TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 97. PLANNING AND ACCOUNTABILITY

SUBCHAPTER AA. ACCOUNTABILITY AND PERFORMANCE MONITORING

19 TAC §97.1005

The Texas Education Agency (TEA) adopts an amendment to §97.1005, concerning accountability and performance monitoring. The amendment is adopted without changes to the proposed text as published in the June 2, 2017 issue of the Texas Register (42 TexReg 2897) and will not be republished. The amendment adopts the 2017 Performance-Based Monitoring Analysis System (PBMAS) Manual. Earlier versions of the manual will remain in effect with respect to the school years for which they were developed.

REASONED JUSTIFICATION. House Bill 3459, 78th Texas Legislature, 2003, added the Texas Education Code (TEC), §7.027, limiting and redirecting monitoring done by the TEA to that required to ensure school district and charter school compliance with federal law and regulations; financial accountability, including compliance with grant requirements; and data integrity for purposes of the Public Education Information Management System and accountability under TEC, Chapter 39. Legislation passed in 2005 renumbered TEC, §7.027, to TEC, §7.028. To meet this monitoring requirement, the agency developed the PBMAS, which is used in conjunction with other evaluation systems, to monitor performance and program effectiveness of special programs in school districts and charter schools.

The TEA has adopted its PBMAS Manual in rule since 2005. The PBMAS is a dynamic system that evolves over time, so the specific criteria and calculations for monitoring performance and program effectiveness may differ from year to year. The intent is to update 19 TAC §97.1005 annually to refer to the most recently published PBMAS Manual.

The adopted amendment to 19 TAC §97.1005 updates the current rule by adopting the 2017 PBMAS Manual, which describes the specific criteria and calculations that will be used to assign 2017 PBMAS performance levels (PLs).

The 2017 PBMAS includes several key changes from the 2016 system. Revisions to the State of Texas Assessments of Academic Readiness (STAAR®) are reflected in the 2017 PBMAS with the final administrations of the STAAR® A and STAAR® L in December 2016. In addition, the availability of an additional year's data enables the Special Analysis component to be reinstated for many of the STAAR® performance indicators and for Required Improvement (RI) to be available for the English language arts (ELA) end-of-course (EOC) indicators.

RI is also available for bilingual education/English as a second language (BE/ESL) Indicator #7 (LEP Graduation Rate). This graduation rate indicator was revised in the 2016 PBMAS to reflect graduation rates based on students identified as English language learners (ELLs) at any time while attending Grades 9-12 in a Texas public school rather than determined only based on students identified as ELLs in their last year in a Texas public school. Additionally, the PL cut points for the two Texas English Language Proficiency Assessment System (TELPAS) indicators are aligned through minor adjustments to BE/ESL Indicator #8 (TELPAS Reading Beginning Proficiency Level Rate).

A PL 4 designation was added to CTE Indicator #2(iv) (CTE LEP STAAR EOC Passing Rate - ELA) and CTE Indicator #4(iv) (CTE SPED STAAR EOC Passing Rate - ELA). These changes align the CTE LEP and CTE SPED STAAR EOC ELA indicators with the BE/ESL and SPED STAAR EOC ELA indicators that already include a PL 4 designation.

For the 2017 PBMAS, each course listed in Appendix A of the 2016 PBMAS Manual was evaluated based on information from the Office of Career, Technical, and Adult Education and the National Alliance for Partnerships in Equity to determine if the course should still be considered nontraditional for males or females. Based on that information, approximately 30 courses were deleted from the list and 40 courses were added. Appendix A in this manual reflects the updated course lists for males and females. Because the changes are significant, CTE Indicator #7 (CTE Nontraditional Course Completion Rate - Males) and CTE Indicator #8 (CTE Nontraditional Course Completion Rate - Females) are assigned PLs of Report Only for the 2017 PBMAS.

Since 2013, TEA has been implementing a transition plan for the PBMAS SPED program area in anticipation of new federal regulations under 34 Code of Federal Regulations Part 300, which were finalized and issued on December 19, 2016. These regulations require 98 separate indicators to evaluate districts' data regarding (a) special education representation [49 indicators]; (b) disciplinary removals [35 indicators]; and (c) educational placements [14 indicators]. These indicators will be used to assign PLs of significant disproportionality based on seven racial/ethnic groups and six disability categories, as required. The federal regulations also require thresholds be set to determine which districts will be identified for significant disproportionality. As with all PBMAS PL cut points, the 2017 PBMAS thresholds for these new indicators were set with advice from stakeholder groups.

