The Texas Education Agency (TEA) proposes amendments to §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, and 97.1073, concerning accreditation status, standards, and sanctions. The proposed amendments would provide additional clarity regarding who may qualify as a professional service provider; outline the standards used by the commissioner to determine the imposition of sanctions and add clarity regarding when conservators, management teams, and boards of managers will be appointed; and update the process for transitioning from a board of managers to the board of trustees. The proposed amendments would also update references to the Texas Education Code (TEC) based on recodification legislation from the 85th Texas Legislature, Regular Session, 2017.

§97.1051, Definitions

TEC, §39A.902, authorizes the commissioner to require a campus or district to acquire professional services to address certain deficiencies. The statute does not define what type of entity may provide the professional services. The proposed amendment to §97.1051 would expand the current definition of professional service provider to include any partners, not just educators, that satisfy the agency vetting process to provide the services. The proposed amendment would increase the quality and availability of professional services by expanding the type of entities that may provide the services.

§97.1057, Interventions and Sanctions; Lowered Rating or Accreditation Status, and §97.1059, Standards for All Accreditation Sanction Determinations

TEC, Chapter 39A, authorizes the commissioner to impose sanctions and interventions on districts and campuses that do not satisfy applicable standards.

The proposed amendment to §97.1057(d) would place into rule the statutory authorization to appoint a board of managers found in TEC, §39A.006, when, for two consecutive school years, including the current school year, the district has had a conservator or management team assigned. The proposed amendment would define a school year as starting on the first day of instruction and including any portion of the school year. Since school years can vary between districts, the proposed language would use the first day of instruction as a common starting point between districts. By defining school year as any portion of the school year, the proposed language clarifies that the current school year need not be the entire school year. If the current school year were required to be the full school year, one could never satisfy the standard because once the current school year was completed, it would no longer be the current school year. The proposed amendment would implement past practice by the agency.

The proposed amendments to §97.1057(f) and §97.1059 would establish an additional standard that the commissioner may consider when making determinations to impose sanctions and interventions. Section 97.1057 establishes the primary consideration to be the best interest of the district's students. The proposed amendment to §97.1057(f) would make clear that an inability to implement effective change to improve student performance at the district or campus is contrary to the best interest of the district's students. Additionally, §97.1059 establishes what constitutes a material deficiency for which sanctions shall be imposed. The proposed amendment to §97.1059 would make explicit that an inability to implement effective change to improve student performance at the district or campus is considered a material deficiency for which sanctions on a district or campus shall be imposed. The statutory framework establishes a system to ensure that public schools improve student performance. The proposed amendments would make clear that an inability to initiate change focused on improving student performance acts against students' best interest and will initiate intervention processes.

§97.1065, Commissioner Determinations for Decisions Preceding Alternative Management, Campus Closure, or Board of Managers

TEC, §39A.001, requires the commissioner to take actions for districts under TEC, Chapter 39A, Subchapter A, Accountability Interventions and Sanctions, to the extent the commissioner determines necessary. TEC, §39A.002, allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams. TEC, §39A.102, allows the commissioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan.

Proposed new §97.1065(b) would make explicit that actions taken against campuses under TEC, §39A.107, are subject to commissioner rules adopted in 19 TAC Chapter 157, Hearings and Appeals, for challenging interventions. The rules in 19 TAC Chapter 157 comply with the statutory requirements established under TEC, §39A.301. Clarification of the challenge process would ensure uniformity in applying interventions and recourse to interventions.

TEC, §39A.112, authorizes the commissioner to establish the time and manner for a parent petition to direct the sanction imposed based on five consecutive years of unacceptable campus performance. The proposed amendment to §97.1065(d) would update the requirements for a parent petition, making it clear that the superintendent is responsible for certifying a valid petition and that parent signatures collected after the issuance of preliminary ratings for the fourth consecutive year of unacceptable performance are part of the petition. The proposed amendment should facilitate the processing and delivery of a valid petition. The proposed amendment would also make clear that the sanction will be implemented for the current year or, if necessary, for the subsequent school year regardless of performance rating. This change would recognize the difference in timing between the appointment of a board of managers, which can be done relatively quickly, or the closure of the campus, which would displace students if done immediately. The change would ensure that a campus would not be required to close in the middle of a school year.

