The Texas Education Agency (TEA) adopts amendments to §§97.1051, 97.1053, 97.1055, 97.1057, 97.1059, 97.1063, 97.1065, 97.1067, 97.1069, 97.1071, and 97.1073; the repeal of §97.1061; and new §97.1061 and §97.1064, concerning accreditation. The amendment to §97.1051 and §97.1055 are adopted with changes to the proposed text as published in the April 23, 2010, issue of the Texas Register (35 TexReg 3160). The amendments to §§97.1053, 97.1057, 97.1059, 97.1063, 97.1065, 97.1067, 97.1069, 97.1071, and 97.1073; the repeal of §97.1061; and new §97.1061 and §97.1064 are adopted without changes to the proposed text as published in the April 23, 2010, issue of the Texas Register (35 TexReg 3160) and will not be republished. The sections address provisions relating to accreditation status, standards, and sanctions. The adopted rule actions implement the requirements of the Texas Education Code (TEC), Chapter 39, Public School System Accountability, as amended by House Bill (HB) 3, 81st Texas Legislature, Regular Session, 2009, which requires the commissioner by rule to establish procedures and adopt guidelines for the administration of accountability and performance monitoring as well as accreditation statuses and sanctions for public school districts and open-enrollment charter schools.

HB 3, 81st Texas Legislature, Regular Session, 2009, amended, reorganized, and renumbered the TEC, Chapter 39, Public School System Accountability. The adopted revisions to 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, modify the rules to ensure compliance with HB 3, as follows.

The adopted amendment to 19 TAC §97.1051, Definitions, changes the definition of "campus closure" to remove references to "repurposing," which is now defined in statute and in the adopted amendment to 19 TAC §97.1065(c). In addition, a statutory reference is updated in alignment with HB 3.

In response to public comment, the proposed amendment to 19 TAC §97.1051(6) regarding the definition of "insufficient performance" is deleted, leaving those matters to be governed by statute.

The adopted amendment to 19 TAC §97.1053, Purpose, updates statutory references in alignment with HB 3.

The adopted amendment to 19 TAC §97.1055, Accreditation Status, updates statutory references and clarifies the process for assigning accreditation statuses during the period of transition to new HB 3 requirements. The adopted amendment adds new language regarding when an accreditation status may be raised or lowered based on the performance of the district or one or more campuses in the district. The adopted amendment also states how the statutory requirements related to a financial solvency review and projected deficit affect accreditation statuses. In addition, the adopted amendment incorporates current agency procedures for completing the asset-to-liability calculation for the purposes of charter financial accountability.

In response to public comment, language at 19 TAC §97.1055(f)(3)(D) and (4)(D) is added, providing an additional method for districts to meet the notification requirements related to a lowered accreditation status.

The adopted amendment to 19 TAC §97.1057, Accreditation Sanctions, updates statutory references and adds information regarding the factors the commissioner shall consider in determining whether to impose a particular sanction based on resource allocation practices. In addition, the section title is changed.

The adopted amendment to 19 TAC §97.1059, Standards for All Accreditation Sanction Determinations, updates statutory references and adds language to reflect statutory requirements regarding the commissioner's obligation to review the performance of a district. Specifically, the commissioner must review at least annually the performance of a district for which the accreditation status has been lowered due to insufficient student performance. The adopted amendment also requires the commissioner to increase sanctions if a lack of improvement is shown unless there is good cause not to do so.

Section 97.1061, Technical Assistance Team Campuses, is repealed. This repeal is necessary because HB 3 removed references to technical assistance team campuses and replaced them with the requirements reflected in adopted new 19 TAC §97.1061.

Adopted new 19 TAC §97.1061, Interventions and Sanctions for Campuses, adds language to align with new statutory requirements related to campuses that satisfy current performance standards under TEC, §39.054(e), but that would not satisfy performance standards if the standards to be used for the following school year were applied to the current school year. The adopted new section also adds language to align with new statutory requirements for intervening with and sanctioning campuses with performance below any standard under TEC, §39.054(e), including requirements relating to a hearing and a school community partnership team (SCPT).

Additionally, the adopted new section adds new statutory language that allows the commissioner to accept certain interventions that a campus has implemented under federal accountability requirements in lieu of required state measures if the intervention measures are substantially similar.