Because the PBMAS representation and educational placements indicators were already well aligned with federal requirements and had included preliminary calculations of disproportionality, the expanded federal requirements pertaining to those two components can immediately be incorporated into SPED Indicator #11 (SPED Representation - Ages 3-21), SPED Indicator #7 (SPED Regular Class <40% Rate - Ages 6-21), and a new SPED Indicator #8 (SPED Separate Settings Rate - Ages 6-21). The three PBMAS discipline indicators, however, will need to be replaced with the 35 discipline indicators required to implement the new federal regulations. There is insufficient time for those indicators to be developed and included with the 2017 PBMAS. Therefore, the discipline indicators will be integrated into the 2018 PBMAS.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began June 2, 2017, and ended July 3, 2017. Following is a summary of public comments received and corresponding agency responses.

Comment. A school district special education director requested that the agency consider the impact of an increase of nearly 100 new special education indicators measuring significant disproportionality (SD) and the impossible challenge these indicators will present to school districts. The commenter expressed concern that the new indicators could have the unintended effect of limiting services to students with disabilities as districts strive to meet these new requirements, particularly since there will be a financial impact to districts that exceed the SD thresholds. The commenter emphasized that the decision to establish eligibility and begin special education services should be made by the admission, review, and dismissal (ARD) committee based on parent input, staff observations, and assessment data, not based on indicators that will cause districts to be subject to monitoring consequences. The commenter further suggested that the agency should be required to obtain approval from the U.S. Department of Education (USDE) for the new indicators.

Agency Response. The agency disagrees that it has not considered the impact of the new SD indicators, and it provides the following clarification. As stated in the proposed 2017 PBMAS Manual (page 5), the 98 new SD indicators are required by the USDE under 34 Code of Federal Regulations (CFR) Part 300. Also, as stated on page 5, the agency has reiterated since the inception of the PBMAS Manual rule adoption process that districts are obligated to follow federal law irrespective of their anticipated PBMAS results. The federal regulations repeat TEA's long-standing position by adding a rule of construction asserting that nothing in the federal regulations, including the potential consequences of exceeding the thresholds for SD, authorizes the development or implementation of policies, practices, or procedures that result in actions that violate federal law, including requirements related to child find and ensuring that a free appropriate public education is available to all eligible children with disabilities.

Comment. Disability Rights Texas, Coalition of Texans with Disabilities, the Arc of Texas, and the Texas Council for Developmental Disabilities commented that (1) the proposed addition of SD indicators to the PBMAS do not reflect the emphasis on public input evident in USDE's regulations under 34 CFR Part 300; (2) the 2016 PBMAS discipline indicators should remain in place; and (3) the 2016 PBMAS LEP Representation Indicator should not be deleted. These organizations also provided comments on the Texas Continuous Improvement Steering Committee (TCIS), the Continuous Advisory Committee (CAC), the Annual Performance Report (APR), and House Bill (HB) 674.

Agency Response. The agency disagrees that LEP representation is not evaluated in the 2017 PBMAS and that the 2016 PBMAS discipline indicators should remain in place. Additionally, the agency provides the following three clarifications. First, the 2017 PBMAS Manual rule adoption process and the opportunity for public comment it provides are in compliance with Texas Government Code, Title 10, General Government, Chapter 2001, Administrative Procedure, Subchapter B, Rulemaking. Comments regarding stakeholder input specified in federal regulations under 34 CFR Part 300, including comments about the TCIS and CAC, are outside the scope of the current rule proposal, and those comments will be provided to the TEA Division of Special Student Populations for further consideration.

Second, as described in the proposed 2017 PBMAS Manual (page 5), there was insufficient time for the agency to develop the 35 new discipline indicators required under 34 CFR Part 300 and include them with the 2017 PBMAS. Instead, the discipline indicators will be previewed in the 2017 Discipline Data Validation system. Because all available agency resources will be devoted to developing the new discipline indicators required by USDE, there are no agency resources available to implement the 2016 PBMAS discipline indicators in the 2017 PBMAS as the commenters suggest.

