Comment. The TSA commented that, concerning §97.1055(a)(7), the conditions that would lead the commissioner to lower a district's accreditation status based on the performance of one or more campuses in the district are not explicitly established in rule and suggested that they should be established so that people will know what to expect. The TSA further questioned whether the TEA will limit actions of this kind to the current practice of limiting district ratings to Acceptable if there are any Academically Unacceptable campuses within a district or whether implementation will go beyond current practice.

Agency Response. The agency disagrees that it is appropriate in this rule adoption to attempt to describe every potential situation in which the performance of one or more campuses within a district may affect a district's accreditation status. This campus performance provision was explicitly added by HB 3 at TEC, §39.052(d), and the rules adopt the language of the statute. The statute does not limit the ability of the agency to lower a district's accreditation status to the decision-making frameworks currently reflected in district accountability rating procedures. However, the agency previously has adopted rules that establish a process for district appeal and review of any proposal put forth by the agency to lower a district's accreditation status based on campus performance. Specifically, §97.1035(a)-(b) and §97.1033(b), allow for a district to request an informal review of the agency's potential finding in this regard. Also, if, after an informal review, it is determined that the district's accreditation status would be lowered based on campus performance, a second opportunity for review then would be afforded through the rules adopted at §97.1037(a)(2) related to a record review.

Comment. The TSA commented that, by referencing TEC, §39.057, in §97.1055(b)(2)(B), the proposed rule establishes TEA's ability in 2010-2011 to issue an Accredited-Warned status to districts based on the four new measures created by HB 3 at TEC, §39.057(a)(9)-(12), which the TSA characterized as being for inclusion in the Performance-Based Monitoring Analysis System (PBMAS). The TSA further stated that no one has seen how these measures will be operationally defined and that current performance on such measures is uncertain. The TSA questioned whether the agency can assure districts that it will continue its "report-report-use" approach to phasing in new measures so that there is adequate opportunity to identify and address issues before consequences are attached to results.

Agency Response. The agency provides the following clarification. The new circumstances under which a special accreditation investigation may be ordered under TEC, §39.057(a)(9)-(12), are included in a subchapter of statute, specifically TEC, Chapter 39, Subchapter C, for which amendments apply beginning with the 2011-2012 school year. Therefore, a district's 2010-2011 accreditation status will not be impacted by the addition of these items to the statute. Furthermore, it cannot be assumed that, and has not been determined whether, any or all of the newly added references in TEC, §39.057(a)(9)-(12), will be incorporated into the PBMAS or other similar systems in the future. However, to the extent applicable and appropriate, agency systems will continue to include practices that provide an adequate opportunity for districts to preview accountability indicator results.

Comment. The TSA commented that, under §97.1055(b)(4), and in several other sections of rule, language is explicitly folded in from HB 3 regarding the lowering of an accreditation status based on certain district responses to financial solvency reviews that show risk of insolvency and suggested that it would seem simpler to incorporate the financial solvency reviews into the School Financial Integrity Rating System of Texas (School FIRST) and let the existing accreditation-related provisions associated with School FIRST drive any consequences for districts.

Agency Response. The agency agrees in part and disagrees in part. The agency currently is developing the process related to financial solvency reviews under TEC, §39.0822, and will consider whether, over time, certain aspects of the review can be folded into the School FIRST analysis. However, TEC, §39.0823, establishes certain intervention and sanction requirements related to the solvency review that do not align directly to the solvency finding or any related rating but, rather, to the district's actions regarding the financial plan resulting from the review. Therefore, the agency will retain language in §97.1055 to address the specific requirements of statute regarding the lowering of an accreditation status in response to concerns related to an identified district's financial plan under TEC, §39.0823.

Comment. The TSA commented that, under §97.1055(f)(3)(B)-(C), districts are required to bear the considerable expense associated with the required public notice provisions when a district's accreditation status is lowered. The TSA further stated that the notices must use the format and language determined by the commissioner but that such language often is very formal, not easily understood by parents, and not prepared in multiple languages other than English.

Agency Response. The agency agrees in part and disagrees in part. The agency agrees that certain costs, and, in some cases, considerable costs, may be incurred when public notification requirements are implemented. TEC, §39.052(e), requires that districts notify the parents of students enrolled in the district and property owners in the district of the district's accreditation status and the implications of that status. The Texas Legislature has determined that the public's right to know is a compelling concern in the serious circumstance in which a district's accreditation status has been lowered. The agency has provided flexibility in the past by allowing districts to select between the options of posting information in a newspaper or mailing notification to its parents and property owners. Additionally, in response to public comment, the agency has added language at 19 TAC §97.1055(f)(3)(D) and (4)(D) to provide an additional, less costly, method for districts to meet the notification requirements related to a lowered accreditation status. In regard to the language of the notice, TEC, §39.052(e), requires the notice provided to parents and taxpayers to include information on both the status assigned to the district and the implications of the status. While the notice template produced by the agency provides significant discretion to districts in explaining the district's status, the agency has determined that certain minimum and consistent content must be included to meet the requirements and intent of the statute.

