals from the Texas Institute for Education Reform stated that the proposed rule allows a district to receive Academically Unacceptable ratings for two more consecutive years after 2007 before being awarded an Accreditation-Warned status. The commenters requested the rule be changed to warn the district the first year that accreditation statuses are assigned.

Agency Response. The agency agrees and has modified the proposed rules in several respects. In response to public comments, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. Ratings assigned a district in August 2006 count toward the two consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are expressly made a relevant consideration under §97.1053(b). Under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to (or in lieu of) the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may also withhold the release of an accreditation status pending investigation.

Comment. Concerning proposed §97.1055(b)(1)(A) and (B), an individual asked that financial and academic performance be separately considered when determining an accreditation status.

Agency Response. The agency disagrees. TEC, §39.071(b)(1), requires evaluation of both the academic and the financial performance of the district in determination of its accreditation status.

Comment. Concerning proposed §97.1055(b)(2), related to the assignment of Accredited-Warned status, a representative of ACE suggested "shall be assigned" should be changed to "may be assigned." The commenter stated mandatory language for consideration of an accreditation status relates to financial and academic performance, and consideration of the list of items in proposed §97.1055(c)(2)(A) and (B) is optional. The commenter requested that the rules be written to reflect that these are options that a commissioner may consider. Should the commissioner decide that accreditation sanctions are appropriate under this section the commenter requested that a phase-in process be followed for Accreditation-Warned, Accreditation-Probation, and Accreditation-Revoked statuses.

Agency Response. The agency disagrees. The adopted rules provide notice that the commissioner intends to exercise authority to consider other issues identified in statute, and a phased timeline is built into the rules. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b)(3), a representative of ACE requested "shall be assigned" be changed to "may be assigned," stating that the only mandatory language for accreditation rating relates to financial and academic performance. The commenter expressed concern with the list of items in proposed §97.1055(b)(2)(A) and (B) and requested the rule be written to allow discretionary consideration by the commissioner.

Agency Response. The agency disagrees. The adopted rule provides notice that the commissioner intends to exercise authority to consider other issues identified in statute. These rules provide a framework for commissioner consideration when determining sanctions and the wording of §97.1055(b)(3) includes language stating ". . . shall be assigned Accredited-Warned status if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071." However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b) - (d), a board of trustees representative questioned the reasoning behind an accreditation status decision being based solely on the number of years a rating has been assigned and suggested the use of other qualitative factors, including the margin by which the district missed the criterion, the number and repetitive nature of the standards not met, the continuing pattern of low performance, and whether the district is improving relative to the standards. The commenter suggested that subsections (b) - (d) be deleted and replaced with other factors that accurately reflect the differences between districts that do and do not show promise of success in the future.

Agency Response. The agency disagrees. The purpose of the adopted rule is to implement the required assignment of accreditation statuses in accordance with state statutes. Other issues regarding qualitative factors addressed in the comment are related to the accountability rating system, which is not addressed in the adoption of 19 TAC Chapter 97, Subchapter EE.

Comment. Concerning proposed §97.1055(c)(1), a representative of ACE is unclear whether the rating assigned for the 2007 school year is "year one" for three consecutive years or whether the agency is applying former year ratings. Also the commenter stated that accreditation determination is reasonable if the 2007 school year rating is the base line year for evaluating accreditation.

Agency Response. The agency offers the following clarification. The rating assigned a district in August 2006 counts toward the consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). As initially proposed, the rules package reflected a start date of 2007 as it relates to the initial year of ratings to be considered in the assignment of an accreditation status to a district; however, in response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for determination of accreditation status from 2007 to 2006. This change is in alignment with the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. A representative of the Texas Association of Business stated his concern that the proposed rules would not consider accountability ratings issued before 2007 and requested the agency consider performance in past school years when evaluating a school district's performance, maintaining that this would create a sense of urgency to improve rather than to procrastinate. The commenter suggested TEA reconsider revisions for 19 TAC Chapter 97, Subchapter EE.

Agency Response. The agency agrees. In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of accountability ratings used for determination of accreditation status from 2007 to 2006. This reflects the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006.