§97.1073, Appointment of Monitor, Conservator, or Board of Managers

The proposed amendment to §97.1073(b) would make explicit that a monitor may be appointed when a district is assigned an accreditation status of warned or probated. This would ensure that the commissioner may be kept apprised of actions of the district to enact change. The proposed amendment implements TEC, §39A.102, which authorizes the assignment of a monitor to ensure support of low-performing campuses and implementation of a targeted improvement plan.

The proposed amendment to §97.1073(c) would make explicit that a conservator or management team may be appointed when a district is assigned an accreditation status of probation. The proposed amendment would also implement TEC, §39A.102, which authorizes the assignment of a conservator or management team when necessary to ensure district-level support of low-performing campuses or implementation of a targeted improvement plan. This change would ensure that actions may be required of the district to initiate necessary changes to improve performance.

The proposed amendment to §97.1073(d) would make clear that the appointment of additional conservators to establish or add to a management team is not an additional sanction subject to additional review. The imposition of a conservator or management team is driven by performance, and the district has a review opportunity at that time. The use of multiple conservators or a single conservator is a decision of efficiency and efficacy of the intervention tool, not a question of whether the district is subject to the intervention.

TEC, §39A.111, requires the commissioner to either close a campus or appoint a board of managers if a campus reaches five consecutive years of unacceptable performance. TEC, §39A.115, authorizes the commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter C, Campus Turnaround Plan. The proposed amendment to §97.1073(e) would make clear that the commissioner may appoint a board of managers if closure of a campus is not ordered when a campus meets the standards under TEC, §39A.111. The proposed amendment would implement TEC, §39A.102, which authorizes the assignment of a board of managers when necessary to ensure district-level support of low-performing campuses or implementation of a targeted improvement plan. The proposed amendment would make clear that a board of managers may be placed based on deficiencies identified in a special accreditation investigation. The proposed changes incorporate the explicit statutory authorizations.

TEC, §39A.208, requires that a board of managers transition back to a board of trustees over the last three years of the board of managers appointment, as close to one-third of the members at a time as possible. The statute also requires the board of managers to continue to call for elections of board of trustees although the board of trustees's authority is suspended. The statute further requires that a board of trustees may only be restored if the members were elected under an election called by the board of managers. The proposed amendment to §97.1073(g) would clarify that the commissioner may determine the order of the trustee positions restored to authority during a board of managers transition. The proposed amendment would also state that in the absence of a designation, the default transition established in §97.1073 would be maintained. As districts have multiple configurations of trustee positions, providing for commissioner determination of transition would allow the commissioner to adjust for unique circumstances and ensure the transition occurs in an orderly fashion.

Several sections of the TEC authorize the commissioner to appoint a board of managers. TEC, Chapter 39A, Subchapter E, establishes parameters and requirements of a board of managers. Decisions of number of the board of managers and terms of the board of managers are not statutorily defined. TEC, §39A.207, provides explicit authorization of the commissioner to replace members of the board of managers when placed due to campus-based interventions. The proposed amendment to §97.1073(g) would make clear that the commissioner may expand or reduce the number of members on a board of managers and may remove a member as needed. This change would ensure that as circumstances change, the board of managers would remain an effective intervention to improve performance of the district.

§§97.1051, 97.1053, 97.1057, 97.1065, and 97.1073

Senate Bill 1488, 85th Texas Legislature, Regular Session, 2017, recodified TEC, Chapter 39, Subchapter E, into TEC, Chapter 39A. Sections 97.1051, 97.1053, 97.1057, 97.1065, and 97.1073 would be amended to update cross references affected by the recodification.

The proposed amendments would have no procedural or reporting implications. The proposed amendments would have no locally maintained paperwork requirements.

FISCAL NOTE. A.J. Crabill, deputy commissioner for governance, has determined that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments. There is no effect on local economy for the first five years that the proposed amendments are in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed amendments do not impose a cost on regulated persons and, therefore, are not subject to Texas Government Code, §2001.0045.

GOVERNMENT GROWTH IMPACT: In accordance with Texas Government Code, §2001.0221, TEA staff has determined that the proposed amendments would expand, limit, or repeal an existing regulation. The proposed amendment to §97.1051 limits an existing regulation by expanding the types of entities that can provide professional services. The proposed amendments to §97.1057(f) and §97.1059 expand an existing regulation by adding the district inability to implement effective change to improve student performance as a reason that a sanction or intervention may be ordered.