§97.1057, Accreditation Interventions and Sanctions; Lowered Accreditation Status or Rating

Comment. The TSA commented that the isolated statement in proposed §97.1057(f) that allows the commissioner to impose sanctions based on results of resource allocation practices, by considering ratings history and broad purposes of accountability, seems rather broad.

Agency Response. The agency disagrees. The rule and its reference to the factors specified in §97.1053 provide a framework for decision making regarding sanctions related to resource allocation practices. Furthermore, the reference to §97.1053 establishes a framework that is consistent with other sanction decisions addressed in Chapter 97, Subchapter EE. The language of this section aligns with the agency's goal of maintaining administrative flexibility in lieu of the inflexibility of rules. However, should the agency determine that refinements to the standards are necessary based upon accumulated experience in administering the new statutory requirements, a proposal to revise the rule will be developed.

§97.1059, Standards for All Accreditation Sanction Determinations

Comment. The TSA commented that, in §97.1059(e) and elsewhere, the term "lack of improvement" is referenced but not defined and questioned whether this means that continued unacceptable ratings will result in a lowered accreditation status and/or increments to sanctions, even though improvement may have been evident on a majority of applicable accountability indicator measures. The TSA further questioned whether, if improvement is evident on a majority of applicable indicators, there will be flexibility to stay at "Year 1 sanctions" for a second year and stated that this would be preferred practice because it "embraces the philosophy that the system drive continuous improvement, recognizes the need for stability in leadership to sustain improvement, and respects the efforts of teachers and students to improve."

Agency Response. The agency provides the following clarification. The language in §97.1059(e) aligns with the language of TEC, §39.108, and was added to address the requirements of statute. In regard to whether continued unacceptable ratings will result in a lowered accreditation status and/or increments to sanctions, it is the agency's interpretation that, in many cases, the statute provides a defined framework that requires certain actions to be taken when a district or campus continues to earn an unacceptable rating, as reflected in a number of statutory requirements regarding campus-level interventions and sanctions. In these and similar circumstances, the rating result itself drives the intervention requirements. Additionally, the agency does not interpret TEC, §39.108, which addresses primarily district, not campus, requirements, to provide the flexibility for a campus to implement year one sanctions for multiple years under circumstances in which the campus earns subsequent unacceptable ratings. Therefore, continued unacceptable ratings generally will result in a lowered accreditation status and/or incremented sanctions, in alignment with statute and rule.

However, it is appropriate to note that the accountability rating system itself provides a number of additional features, such as the required improvement calculation and the Texas Projection Measure, that acknowledge improved performance in the assignment of a rating. This, in and of itself, provides an opportunity for districts and campuses to avoid lowered statuses or increased interventions when improved performance is demonstrated. However, in addition, in those areas in which the statute provides discretion to the commissioner, it has been the agency's practice, and continues to be the agency's intent, to conduct an assessment of performance, and acknowledge improved performance, when intervention and sanction determinations are made.

§97.1061, Interventions and Sanctions for Campuses

Comment. The TSA commented that the rules are silent on whether or not the leader or external members of a school community partnership team (SCPT) would have to be compensated by the district for their time and stated that this is a concern, particularly since site-based decision making teams generally are not compensated for their time.

Agency Response. The agency agrees with the basis of the expressed concern but notes that TEC, §39.110, does not list SCPTs as entities that must be paid by districts for their services. Therefore, the agency interprets the statute to indicate that SCPTs will not be compensated by districts.

§97.1061, Interventions and Sanctions for Campuses, and §97.1063, Campus Intervention Team

Comment. Concerning proposed §97.1061 and §97.1063, a representative of Moak, Casey and Associates requested clarification regarding whether the phrase, "below any standard under Texas Education Code (TEC), §39.054(e)" in these sections would require a campus that earned an acceptable rating through the exceptions provision, or the 85% provision as referenced in HB 3, to be assigned a campus intervention team.

Agency Response. The agency provides the following clarification. The references in §97.1061 and §97.1063 to "below any standard under TEC, §39.054(e)" were added to address HB 3 language as reflected in TEC, §§39.103, 39.105, and 39.106. The assignment of a campus intervention team would not be required for a campus determined to be acceptable, even if the campus achieved that rating through the exceptions provision.

Specifically, TEC, §39.054(e), references an annual performance review using indicators adopted under TEC, §39.053(c), and required improvement under TEC, §39.053(e). TEC, §39.054(c), also acknowledges the link to the indicators adopted under TEC, §39.053(c)(1) and (2), regarding assessment results and dropout rates, and required improvement under TEC, §39.053(e). TEC §39.054(d), regarding the "exceptions" provision, specifically ties back to the evaluation under TEC, §39.054(c), and states that the commissioner may use exceptions to assign acceptable performance ratings. Therefore, TEC, §39.054(c) and (d), supplement and modify TEC, §39.054(e), and, as such, will be taken into consideration by the agency in the annual performance review conducted under TEC, §39.054(e), as determined by the commissioner.