Comment. A CEO and founder of a charter school asked why the State Board of Education (SBOE) charter drop out recovery high schools are required to use the TAKS test at the socially promoted grade at the same grade level on the student's transcript if a student is functioning below that grade level. The commenter requested that the eighth grade TAKS release test be administered to every student entering a charter drop out recovery high school.

Agency Response. The agency cannot address this comment. The comment addresses topics that are not part of this adoption. The SBOE has not adopted the designation referenced by the commenter, but in 1997 the legislature did enact TEC, §12.1011. This provision created a type of charter school promising that at least 75% of its student population would be at risk of dropping out of school as defined by TEC, §29.081. The legislature abolished this distinction in 2001, but some charter schools operating now were granted under TEC, §12.1011. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. A CEO and founder of a charter school asked why charter schools are paid less than other public schools per average daily attendance, why schools chartered to recover dropouts are not given additional resources, and what plans the agency has to create facility funding for all public charter schools and special funding for the SBOE schools authorized to recover school dropouts.

Agency Response. The agency cannot address this comment. The comment addresses topics that are not part of this adoption. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(d)(1)(D), a representative of ACE stated that the proposed rule revoking a school's accreditation on the basis of three years of financial or academic performance, or a combination of the two, does not provide a fair opportunity to correct a problem and proposed the use of a "growth model." The commenter stated that an accreditation system should provide consideration for schools serving a majority of at-risk students, that academic and financial accountability systems are quite different and should not be considered together, and that proposed §97.1055(d)(1)(D), related to the assignment of Accredited-Warned status, is harsh because it does not provide adequate time for improvement. The commenter stated that unacceptable ratings for two separate categories in the same year do not mean a school has a pattern of unacceptability in either of the standards.

Agency Response. The agency disagrees. The purpose of the adopted rule is to implement the accreditation process required under TEC, §39.071, which mandates consideration of both academic and financial accountability ratings. The agency finds that, because the timeline for determination of accreditation status requires multiple years of unacceptable performance, it provides sufficient time for districts to exhibit improvement, and the timeline is appropriate within the context of the intent of HB 1, 79th Texas Legislature, Third Called Session. The other issues raised by the commenter are related to the determination of accountability ratings, which these rules do not address. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(c)(1), related to the determination of Accredited-Probation status, a representative of ACE stated that the three-year approach in proposed §97.1055(c)(1)(A) and (B) allows schools to improve or demonstrate that the first two years of low ratings were not an aberration. The commenter further stated that basing a school's Accredited-Probation status on two years of financial or academic performance as is referenced in proposed §97.1055(c)(1)(C) or a combination of the two as is referenced in proposed §97.1055(c)(1)(D) is not fair because there is a limited opportunity to correct a problem if two separate categories occur during the same years and may not mean a school has a pattern of unacceptability in either of the standards.

Agency Response. The agency agrees in part and disagrees in part. The agency agrees that the three-year approach referenced in §97.1055(c)(1)(A) and (B) provides sufficient time for improvement before the assignment of an Accredited-Probation status. However, the agency finds that the timeline for accreditation status determinations under §97.1055(c)(1)(C) and (D) is appropriate within the context of the intent of HB 1, 79th Texas Legislature, Third Called Session. The agency has considered the fact that the accumulation of several unrelated performance failures does not demonstrate the persistence of a particular performance weakness over time. However, the accumulation of several unrelated performance failures may demonstrate a management weakness that is an appropriate consideration when determining the accreditation status. For example, a district with severe academic deficits in student performance that also demonstrates severe financial deficits may require a lowered accreditation status. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(c), two individuals from the Texas Institute for Education Reform stated the district may have Academically Unacceptable ratings for three consecutive years after 2007 before probation, noting that HB 1 was enacted in 2006. The commenters stated probation may not occur until the August 2010 ratings and under proposed §97.1055(a)(5), ratings appeals will delay the probationary status until January 2011. The commenters stated that this is not what the legislature intended and requested the rule be changed to assign probation status to districts in the first year accreditation statuses are assigned.

Agency Response. The agency agrees in part and has modified the proposed rules in several respects. In response to public comments, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. Ratings assigned a district in August 2006 count toward the two consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are expressly made a relevant consideration under §97.1053(b). Under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to (or in lieu of) the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish Cont'd...