Comment. Concerning proposed §97.1055(d)(1), a representative of ACE asked if the rating assigned for the 2007 school year is "year one" for the three consecutive years and recommended that the 2007 school year rating be considered the base line year for evaluating accreditation.

Agency Response. The agency disagrees with the recommendation. 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 accountability ratings used for the 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. Concerning proposed §97.1055(d), two individuals from the Texas Institute of Education Reform stated that, under the proposed rules, the earliest a district could be closed under HB 1 is the school year following the August 2011 ratings. The commenters further stated that proposed §97.1055(a)(5), regarding the withholding of an accreditation status pending the completion of certain appeals or reviews, would delay closure and noted that the timeline would again be impacted by an appeal to SOAH of the closure decision under proposed §157.1151. The commenters stated that the legislature did not intend to delay the potential closing of a district until 2011-2012 and a school may start that school year before a decision was reached. The commenters recommended the rule be changed so that a district that has consistently failed its students could be closed the first year accreditation statuses are assigned.

Agency Response. The agency agrees and has modified the proposed rules in several respects. 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. 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(e), related to legal compliance, a representative of ACE stated that if the commissioner decides that accreditation sanctions are appropriate to address issues related to legal compliance, those sanctions should follow a similar phase in process as that for assignment of Accreditation-Warned, Accreditation-Probation, and Accreditation-Revoked, allowing two or three years for corrective actions to be effective.

Agency Response. The agency disagrees. It is inappropriate to allow continued noncompliance with legal requirements for any period of time. In some instances, corrective action may require some time to have full effect, but in many instances compliance may be achieved without delay. The agency has limited authority to allow continued noncompliance with the law. The adopted rules allow the commissioner to address legal noncompliance in accordance with state and federal requirements. 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)(2), (c)(2), and (d)(2), a representative of TCTA requested a change to add TEC, §7.056(e)(3)(J), to the list of factors that result in an assignment of Accredited-Warned status and Accredited-Probation status.

Agency Response. The agency disagrees. TEC, §39.071(b)(2)(A)(iii), limits the agency to "an item listed under TEC, §7.056(e)(3)(C) - (I), that applies to the district." The legislature specifically excluded TEC, §7.056(e)(3)(J), from consideration. The adopted rules are in alignment with the language of the statute.

Comment. Concerning proposed §97.1055(f)(3)(C), a representative of ACE stated charter schools are not taxing entities and have no property owners in their district, and requested proposed §97.1055(f)(3)(C) be revised so charters are only required to provide notice to parents.

Agency Response. The agency disagrees. Notification of parents and taxpayers is required by TEC, §39.071(d). Section 97.1055(f)(3) provides options for public notification of parents and taxpayers, including posting on its website and publishing notice in newspapers. Section 97.1055(f)(3)(C), mailing the notices by first class mail, is the final option. Should this method be chosen, the charter school can access tax rolls for contact information for taxpayers residing within its approved boundaries. 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.

§97.1055, Accreditation Status, and §97.1059, Standards for All Accreditation Sanction Determinations

Comment. Concerning proposed §97.1055 and §97.1059, a representative of ATPE suggested that the rapid timeline and severe consequences of the proposed rules call for a review of procedures for identifying Academically Unacceptable campuses for sanctions. The commenter stated that identification must focus on specific persistent deficiencies and provide timelines that allow interventions to demonstrate success.

Agency Response. The agency disagrees. To the extent that this comment is about identification procedures for ratings, those standards and procedures are adopted in rule under 19 TAC Chapter 97, Planning and Accountability, Subchapter AA, Accountability and Performance Monitoring, §97.1001, Accountability Rating System, and are not a part of this adoption. To the extent that this comment is about selecting districts and campuses for accreditation sanctions, the new rules adopted in 19 TAC Chapter 97, Subchapter EE, focus on the factors suggested by the commenter, among others. See §97.1059(b) and §97.1057.

§97.1057, Accreditation Sanctions

Comment. Concerning proposed §97.1057, the superintendent of a school stated proposed §97.1057 provides significant power to the commissioner and that the proposed rules should provide more direction regarding what the commissioner may do in any and all circumstances.

