The rule action presented in this item will be filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts amendments to 19 TAC Chapter 97, Planning and Accountability, Subchapter DD, Investigative Reports, Sanctions, and Record Reviews. The adopted amendments update and clarify procedures for on-site investigations and reports and for accreditation sanctions resulting from such reports. The adopted amendments reflect changes in the Texas Education Code (TEC), Chapter 39, as reflected in House Bill (HB) 3, 81st Texas Legislature, Regular Session, 2009.

STATUTORY AUTHORITY:

TEC, §12.104 and §12.1162, and TEC, §§39.058, 39.102, 39.103, 39.104, and 39.152, as amended and renumbered by HB 3, 81st Texas Legislature, 2009.

EFFECTIVE DATE:

December 22, 2010.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:

HB 3, 81st Texas Legislature, Regular Session, 2009, enacted numerous changes to the TEC, Chapter 39, and renumbered the chapter, requiring that existing rules be revised and updated.

The rules in 19 TAC Chapter 97, Planning and Accountability, Subchapter DD, Investigative Reports, Sanctions, and Record Reviews, define the procedures for on-site investigations and reports as required by TEC, §39.058, and procedures for accreditation sanctions under TEC, Chapter 39, Subchapter E, resulting from such reports. The rules provide for notice to any person whom the report finds to have committed a violation of law, rule, or policy and provide for an informal review of such findings before they may become final.

The adopted amendments to 19 TAC Chapter 97, Subchapter DD, update and clarify existing rules in light of HB 3. Specifically, the adopted amendments establish the following.

The adopted amendment to 19 TAC §97.1031, Preliminary Investigative Report, updates statutory references in alignment with HB 3. Additionally, language in subsection (b)(3), establishing a specific deadline for requesting an informal review of preliminary investigative findings, was deleted to provide for individual consideration of an appropriate timeline in alignment with the nature of the findings. No changes were made to the rule since published as proposed.

The adopted amendment to 19 TAC §97.1033, Informal Review of Preliminary Investigative Report; Final Investigative Report, provides a minor technical update in subsection (b) in alignment with the change made to §97.1031(b)(3). No changes were made to the rule since published as proposed.

The adopted amendment to 19 TAC §97.1035, Procedures for Accreditation Sanctions, adds a reference in subsection (a) to interventions for charter violations under §100.1023. In addition, subsection (d) updates statutory references in alignment with HB 3. No changes were made to the rule since published as proposed.

The adopted amendment to 19 TAC §97.1037, Record Review of Certain Decisions, updates statutory references in alignment with HB 3. Additionally, subsection (a)(5) was deleted, as HB 3 added open-enrollment charter schools to the state's financial accountability rating system, which has a statutorily required appeals process.

In response to public comment, 19 TAC §97.1037 was modified at adoption to clarify agency intent. Specifically, 19 TAC §97.1037(e)(6) was revised to clarify that district or charter school participants in a record review are allowed to ask questions during a review, and 19 TAC §97.1037(g)(1)(A) was revised to remove an unnecessary reference to a "school district."

FISCAL IMPACT:

The Texas Education Agency (TEA) has determined that there are no additional costs to persons or entities required to comply with the rule actions. The rule actions make minor procedural updates and update statutory references in alignment with HB 3, 81st Texas Legislature, Regular Session, 2009. The rule actions assign no additional fiscal burden beyond what already is imposed by law.

In addition, the TEA has 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.

PUBLIC AND STUDENT BENEFIT:

The adopted amendments to 19 TAC §§97.1031, 97.1033, and 97.1035 update references and clarify procedures for on-site investigations and reports and for accreditation sanctions resulting from such reports in light of HB 3. The adopted amendment to 19 TAC §97.1037 continues to ensure that entities are afforded appropriate administrative review of certain accreditation sanctions and continues to provide agency procedures for the conduct of such reviews.