PUBLIC BENEFIT/COST NOTE. Mr. Crabill has determined that for each year of the first five years the proposed amendments are in effect the public benefit anticipated as a result of enforcing the proposed amendments will be providing clarity in the administration of interventions and sanctions. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins September 29, 2017, and ends October 30, 2017. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Rulemaking, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Comments may also be submitted electronically to rules@tea.texas.gov. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on September 29, 2017.

STATUTORY AUTHORITY. The amendments are proposed under the Texas Education Code (TEC), §39.051, which requires the commissioner to determine accreditation statuses; TEC, §39.057, as amended by Senate Bill (SB) 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017, which authorizes the commissioner to take intervention actions based on a special accreditation action, which includes the appointment of a board of managers under TEC, §39A.004, lowering the accreditation, or both; TEC, §39.102(a)(9), as amended by House Bill (HB) 1553 and SB 1566, 85th Texas Legislature, Regular Session, 2017, which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include authorizing a district to enter into a memorandum of understanding with an institution of higher education to improve the district's performance; TEC, §39.102(a)(12), which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include requiring the use of a board improvement and evaluation tool as provided by TEC, §11.182; TEC, §39A.001, which requires the commissioner to take actions for districts under the TEC, Chapter 39A, Subchapter A, Interventions and Sanctions for School Districts, to the extent the commissioner determines necessary, including any action the commissioner determines is appropriate on the bases of a special accreditation investigation; TEC, §39A.002, which allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams; TEC, §39A.003, which establishes the powers, duties, and limitations on the authority of a conservator or management team; TEC, §39A.004, which allows the commissioner to appoint a board of managers upon the satisfaction of certain conditions; TEC, §39A.005, which allows the commissioner to revoke the accreditation of a district upon the satisfaction of certain conditions; TEC, §39A.006, which allows the commissioner to appoint a board of managers after the assignment of a conservator or management team for two consecutive years; TEC, §39A.007, which allows the commissioner to impose additional sanctions designed to improve high school completion rates if the district fails any standard because of a district's dropout rate; TEC, §39A.051, which allows the commissioner to take actions as provided by TEC, Chapter 39A, as the commissioner determines necessary when a campus fails to meet the standard on any accountability indicator; TEC, §39A.052, which allows the commissioner to include certain educational personnel on a campus intervention team; TEC, §39A.053, which establishes the requirements for onsite needs assessments performed by a campus intervention team; TEC, §39A.054, which establishes the parameters for the recommendations that a campus intervention team provides; TEC, §39A.055, which requires a campus intervention team to assist in developing a targeted improvement plan; TEC, §39A.056, which establishes public notice requirements for a targeted improvement plan; TEC, §39A.057, which establishes hearing requirements for a targeted improvement plan; TEC, §39A.058, which requires submission of a targeted improvement plan to the commissioner for approval; TEC, §39A.059, which allows a campus intervention team, if appropriate, to take certain actions in executing a targeted improvement plan; TEC, §39A.060, recodified from TEC, §39.106, as amended by HB 2263, 85th Texas Legislature, Regular Session, 2017, which establishes continuing duty requirements for a campus intervention team; TEC, §39A.061, allows the commissioner to authorize certain intervention mechanisms to substitute for certain committees and planning requirements at a campus; TEC, §39A.062, which authorizes the commissioner to require campus- and district-level committees to revise campus improvement plans in certain circumstances; TEC, §39A.063, which authorizes the commissioner to accept a substantially similar federal intervention in place of imposing a state intervention; TEC, §39A.101, which requires the commissioner to order a campus to develop a campus turnaround plan after two consecutive years of unacceptable performance, requires the campus intervention team to assist in developing the plans, and requires the plan to include all necessary details to implement without further action by the board of trustees; TEC, §39A.102, which allows the commissioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan; TEC, §39A.103, which requires public notices and requests for assistance in developing the campus turnaround plan prior to submitting the plan to the board of trustees; TEC, §39A.104, which requires the school district to prepare the campus turnaround plan and allow review prior to submitting to the board of trustees and requires that the plan assist in satisfying all accountability standards; TEC, §39A.105, which establishes the requirements of a campus turnaround plan; TEC, §39A.106, which requires the campus turnaround plan to take effect no Cont'd...