Third, as described in the proposed 2017 PBMAS Manual, the LEP Representation Indicator as well as the Hispanic and African American Representation Indicators from the 2016 PBMAS have been replaced with Indicator #11 in the 2017 PBMAS. Also as described in the proposed 2017 PBMAS Manual, if a district's LEP representation risk ratio exceeds the SD threshold, it will be included on the district's report and assigned a performance level of 3. These changes ensure Indicator #11 in the 2017 PBMAS is aligned with the provisions under 34 CFR Part 300.

Comments regarding the APR and HB 674 are outside the scope of the current rule proposal, and those comments will be provided to the TEA Division of Special Student Populations for further consideration.

Comment. The Texas Council of Administrators of Special Education (TCASE) recommended aligning PL cut points for SPED Indicators #1(i-v), #2(i-v), and #3(i-iv) with a 60% Index 1 target used in the state accountability system for the same data elements.

Agency Response. The agency agrees that the PL cut points proposed for use in the 2017 PBMAS are different from the Index 1 target adopted in the 2017 state academic accountability system but disagrees that the PBMAS and the state academic accountability system are measuring the same data elements. Because the PBMAS and the state academic accountability systems are designed differently and the indicators evaluated are substantially different, each system includes targets or cut points appropriate for the purposes, goals, design, and requirements of the particular system. One of the critical differences between the two systems is evident in the distinction between a single, pass/fail accountability index target and a range of PBMAS PL assignments. The comment related to the alignment of cut points incorrectly equates a single-standard, pass/fail system (the state academic accountability system) with a multi-level PL system (PBMAS). Because of this major difference between a single standard/target in the academic accountability system and a range of PLs in PBMAS, the agency disagrees that the values associated with assigning PBMAS PLs are unfair. In fact, compared to the single 60% Index 1 target, only districts with passing rates less than 20% on Indicator 1(i-v), 50% on Indicator 2(i-v), and, depending on subject area, less than 19% to 35% on Indicator 3(i-iv) are assigned the lowest PL in the 2017 PBMAS.

Comment. TCASE recommended allowing districts to earn badges or academic distinctions based on data from SPED Indicator #2(i-v).

Agency Response. This comment is outside the scope of the current rule proposal.

Comment. TCASE recommended moving SPED Indicator #4 to Report Only to comply with the Every Student Succeeds Act (ESSA), contending ESSA specifically prohibits setting a cap on local districts for the percentage of students who can take an alternate assessment.

Agency Response. The agency disagrees that SPED Indicator #4 sets a cap on local districts for the percentage of students who can take an alternate assessment. Comparisons between the ESSA requirements regarding alternate assessments and SPED Indicator #4 are not appropriate given the purpose, definitions, and methodology are significantly different between ESSA and PBMAS. SPED Indicator #4 does not set a cap on local districts for the percentage of students who can take an alternate assessment, and regardless of how many students are administered the STAAR® Alternate 2 in any district, there are no limits in PBMAS on the number or percent of those results that may be included in other PBMAS indicators that evaluate districts' STAAR® subject-area proficiency rates.

Independent from ESSA's provisions related to alternate assessments, however, there are state and federal requirements that SPED Indicator #4 is specifically designed to meet. These include state statute (Texas Education Code, §39.057) that requires the agency to determine when "excessive numbers of students in special education programs under Subchapter A, Chapter 29, are assessed through instruments developed or adopted under Section 39.023(b) [alternate assessments]." Additionally, a key component of the USDE state assessments peer review process requires each state to monitor (1) the administration of its state assessments to ensure standardized test administration procedures are implemented with fidelity across districts and schools; and (2) test administration in its districts and schools to ensure appropriate assessments, with or without appropriate accommodations, are selected for students with disabilities under the Individuals with Disabilities Education Act (IDEA), students covered by Section 504, and English language learners so that they are appropriately included in assessments and receive accommodations that are: consistent with the state's policies for accommodations; appropriate for addressing a student's disability or language needs for each assessment administered; consistent with accommodations provided to the students during instruction and/or practice; consistent with the assessment accommodations identified by a student's individualized education program (IEP) team or 504 team for students with disabilities, or another process for an English language learner; and administered with fidelity to test administration procedures.

The agency is also required to ensure it has implemented a state data audit system that assesses data quality, validity, and reliability of individual student data, including student assessment data. Furthermore, in making state determinations under IDEA, §616(d), USDE holds states accountable for the percentage of children with disabilities who participate in regular statewide assessments compared to the percentage who participate in alternate assessments.