The adopted amendment to 19 TAC §97.1063, Campus Intervention Team; Reconstitution, implements the provisions of HB 3 related to campuses below any standard under TEC, §39.054(e), and the assignment of a campus intervention team (CIT) to those campuses. The adopted amendment defines the duties and responsibilities of the CIT, including responsibilities to conduct a targeted on-site needs assessment relevant to the areas of insufficient performance or, if the commissioner determines necessary, a comprehensive on-site needs assessment. The adopted amendment also outlines requirements related to the development and submission of a school improvement plan (SIP) by a campus and establishes timelines for how long the CIT will be assigned to a campus. The adopted amendment outlines requirements related to the involvement of the board of trustees of a school district in conducting a hearing to notify the public of the insufficient performance of one or more campuses within the district, the improvements expected by the agency for the campus(es), and the intervention measures or sanctions that may be imposed under the subchapter if performance does not improve. The adopted amendment also details requirements related to public posting of the SIP and, as appropriate, modification of the SIP in response to public comment. The adopted amendment further notes that the commissioner may authorize a SIP or updated SIP developed under 19 TAC Chapter 97, Subchapter EE, to supersede the provisions of and satisfy the requirements of developing, reviewing, and revising a campus improvement plan under TEC, Chapter 11, Subchapter F. The adopted amendment also specifies actions that the commissioner may take if the commissioner determines that a campus for which an intervention is ordered is not fully implementing the CIT's recommendations or the SIP or updated SIP.

Additionally, references and requirements related to the School Leadership Pilot Program are stricken from 19 TAC §97.1063 in alignment with changes in HB 3. Language is added to this section to clarify that, if assigned by the commissioner, a SCPT may supersede the authority of and satisfy the requirements of establishing and maintaining a campus-level planning and decision-making committee under TEC, Chapter 11, Subchapter F. The section title is also changed.

Adopted new 19 TAC §97.1064, Reconstitution, updates and relocates reconstitution requirements that previously were reflected in 19 TAC §97.1063. The adopted new section continues to state the timelines under which a campus will be ordered to undergo reconstitution and describes the role of the CIT in updating and seeking approval of the SIP. The adopted new section continues to include language regarding the authority of the CIT to determine which educators may be retained at a reconstituted campus but revises language in accordance with HB 3 to describe circumstances surrounding a CIT's determination related to the retention of the principal at a campus that is undergoing reconstitution. The adopted new section continues to describe the authority of the commissioner to assign a monitor, conservator, management team, or board of managers to ensure and oversee district and campus-level activities related to required intervention and sanction activities and outlines factors the commissioner must take into consideration when appointing individuals to serve in these roles. The adopted new section references the authority of the commissioner to impose on a district or campus certain other sanctions that are reasonably required and addresses the role of the district in successful campus reconstitution.

The adopted amendment to 19 TAC §97.1065, Campus Closure or Alternative Management, implements the provisions of HB 3 related to circumstances under which the commissioner may, or is required to, order certain sanctions for campuses with insufficient performance over multiple years. Specifically, the adopted amendment revises the timeline under which the commissioner is required to order a sanction for certain campuses and adds repurposing, in addition to campus closure and alternative management, as one of the sanctions that must be ordered by the commissioner.

The adopted amendment also establishes that repurposing, alternative management, or campus closure may be ordered for a multi-year unacceptable campus if students fail to demonstrate substantial improvement in the areas targeted by an updated SIP. Furthermore, the adopted amendment establishes that repurposing, alternative management, or campus closure will be ordered if a campus has been identified as unacceptable for the third, as opposed to second, consecutive year after reconstitution is required to be implemented, thus adding an additional year to the mandatory intervention timeline previously established in statute. Additionally, the adopted amendment provides for a one-year waiver of these required sanctions if the commissioner determines that, based on significant improvement over the preceding two school years, the campus is likely to be acceptable in the following year. The adopted amendment also establishes the requirements that must be met before the commissioner can approve a plan for campus repurposing and includes parameters that may be considered by the commissioner when determining whether to order repurposing, alternative management, or campus closure when one of these sanctions is required.

The adopted amendment also outlines requirements and procedures for the district to appeal the commissioner's order of repurposing, alternative management, or campus closure and outlines other sanction actions that the commissioner may impose to achieve the purposes outlined in TEC, Chapter 39, and 19 TAC Chapter 97, Subchapter EE. In addition, the section title is changed.

The adopted amendment to 19 TAC §97.1067, Alternative Management of Campuses, updates statutory references in alignment with HB 3.

The adopted amendment to 19 TAC §97.1069, Providers of Alternative Campus Management, updates requirements to align with HB 3 by allowing the commissioner to solicit proposals from qualified for-profit entities to assume alternative management of a campus if a non-profit entity has not responded to the commissioner's request for qualifications.

The adopted amendment to 19 TAC §97.1071, Special Program Performance; Intervention Stages, updates statutory references in alignment with HB 3.

The adopted amendment to 19 TAC §97.1073, Appointment of Monitor, Conservator, or Board of Managers, updates statutory references to provide clarity and align with HB 3.

The adopted rule actions have no new reporting implications. Consistent with current procedures, the commissioner must notify school districts and charter districts of their accreditation status. Those districts assigned an Accredited-Warned or Accredited-Probation status have a continuing requirement to notify parents and property owners of the district and must provide documentation of this notification to the TEA. Districts and campuses have continued reporting obligations related to required interventions and sanctions. Under the adopted rule actions, an additional procedural requirement consistent with statute is for the board of trustees of a school district to conduct a hearing to notify the public of insufficient campus performance, solicit public comment on the SIP, and post the SIP on the district's website, in addition to submitting the SIP to the commissioner.