Agency Response. The agency disagrees. The language of HB 1, 79th Texas Legislature, Third Called Session, as codified in TEC, Chapter 39, Subchapter G, Accreditation Sanctions, provides broad discretion to the commissioner in the determination of sanctions. The adopted rules provide a framework for decision-making by the commissioner but are not intended to limit the discretion of the commissioner to fashion appropriate interventions and sanctions in the interest of achieving the purposes stated in §97.1053.

Comment. Concerning proposed §97.1057, a superintendent of a school asked whether the accreditation system would replace any other accountability system.

Agency Response. No. The system for assigning accreditation statuses is established by the provisions of HB 1, 79th Texas Legislature, Third Called Session, but this legislation does not amend any other accountability provisions in state statute.

Comment. Concerning proposed §97.1057(d), a member of a board of trustees commented that the rule states that the commissioner may impose "on the district" any other sanction and asked for clarification regarding whether the commissioner can impose sanctions on a campus as well as a district.

Agency Response. The agency agrees. In response to public comment, §97.1057(d) was modified to clarify that the commissioner can impose sanctions on a campus as well as a district.

Comment. Concerning proposed §97.1057(e)(3), a member of a board of trustees requested clarification of whether the TEA could impose a monitor, require technical assistance, or otherwise impose an accreditation sanction in response to a severe problem in student attendance accounting unless it finds deliberate falsification in the attendance data. The commenter stated that this is a change in agency policy.

Agency Response. The agency agrees. The commissioner is directed by statute to impose accreditation sanctions as necessary to achieve the purposes listed in §97.1053. It is inconsistent with this statute to adopt a rule that would limit appropriate corrective action to those rare cases in which intentional misconduct has been identified as causing the accreditation deficiency. This was not the intent of the proposed rule. In response to public comment, §97.1057(e)(3) was modified to clarify that the commissioner can impose sanctions as necessary to achieve the purposes listed in §97.1053.

Comment. Concerning proposed §97.1057(e)(3), a representative of ACE requested that the agency clarify that "false" information relates to incorrect information submitted in bad faith or with the intent to mislead.

Agency Response. The agency disagrees. The commissioner is directed by statute to impose accreditation sanctions as necessary to achieve the purposes listed in §97.1053. It is inconsistent with this statute to adopt a rule that would limit appropriate corrective action to those rare cases in which intentional misconduct has been identified as causing the accreditation deficiency. This was not the intent of the proposed rule. In response to public comment, §97.1057(e)(3) was modified to clarify that the commissioner can impose sanctions as necessary to achieve the purposes listed in §97.1053.

§97.1059, Standards for All Accreditation Sanction Determinations

Comment. Concerning proposed §97.1059(b)(1)(A), two individuals from the Texas Institute for Education Reform stated the rule implementation should be underway and the timing of Academically Unacceptable district and campus statuses should be implemented in the "current year" as the law requires.

Agency Response. The agency agrees. Even while it has been working on formal rules, the agency has already implemented many of the provisions enacted in HB 1. An accreditation status will be issued to each school district for the first time in 2007, but in other respects the implementation of the statute began shortly after passage of the bill.

§97.1059, Standards for All Accreditation Sanction Determinations, and §97.1063, Campus Intervention Team; Reconstitution

Comment. Concerning proposed §97.1059 and §97.1063(c), a representative of ATPE suggested that sanctioning a school and requiring reconstitution because the school failed to meet different standards in different content areas over two years does not serve the purpose of encouraging schools to improve performance and address specific deficiencies.

Agency Response. The agency disagrees. To the extent that this comment is about identification procedures for ratings, those standards and procedures are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1001, Accountability Rating System, and is not part of this adoption. To the extent that this comment is about selecting districts and campuses for accreditation sanctions, the new rules adopted in 19 TAC Chapter 97, Subchapter EE, do indeed serve the purpose of encouraging schools to improve performance and addressing specific deficiencies. See §97.1059(b) and §97.1057. The commissioner will implement sanctions to achieve the purposes identified in §97.1053.

Comment. Concerning proposed §97.1059 and §97.1063(c), a representative of ATPE stated that the Accountability Manual acknowledges the primary concern of persistent failure in its treatment of exceptions, and the federal adequate yearly progress calculations adhere to the "same measure" standard. The commenter stated that aligning the two systems would provide greater consistency and allow educators and communities adequate opportunities and sufficient flexibility to address specific accountability measures before accelerating implementation of sanctions.