SPED Indicator #4 enables the agency to respond to these and other diverse state and federal requirements while at the same time allowing districts to make appropriate assessment decisions for students based on individual students' needs and the extent to which students meet the eligibility requirements for a particular assessment or accommodation. Moreover, because the STAAR® Alternate 2 does have specific eligibility requirements and districts evaluated by the agency's monitors for their students' participation in the STAAR® Alternate 2 have not always been able to provide evidence that justified the administration of the alternate assessment, SPED Indicator #4 will continue to be an important component of the agency's monitoring system.

Comment. TCASE recommended replacing the current calculations for SPED Indicators #9 and #10 and using Senate Bill (SB) 1867, 84th Texas Legislature, 2015, to calculate graduation and dropout rates or to create an appeals process for PL assignments to be adjusted based on data analysis using SB 1867 rate calculations. Additionally, TCASE offered a general recommendation regarding the use of endorsement data in future iterations of PBMAS.

Agency Response. The agency disagrees. SPED Indicators #9 and #10 are designed to meet federal requirements specific to dropout and graduation rates. Provisions under SB 1867 do not meet federal requirements. The comment about future iterations of the PBMAS is outside the scope of the current rule proposal.

Comment. TCASE recommended consolidating future discipline and disproportionality indicators, resulting in one PL with sub-indicators for each specific data element.

Agency Response. The comment about future PBMAS indicators is outside the scope of the current rule proposal. The agency notes, however, that future PBMAS discipline and disproportionality indicators will be implemented as required by federal regulations under 34 CFR Part 300, which do not permit one consolidated PL as the commenter recommends.

Comment. TCASE recommended allowing districts two or more years to make necessary programming adjustments in response to the new SD calculations or adding an appeals process to incentivize greater student achievement and allow use of the most current data.

Agency Response. The agency disagrees and provides the following clarification. The agency is implementing federal regulations under 34 CFR Part 300 as required by the USDE. These regulations specify the timeline and process states must use for making SD determinations, and they do not provide for the commenter's recommendation.

Comment. TCASE offered general recommendations concerning the Texas Student Data System Public Education Information Management System (TSDS PEIMS) and residential facilities monitoring.

Agency Response. This comment is outside the scope of the current rule proposal.

Comment. TCASE offered general recommendations for increasing transparency of PBMAS, developing continuous improvement plans or corrective action plans, and streamlining the overall systems of special education compliance, monitoring, and accountability.

Agency Response: This comment is outside the scope of the current rule proposal. However, the agency notes that the status of many of these recommendations is included in A Report on the Texas Education Agency's Efforts in Implementing the Provisions of Rider 70, available on the TEA website at http://tea.texas.gov/Reports_and_Data/Legislative_Reports/Legislative_Reports/.

Comment. The Coalition of Human Rights Policy Advocates (CHRPA) recommended that all PBMAS SPED indicators have special analysis and not minimum size requirements (MSR) of 30 in the denominators, contending an MSR of 30 in the denominators does not properly represent the population and is not statistically sound.

Agency Response. The agency disagrees. The availability of the PBMAS special analysis process, which requires multiple years of comparable data, depends on each particular indicator. The agency includes special analysis when appropriate and applicable. As currently outlined in federal regulations, the new SD indicators are based on single-year calculations for which USDE has determined that a denominator MSR of 30 and numerator MSR of 10 are "presumptively reasonable." MSRs for each PBMAS indicator are evaluated annually to ensure an appropriate balance between the proposed rule's guiding principle of maximum inclusion and the essential requirement for statistical reliability and validity.

Comment. CHRPA requested further definition of how the PBMAS special analysis process is implemented.

Agency Response. The agency provides the following clarification. The proposed 2017 PBMAS Manual includes a full description of how the PBMAS special analysis process is implemented (pages 14-15). The commenter is encouraged to contact the agency with any specific questions regarding this process that are not described in those pages.

Comment. CHRPA recommended that more indicators be added to the SPED program in PBMAS, including one that would measure IEP goals and another that would measure the percentage of progress against the measure in the IEP goal.

Agency Response. This comment is outside the scope of the current rule proposal. Additionally, the agency notes that, given the significant amount of agency resources required to develop and implement the new 98 SD indicators required by federal regulations under 34 CFR Part 300, it is unable to consider any additional discretionary indicator development at this time.

