Adopted New 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter CC, Commissioner's Rules Concerning Adult and Community Education, §89.1301, Service Provider Contracts for Adult Education Programs
I. Statutory Citations (PDF)
II. Text of Adopted New 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter CC, Commissioner's Rules Concerning Adult and Community Education, §89.1301, Service Provider Contracts for Adult Education Programs (PDF)
The rule action presented in this item was filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts new 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter CC, Commissioner's Rules Concerning Adult and Community Education, §89.1301, Service Provider Contracts for Adult Education Programs. The adopted new rule establishes a competitive procurement process for adult education service providers in accordance with the Texas Education Code (TEC), §29.2535, as added by Senate Bill (SB) 1, 82nd Texas Legislature, First Called Session, 2011.
September 20, 2012.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:
SB 1, 82nd Texas Legislature, First Called Session, 2011, added the TEC, §29.2535, requiring the Texas Education Agency (TEA) to adopt rules to provide for a competitive procurement process to award contracts to service providers of adult education programs. In accordance with the TEC, §29.2535, adopted new §89.1301, Service Provider Contracts for Adult Education Programs, establishes definitions and delineates provisions relating to the use of funds, essential program components, allocation of funds beginning with school year 2013-2014, application process, match requirements, and tuition and fees. The adopted new rule also addresses other provisions, including allowable and nonallowable expenditures, staff development, special projects, evaluation of programs, and revocation and recovery of funds.
In response to public comment, subsection (g) was modified at adoption to clarify provisions related to tuition and fees.
As required by statute, the adopted new rule changes the method for funding adult education programs by changing from the current allocation method specified in State Board of Education (SBOE) rules under 19 TAC Chapter 89, Subchapter B, to a competitive procurement process specified in commissioner rule. Upon adoption, the new commissioner rule will supersede corresponding SBOE rules relating to funding for adult education programs, which will be presented for repeal at a future SBOE meeting.
The TEA has determined that there are no additional costs to persons or entities required to comply with the new rule. The new rule does not change the total state allocation; however, the adoption may have economic benefits for school districts and open-enrollment charter schools. Under the adopted competitive process as required by the TEC, §29.2535, some currently funded providers may or may not be funded in the future and some new providers may be funded.
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 new rule will benefit the public and students by funding the most qualified service providers for adult education programs.
PROCEDURAL AND REPORTING IMPLICATIONS:
The adopted new rule will require that the TEA select adult education service providers through a competitive procurement process every two years. Applicants awarded grants will be required to track and report information and achievement of participants in the federally funded adult basic education programs in accordance with state and federal regulations. These participants are not public school students, but rather are individuals who have left or never entered the Texas public school system and are without a high school diploma. The TEA adult education management information system, Texans Educating Adults Management System (TEAMS), is already developed and in operation. All grantees, including newly awarded applicants, will report through TEAMS.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:
The adopted new rule has no new locally maintained paperwork requirements for current service providers. Any new service providers will be required to maintain student and program records.
The public comment period on the proposal began June 22, 2012, and ended July 23, 2012. Following is a summary of public comments received and corresponding agency responses regarding the proposed new 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter CC, Commissioner's Rules Concerning Adult and Community Education, §89.1301, Service Provider Contracts for Adult Education Programs.
Comment: The Gulf Coast Workforce Board, Association for the Advancement of Mexican Americans, AVANCE-Houston, and Houston Community College commented in support of charging modest tuition and fees for adult basic education students who are financially able to contribute to their own education. The commenters stated that the option to charge tuition and fees would increase the capacity of the adult education system to train more adults while continuing to serve low-income students. AVANCE-Houston and Houston Community College recommended striking §89.1301(g)(1), which prohibited charging tuition or fees for adult basic education, and adding language to specify that tuition and fees may be charged as established by local policy and that any such generated funds must be used for the adult education program. Houston Community College also commented on the importance of allowing providers the flexibility to evaluate and accommodate different student populations and local geographic areas based upon immediate local circumstances and conditions.
Agency Response: The agency disagrees. Although the Workforce Investment Act is silent on charging tuition and fees, state action is limited by Attorney General Opinion JC-0207 (2000), which states that a public entity may charge a fee or tuition only if it is specifically authorized to do so, either by statute or under the constitution. However, §89.1301(g) was modified at adoption for clarification. Proposed language in subsection (g)(1), which prohibited charging tuition or fees for adult basic education, and in subsection (g)(2), which addressed tuition and fees for adult secondary education, was removed. Language was added to subsection (g) to specify that tuition and fees for adult education instructional programs may not be charged without statutory authorization. The language adopted in subsection (g) also specifies that any such generated funds must be used for the adult education instructional program.
Comment: Houston Community College commented relating to the criteria used for the allocation formula. Houston Community College stated that the language in §89.1301(d)(2)(B)(iii), "student and program progress made," does not refer to an objective standard or method by which one may assess whether a provider of service should receive a total allocation for services rendered. Houston Community College suggested striking the proposed language and adding language to ensure proportional distribution of funds to providers/grantees based on their statewide share of program and student progress outcomes.
Agency Response: The agency disagrees and maintains language as published as proposed. The agency intends to utilize a performance-based formula for allocating adult education funds in the second year of the two-year competitive contracts. The criteria, "student and program progress made," refers to the state and federal performance measures that are applicable at the time of the allocation. This language provides the agency flexibility when and if the state and/or federal performance measures may be revised.
OTHER COMMENTS AND RELATED ISSUES:
Staff Members Responsible:
Jan Lindsey, Assistant Director, Federal and State Education Policy
Jennifer Jacob, Program Specialist, Federal and State Education Policy
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