Adopted Amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment
I. Statutory Citation (PDF)
II. Text of Adopted Amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment (PDF)
The rule action presented in this item has been filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts an amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment. The adopted amendment modifies the rule to reflect statutory changes, implement a recent Texas Education Agency (TEA) policy decision to allow open-enrollment charter schools to apply for the allotment, amend the application process, and establish in rule a requirement for applicants to complete a survey after receiving funds. No changes were made to the rule since published as proposed.
Texas Education Code (TEC), §42.158.
January 2, 2012.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:
The TEC, §42.158, allows the commissioner by rule to establish procedures and adopt guidelines for the administration of the New Instructional Facility Allotment (NIFA). Through 19 TAC §61.1034, last amended to be effective September 23, 2004, the commissioner exercised rulemaking authority to establish definitions, explain the application process, and describe costs and payments related to the allotment.
House Bill 2237, 80th Texas Legislature, 2007, amended the TEC, §42.158, to allow the appropriation of an additional $1 million for the NIFA each school year. This additional amount must first be applied to prevent any reduction in NIFA funding for eligible high school facilities if the total amount of allotments exceeds the regular NIFA appropriation of $25 million. Any remaining funds may be applied proportionally to prevent reductions in NIFA funding for other instructional facilities.
The adopted amendment to 19 TAC §61.1034 modifies the rule to reflect this statutory change by adding new subsection (d)(3) to include an explanation of how the additional NIFA appropriation is to be allocated.
The adopted amendment also modifies the rule to allow open-enrollment charter schools to apply for the allotment, in accordance with a recent TEA policy decision. Specifically, subsection (a) is revised to state that open-enrollment charter schools are eligible for the allotment and to include facility provisions specific to open-enrollment charter schools. It is also revised to state explicitly that leased facilities are not eligible for the allotment. New subsection (d)(2)(B) is added to explain what property value will be used for an open-enrollment charter school if proration of the allotment is necessary. New subsection (e) is added to specify that property purchased with NIFA funds by an open-enrollment charter school is considered public property.
In addition, subsection (b)(1)(B) is amended to expand the list of supporting documents required to be submitted with an initial application and specify that the supporting documents must be submitted electronically.
New subsection (c) is added to require applicants that have received funding to complete a survey in the year after funding is received stating the number of days of instruction held at the facility for which funding was received.
The section is also restructured to allow for the new provisions, and minor technical edits and changes in word usage are made throughout.
No changes were made to the rule since published as proposed.
The TEA has determined that there are no additional costs to the state or persons required to comply with the rule action.
The rule action will have fiscal implications for open-enrollment charter schools that choose to apply for the allotment. An open-enrollment charter school that builds a new instructional facility and chooses to apply for the allotment will receive $250 (or a prorated amount, if proration is necessary) per student in average daily attendance at the new facility for up to two years, provided the school's application is approved. The total increase in revenue will depend on how much funding is appropriated for the allotment for a biennium, the number of charter schools submitting applications, and the number of students in average daily attendance at eligible facilities. No funding for the allotment has been appropriated for the 2012-2013 biennium.
In addition, 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 amendment incorporates modifications for the NIFA program, which helps school districts accommodate growth by providing funding to build new instructional facilities. The adopted amendment also allows open-enrollment charter school students to benefit from the NIFA.
PROCEDURAL AND REPORTING IMPLICATIONS:
The current rule requires a school district that wishes to receive an allotment to complete and submit an application requesting funding. The adopted amendment requires an open-enrollment charter school that wishes to receive an allotment to follow the same process. The application requires the name and campus number of the facility for which the allotment is being requested, applicable student count information, and estimates of the number of days of instruction at the new facility for the applicable year. Initial applications also require the electronic submission of a photograph and description of the new facility, a legal document describing the new construction, site and floor plans, and, if applicable, a demolition plan.
Under current NIFA procedures, school districts are required to submit a survey in the year after funding is received stating the number of days of instruction held at the facility for which funding was received. The amendment adopts the survey requirement in rule for school districts and open-enrollment charter schools. The survey requires the actual number of days of instruction held at the new facility.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:
Any locally maintained paperwork requirements resulting from the adopted amendment correspond with and support the stated procedural and reporting implications.
The public comment period on the proposal began October 14, 2011, and ended November 14, 2011. Following is a summary of the public comment received and the corresponding agency response regarding the proposed amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment.
Comment: The Texas Charter Schools Association (TCSA) commented that it supported the proposed amendment to 19 TAC §61.1034 modifying the rule to allow open-enrollment charter schools to apply for the allotment. The TCSA commented that charter school students would benefit from this change in the rule, as the schools that receive the allotment will be able to direct more financial resources toward classroom instruction and fewer resources toward facilities costs.
Agency Response: The agency agrees with the comment and maintains language as published as proposed.
OTHER COMMENTS AND RELATED ISSUES:
Staff Members Responsible:
Shirley Beaulieu, Associate Commissioner, Finance / Chief Financial Officer
Lisa Dawn-Fisher, Chief School Finance Officer, School Finance
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