Comment. An individual recommended that the STAAR® Spanish results be taken out of the denominators for SPED Indicators #1(i-v), #2(i-v), and #4 and instead recommended adding three new indicators to the PBMAS BE/ESL program area, contending the STAAR® Spanish results are an unnecessary mix of significantly different data that ensures the results are skewed.

Agency Response. In the absence of any evidence indicating the STAAR® Spanish results are skewed, the agency disagrees with the recommendation. The agency further notes that indicators in the PBMAS BE/ESL program area already evaluate STAAR® Spanish results, including results of students served in BE/ESL who are also receiving special education services.

Comment. An individual recommended developing a Spanish STAAR® Alternate 2.

Agency Response. This comment is outside the scope of the current rule proposal.

Comment. An individual recommended that SPED Indicators #6-#8 not be Report Only.

Agency Response. The agency disagrees and provides the following clarification. As noted on page 63 of the proposed 2017 PBMAS Manual, only Indicator #8 has a Report Only component. The agency recognizes that the proposed rule's guiding principle of system evolution creates a dynamic in which indicators are added, revised, or deleted in response to changes and developments that occur outside of the system, including new federal requirements. The agency is engaged in an ongoing process of integrating and aligning its special education monitoring responsibilities, as noted in A Report on the Texas Education Agency's Efforts in Implementing the Provisions of Rider 70, available at http://tea.texas.gov/Reports_and_Data/Legislative_Reports/Legislative_Reports/. As part of that process, the agency will continue the phase-in approach to new indicator development evident in previous years' PBMAS releases. This may require components of certain new indicators to be Report Only for a period of time prior to full implementation.

Comment. An individual recommended that SPED Indicators #6-#8 include disaggregation by disability category.

Agency Response. The agency disagrees. The 2017 PBMAS SPED Indicators #6-#8 are disaggregated in accordance with federal regulations under 34 CFR Part 300.

Comment. An individual stated that schools do not follow IEPs.

Agency Response. This comment is outside the scope of the current rule proposal.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §7.028, as that section existed before amendment by Senate Bill (SB) 1488, 85th Texas Legislature, Regular Session, 2017, which authorizes the agency to monitor as necessary to ensure school district and charter school compliance with state and federal law and regulations; TEC, §29.001(5), which authorizes the agency to effectively monitor all local educational agencies (LEAs) to ensure that rules relating to the delivery of services to children with disabilities are applied in a consistent and uniform manner, to ensure that LEAs are complying with those rules, and to ensure that specific reports filed by LEAs are accurate and complete; TEC, §29.010(a), which authorizes the agency to adopt and implement a comprehensive system for monitoring LEA compliance with federal and state laws relating to special education, including ongoing analysis of LEA special education data; TEC, §29.062, as that section existed before amendment by House Bill (HB) 22, 85th Texas Legislature, Regular Session, 2017, which authorizes the agency to monitor the effectiveness of LEA programs concerning students with limited English proficiency; TEC, §39.051 and §39.052, as that section existed before amendment by HB 22, 85th Texas Legislature, Regular Session, 2017, which authorize the commissioner to determine criteria for accreditation statuses and to determine the accreditation status of each school district and open-enrollment charter school; TEC, §39.054(b-1), which authorizes the agency to consider the effectiveness of district programs for special populations, including career and technical education programs, when determining accreditation statuses; TEC, §§39.056, 39.057, as that section existed before amendment by SB 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017, and 39.058, which authorize the commissioner to adopt procedures relating to onsite and special accreditation investigations; TEC, §39.102 and §39.104, as those sections existed before repeal by SB 1488, 85th Texas Legislature, Regular Session, 2017, which authorize the commissioner to implement procedures to impose interventions and sanctions for school districts and open-enrollment charter schools.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §7.028, as that section existed before amendment by Senate Bill (SB) 1488, 85th Texas Legislature, Regular Session, 2017; §29.001(5); §29.010(a); §29.062, as that section existed before amendment by House Bill (HB) 22, 85th Texas Legislature, Regular Session, 2017; §39.051; §39.052, as that section existed before amendment by HB 22, 85th Texas Legislature, Regular Session, 2017; §39.054(b-1); §39.056; §39.057, as that section existed before amendment by SB 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017; §39.058; and §39.102 and §39.104, as those sections existed before repeal by SB 1488, 85th Texas Legislature, Regular Session, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 25, 2017.

TRD-201702775

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: August 14, 2017

Proposal publication date: June 2, 2017

For further information, please call: (512) 475-1497