The adopted rule actions have no new locally maintained paperwork requirements. Districts will continue to be required to maintain documentation related to completion of required performance-based monitoring intervention activities and/or implementation of any required accreditation sanctions.

The TEA determined that there is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

The public comment period on the proposal began April 23, 2010, and ended May 24, 2010. Following is a summary of public comments received and corresponding agency responses regarding the proposed revisions to 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions.

§97.1051, Definitions

Comment. Concerning proposed §97.1051(6), a representative of Moak, Casey and Associates requested clarification of the difference between "insufficient performance" as defined in the rule and "academically unacceptable performance" and "performance termed Academically Unacceptable in prior law."

Agency Response. The agency provides the following clarification. The agency has reviewed the instances in statute in which the term "insufficient performance" is used and determined that, in each instance, the term has a known meaning. Specifically, the term "performance is insufficient," "insufficient performance," or "insufficient student performance" is referenced in Texas Education Code (TEC), §§39.102(a)(2), (3), and (8); 39.106(a)(1)(A), (b), (c), and (e-1)(1)(A); and 39.108, and, in each case, the statutory context provides clear statutory meaning. The proposed definition was intended to clarify the meaning of the term. However, given the potential of the definition to create confusion when the statutory context is clear, the agency has deleted the proposed definition of "insufficient performance" at §97.1051(6) from the rule.

Comment. The Texas School Alliance (TSA) commented that, while certain terminology in the proposed rules reflects language used in House Bill (HB) 3, it is often unclear and may be overlapping in meaning. Specifically, the TSA states that the rules at §97.1051(6) and §97.1063(a) include phrases such as "insufficient performance," performance that is "academically unacceptable" (lower case) and "Academically Unacceptable" (with upper case clearly signaling a rating under the existing system), and "performance of a campus that is below any standard under ... §39.054(e)..." and requested that the TEA incorporate more explicit and/or consistent phrasing in the definitions reflected in §97.1051.

Agency Response. The agency has reviewed the instances in statute in which the term "insufficient performance" is used and determined that, in each instance, the term has a known meaning. Specifically, the term "performance is insufficient," "insufficient performance," or "insufficient student performance" is referenced in TEC, §§39.102(a)(2), (3), and (8); 39.106(a)(1)(A), (b), (c), and (e-1)(1)(A); and 39.108, and, in each case, the statutory context provides clear statutory meaning. The proposed definition at §97.1051(6) was intended to clarify the meaning of the term "insufficient performance" as it relates to other references to academically unacceptable performance. However, given the potential of the definition to create confusion when the statutory context is clear, the agency has deleted the proposed definition of "insufficient performance" at §97.1051(6). Additionally, in regard to references to "academically unacceptable," "Academically Unacceptable," and "performance of a campus that is below any standard under ... §39.054(e)...," the language of the proposed rules generally mirrors the language of the statute or uses terms that have a clearly established historical meaning. Therefore, the agency has determined that it is not necessary to create additional definitions to clarify statutory intent.

§97.1053, Purpose, and §97.1055, Accreditation Status

Comment. The TSA noted that the 2006 accountability cycle is specified in §97.1053(b) as the starting point for considering a district's ratings history for the purposes of assigning an accreditation status. The TSA further stated that this specification may make sense for the current accountability system through 2011 but asserted that sanctions should not be incremented in a year in which it is not reasonably possible to gauge the extent of school or district improvement, given all the changes in measurement and system rigor. In reference to §97.1055(a)(8), the TSA questioned how, if the system transition is so great that the state is unwilling to issue ratings in 2012, the commissioner could possibly justify incrementing sanctions in either 2012 or 2013 based on ratings that span back to 2006 in an entirely different system.

Agency Response. The agency provides the following clarification. The agency acknowledges that the changes made through HB 3 to the state's academic accountability system are substantial and that the implications are broad in nature. However, in specific regard to §97.1055(a)(8), the agency notes that a district's accreditation status may be influenced by many other factors, namely the district's financial accountability rating results and other factors as referenced in TEC, §39.052, and §97.1055. Therefore, the agency has determined that no adjustment to the timeline reflected in §97.1053 or §97.1055 is warranted, and it is reasonable for districts to anticipate that other available data may be used for the purposes of assigning a 2012-2013 accreditation status to districts. The language in §97.1055(a)(8) acknowledges this fact and establishes a framework whereby, should accreditation statuses be assigned, the prior academic accountability results of the district will be considered in the assignment. For example, absent other concerns, a district that was assigned an Academically Unacceptable academic accountability rating in 2011 and a Substandard financial accountability rating in 2012 would earn a 2012-2013 Accredited-Warned status. Additionally, the data and information contributing to a district's 2011-2012 accreditation status results may be carried forward in assigning a 2012-2013 accreditation status.

§97.1055, Accreditation Status