Comment. The TSA commented that, under the requirements of §97.1063(i), districts generally are required to continue to pay for and/or engage campus intervention teams to work with a school until the school has achieved an acceptable rating for a two-year period and further stated that, under the requirements of proposed §97.1061(e), in the case of SCPTs, the engagement may extend indefinitely. The TSA stated that this represents significant expense, which could be compounded if the commissioner orders a district or campus to purchase professional services.

Agency Response. The agency agrees in part and disagrees in part. The agency agrees that districts may incur significant costs with the placement of campus intervention teams and additional costs should professional services be ordered. However, in specific response to the comment, the requirement that campus intervention teams generally remain assigned to a campus until that campus achieves an acceptable rating for a two-year period is reflected in statute at TEC, §39.106(e)(1). The agency disagrees that the term of an SCPT will create significant expense since SCPTs are not included in the list of entities under TEC, §39.110, that must be paid by districts for their services.

§97.1063, Campus Intervention Team

Comment. The TSA commented that, under the requirements of §97.1063(a)(2), districts and campuses seem to lose all flexibility in the selection of campus intervention teams when a campus is rated unacceptable for two or more consecutive years and stated that this seems unduly restrictive.

Agency Response. The agency disagrees. The provision at §97.1063(a)(2) acknowledges that the responsibilities of campus intervention teams change significantly when a campus is rated unacceptable for two or more consecutive years. Specifically, the requirement under TEC, §39.107(b), that a campus intervention team decide which educators may be retained at the campus creates a circumstance under which the composition of the team is critical. The agency and the commissioner, under the authority of TEC, §39.106(a), have reserved the right to revise the composition of the campus intervention team under these circumstances as necessary to promote appropriate and consistent decision making. However, the language at §97.1063(a)(2) does not require that the composition of an existing campus intervention team be changed in all circumstances but acknowledges that, in some instances, membership changes may be necessary to accomplish statutory requirements.

Comment. The TSA commented that there seems to be inconsistency in the proposed rule revisions with regard to the party that must submit required school improvement plans to the agency and noted that §97.1063(e) requires a campus intervention team to assist a campus in submitting its plan to the commissioner for approval, while §97.1063(j)(4) requires the local board of trustees to submit the plan to the commissioner. The TSA stated that previous practice has been to require campus intervention teams to prepare focused intervention plans that were to be submitted to the agency via the secure, electronic Intervention Stage and Activity Manager portal and further stated that, for that reason, an authorized central office user typically has to submit the plans on behalf of the campus intervention team member and/or campus. The TSA suggested that, in an effort to limit the number of users with access to the electronic system, it would be advisable for the rule to reflect this reality, rather than having either the trustees or the campuses charged with submitting the plans.

Agency Response. The agency disagrees that it is appropriate to revise the proposed rule language since the language is aligned with the statute. In specific regard to §97.1063(e), TEC, §39.106(d), states, "The campus intervention team shall assist the campus in submitting the targeted improvement plan to the commissioner for approval." Concerning §97.1063(j)(4), TEC, §39.106(e-1)(4), states, in part, "...the board...shall submit the targeted improvement plan or any updated plan to the commissioner for approval." The agency does not interpret these requirements to be conflicting but acknowledges that the statute does not prescribe specific steps related to plan submission. Therefore, the agency will take the expressed concerns under advisement as it establishes procedures for implementation of the statutory requirements related to plan submission.

Comment: The Texas Classroom Teachers Association (TCTA) questioned the terminology used in §97.1063(h)(3) as being contrary to statute and requested that the language of §97.1063(h)(3) be revised to read, "require the district to develop a teacher recruitment and retention plan to address the qualifications and retention of the teachers at the campus."

Agency Response. The agency agrees in part and disagrees in part. While the agency agrees that the language of TEC, §39.106(d-3)(3), states that, "In executing the targeted improvement plan, the campus intervention team shall, if appropriate: ...require the district to develop a teacher recruitment and retention plan to address the qualifications and retention of the teachers at the campus," the agency disagrees that the language in §97.1063(h)(3) is contrary to statute. Given that the statute specifically provides that the campus intervention team shall take certain actions, if appropriate, it is clear that the development of a teacher recruitment and retention plan is not required in all cases. The language in §97.1063(h)(3) states that the campus intervention team will request that a plan be developed, as appropriate, and further states that the campus intervention team may recommend, and, upon the recommendation, the commissioner may require, that a district develop such a plan. This language acknowledges circumstances under which a single district may have multiple campus intervention teams assigned to multiple unacceptable campuses. Given that the recruitment and retention plan in question has district-level implications, the language of the rule allows for the commissioner and the agency Cont'd...