Agency Response. The agency disagrees. To the extent that this comment is about identification procedures for ratings or adequate yearly progress, those standards and procedures are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1001, Accountability Rating System, and §97.1004, Adequate Yearly Progress, and are not a part of this adoption. To the extent that this comment is about selecting districts and campuses for accreditation sanctions, the new rules adopted in 19 TAC Chapter 97, Subchapter EE, provide adequate opportunities and sufficient flexibility to address specific accountability measures before accelerating implementation of sanctions. See §97.1059(b) and §97.1057. The commissioner will implement sanctions to achieve the purposes identified in §97.1053. The State of Texas has adopted and is in full compliance with the accountability provisions required by federal law; however, the agency has an independent obligation to implement rules in compliance with HB 1, enacted by the Texas Legislature. Where feasible, the two systems may be harmonized, but they are sufficiently distinct that a single set of rules cannot be adopted that fully implements the spirit and intent of both legislative bodies.

§97.1061, Technical Assistance Team Campuses

Comment. Concerning proposed §97.1061, a representative of ACE requested that language be revised for charters to allow participation from other sources because charter schools are not mandated to have site-based decision-making committees.

Agency Response. The agency agrees in part and disagrees in part. While the agency agrees that charter schools are not required to have site-based decision-making committees, language in subsection (d) specifies the minimum foundation for members but does not preclude participation from other sources.

Comment. Concerning proposed §97.1061, an individual commented on fraudulent activities on a campus and suggested types of members for the technical assistance teams.

Agency Response. The agency disagrees. Under TEC, §39.1322(a), Technical Assistance Team and Campus Intervention, technical assistance teams are assigned due to student performance concerns and do not investigate fraud. The comment does not apply to this rule.

Comment. An individual who serves as an external member of five campus intervention teams (CIT) commented that the proposed §97.1061 states that the commissioner will annually assign a technical assistance team (TAT) if that campus would be rated Academically Unacceptable by using the accountability standards for the subsequent year. The commenter noted that TEC, §39.1322, states that the commissioner shall appoint a CIT if a campus is rated Academically Unacceptable, and under TEC, §39.1323(e), the CIT will continue to serve until the campus has been rated Academically Acceptable for a two-year period. The commenter suggested that a campus assigned a CIT could also have a TAT assigned under proposed new §97.1061(a) and suggested this would be confusing and needlessly duplicative. The commenter requested this section of the rules be clarified.

Agency Response. The agency agrees. In response to public comment, §97.1061 was modified by adding subsection (f) to clarify that a CIT will serve the required term, and a TAT will not be assigned under certain circumstances in which a CIT continues to play a role on the campus. The campus would still be included on the list of campuses that require a TAT, but the CIT would meet this requirement.

Comment. Concerning proposed §97.1061(c), a representative of TCTA expressed concern that members of the campus and district planning committees would be members of the TAT; requested other alternatives for the additional member of the TAT, including possibly personnel from a regional education service center; and suggested deleting the provision of the proposed rules that campus and district planning team members be included.

Agency Response. The agency disagrees. Campuses that are assigned a TAT are rated Academically Acceptable. The proposed rules provide for the involvement of key campus and district personnel in the improvement planning process and require the inclusion of a member not assigned to the campus who has the knowledge and ability to provide technical assistance in the problem area(s). The adopted rules do not preclude a district or campus adding other members to the TAT.

§97.1063, Campus Intervention Team; Reconstitution

Comment. Concerning proposed §97.1063, an administrator stated that the rule allows the commissioner to assign members of the CIT if the district recommendations are rejected and also to order reconstitution if the school district does not implement the school improvement plan. The commenter recommended that the rule allow the district to appeal the commissioner's decision or allow for the submission of a second recommendation of CIT members. The commenter recommended a minimum timeline that clearly states how long a school has to develop the school improvement plan before the commissioner can call for the reconstitution of the campus. The commenter requested clarification of the referenced two-year period that governs the removal of a principal in an Academically Unacceptable school.