PROCEDURAL AND REPORTING IMPLICATIONS:

The adopted rule actions have no new reporting implications. Changes to current procedures include the removal of a specified timeframe in 19 TAC §97.1031(b)(3) for requesting an informal review of findings to provide for individual consideration of an appropriate timeline. In addition, deletion of 19 TAC §97.1037(a)(5) removes applicability of the record review requirement to an open-enrollment charter school financial finding in lieu of a financial accountability rating in accordance with HB 3 changes that made the financial accountability rating system, and its specified appeals process, applicable to open-enrollment charter schools.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:

The adopted rule actions have no new locally maintained paperwork requirements.

PUBLIC COMMENTS:

The public comment period on the proposal began on October 8, 2010, and ended November 8, 2010. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendments to 19 TAC Chapter 97, Planning and Accountability, Subchapter DD, Investigative Reports, Sanctions, and Record Reviews.

§97.1031, Preliminary Investigative Report

Comment. Concerning proposed §97.1031(b)(3), the Texas Charter Schools Association (TCSA) commented that the removal of the 10-day deadline reference would make it possible for a charter school to have less than sufficient time to notify the TEA of its request for an informal review and could result in a school returning from a holiday to find that it had missed the window of opportunity for requesting an informal review. The TCSA requested that the 10-day rule remain and that the rule be amended to reference 10 working days instead of 10 calendar days.

Agency Response. The agency agrees in part and disagrees in part. The agency agrees that deadlines should be established taking into consideration issues such as upcoming holiday breaks and other calendar issues. However, the reference to a 10-day timeline was removed to provide flexibility to address varying situations such as critical health and safety issues that require a very short turnaround. Current agency practice is to establish a timeline in individualized district correspondence and to align the timeline to the type of findings or recommendations reflected in the correspondence. Furthermore, the agency considers upcoming holidays and other potential conflicts in establishing individualized timelines. Additionally, the agency consistently considers, and grants, as appropriate, reasonable requests for timeline extensions. Therefore, the agency has determined that removal of the 10-day timeline is necessary and appropriate and has maintained language as published as proposed.

§97.1037, Record Review of Certain Decisions

Comment. Concerning proposed §97.1037(e)(6), Region 1 Education Service Center (ESC) commented that, in the second sentence of the subsection, the word "may" should be replaced with "shall" to read, "The TEA representative shall designate a specific portion of the meeting for this purpose."

Agency Response. The agency agrees that it is appropriate to clarify rule intent as it relates to the ability of district or charter school representatives to ask questions during a record review. However, instead of adopting the specific language suggested, which would require the agency to set aside a specific portion of a record review for questions, the agency has modified §97.1037(e)(6) at adoption to clearly state in the first sentence that district participants are allowed to ask questions during a record review. The agency has maintained the language in the second sentence that allows the person conducting the record review to accept questions throughout the review or at a designated time.

Comment. Concerning proposed §97.1037(g)(1)(A), Region 1 ESC commented that the rule should be revised to clarify consequences and stated that, preferably, when a school district or charter school does not request a record review, a final order should be issued pursuant to subsection (f). Specifically, the ESC suggested that adverse action against a charter should occur only following the issuance of a final order that triggers an adverse action and should not occur solely because of the charter school's failure to request a record review. Furthermore, the ESC suggested that the words "school district" be deleted from §97.1037(g)(1)(A).

Agency Response. The agency agrees that the reference to "school district" should be deleted and has modified §97.1037(g)(1)(A) at adoption to remove the reference. In regard to the comment on adverse action, the agency notes that adverse actions are not taken solely because of the failure of a school to request a record review. The findings and recommendations leading to a proposed adverse action are detailed in preliminary agency reports and correspondence, and a record review is offered to districts and charter schools in accordance with the rule. If a record review is requested, a final order is issued after completion of the review. If a review is not requested, the preliminary findings and/or actions may become final. The agency does not agree that the decision of a district to forego a record review, or the failure of a district to request a review, should preclude the agency from taking action in response to findings and proposals reflected in a preliminary report.

ALTERNATIVES:

None.

OTHER COMMENTS AND RELATED ISSUES:

None.

Staff Members Responsible:

Laura Taylor, Associate Commissioner, Accreditation
Jim Thompson, Senior Counsel, Legal Services

For additional information, email rules@tea.state.tx.us.

Page last modified on 8/30/2011.