TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 129. STUDENT ATTENDANCE

SUBCHAPTER AA. COMMISSIONER'S RULES

19 TAC §129.1025

The Texas Education Agency (TEA) adopts an amendment to §129.1025, concerning student attendance. The amendment is adopted with changes to the proposed text as published in the September 16, 2016, issue of the Texas Register (41 TexReg 7234). The section adopts by reference the annual student attendance accounting handbook. The handbook provides student attendance accounting rules for school districts and charter schools. The amendment adopts by reference the 2016-2017 Student Attendance Accounting Handbook, dated November 2016.

REASONED JUSTIFICATION. The TEA has adopted its student attendance accounting handbook in rule since 2000. Attendance accounting evolves from year to year, so the intention is to annually update 19 TAC §129.1025 to refer to the most recently published student attendance accounting handbook.

Each annual student attendance accounting handbook provides school districts and charter schools with the Foundation School Program (FSP) eligibility requirements of all students, prescribes the minimum requirements of all student attendance accounting systems, lists the documentation requirements for attendance audit purposes, and details the responsibilities of all district personnel involved in student attendance accounting. The TEA distributes FSP resources under the procedures specified in each current student attendance accounting handbook. The final version of the student attendance accounting handbook is published on the TEA website. A supplement, if necessary, is also published on the TEA website.

The amendment to 19 TAC §129.1025 adopts by reference the student attendance accounting handbook dated November 2016 for the 2016-2017 school year.

Significant changes to the 2016-2017 Student Attendance Accounting Handbook from the 2015-2016 Student Attendance Accounting Handbook, and additional changes made since publication of the proposed handbook dated August 2016, include the following.

Section 1

In response to public comment, language was added at adoption to note the change in attendance reporting beginning in the 2016-2017 school year from the Public Education Information Management System (PEIMS) to the Texas Student Data Standards Public Education Information Management System (TSDS PEIMS).

Section 2

The section on student detail reports specifies that campuses that offer multiple instructional tracks will have multiple student detail reports.

A requirement was added that the student detail report contain the total eligible minutes present for a student in an Optional Flexible School Day Program or High School Equivalency Program.

The word campus was changed to track in the student detail reports.

The campus summary report is required to summarize all tracks on a campus.

Language was added to specify that if a campus has multiple tracks, the earliest track beginning date and latest track ending date should be indicated in the campus and district summary reports.

The district summary report is required to summarize all campuses in the school district or open-enrollment charter school.

Section 3

The attendance exception for an eligible transfer student was removed from shared services arrangements (SSAs), including regional day school program for the deaf (RDSPD) SSAs.

Information was added stating that a student is considered present for FSP funding purposes if the student is temporarily absent because of a documented appointment for the student or the student's child that is with a health care professional who is certified or registered by an appropriate agency of the State of Texas.

Language was added to specify that the TEA will grant a maximum of six early release waivers per school year.

Information was added to allow a school district or an open-enrollment charter school to add additional minutes to the instructional day to make up for closures due to bad weather or other issues of health or safety.

In response to public comment, changes were made at adoption to remove references to highly qualified teachers in proposed footnotes 101 and 102.

Changes were made at adoption to correct cross references to graduation requirements in 19 TAC §89.1070 from §89.1070(b)(3) to §89.1070(b) on pages 40 and 42.

Section 4

A requirement was added that a student with a disability cannot be reported with a special education instructional setting code in the PEIMS before actual service begins.

Information was added to clarify that the admission, review, and dismissal (ARD) committee may determine that services will begin on the same date as the ARD committee meeting with agreement from all parties.

Language was added to specify that code 00 is used regardless of whether speech therapy is provided in the general education classroom or in a location other than a general education setting.

Language was modified to specify that a teacher serving a student at home or hospital bedside while the student is in the special education homebound setting must be a certified special education teacher. Language relating to No Child Left Behind (NCLB) and the teacher's highly qualified status was removed.

Language was clarified regarding when to use instructional setting code 41 or 42.

A requirement was added to clarify that personnel can be certified instead of being qualified when providing students with speech therapy or other services.

A requirement was added that with the closing of speech therapy services, RDSPD SSAs must report students who reside in one district but receive educational services in another district as transfer students.

In response to public comment, a change was made at adoption to remove language specifying that if no special education services are being provided, the student should be dismissed from the special education program.

Section 5

Language was added to specify that beginning with the 2016-2017 school year, schools and teachers will only need to meet state requirements for certification. The federal term highly qualified teacher status would no longer apply. Paraprofessionals would still be required to meet the highly qualified requirements of NCLB for the 2016-2017 school year.

A requirement was added to state that teachers with less than a bachelor's degree are not eligible to teach Career and Technical Education courses that meet graduation requirements.

Section 6

The term limited English proficient was changed to English language learner throughout the section.

Section 7

In the subsection on student eligibility for prekindergarten based on eligibility for the national school lunch program, information was added relating to documentation of family income level.

Section 10

Language was updated to align with statute that states that a juvenile justice alternative education program must operate at least 7 hours per day (420 minutes) and at least 180 days per year.

Section 12

An update was added to state that a total of no more than three semester courses taken through the Texas Virtual School Network statewide course catalog may be used in determining a student's average daily attendance eligibility for any one semester with a maximum of six total semester courses in a school year. An exception applies to a student who lacks just six semester courses to meet his or her graduation plan, is in the final semester of the school year, and did not generate FSP funding in the first semester of that school year.

Section 14

At adoption, a note was added to the definition of 2-through-4 hour rule to clarify that the rule includes recess and in-class breakfast.

In response to public comment, the definition of compulsory attendance age was modified at adoption to reflect the current compulsory attendance age.

In response to public comment, the definition of instructional track was modified at adoption to clarify when a school should report students on a different track.

In response to public comment, the definition of school days was modified at adoption to align with existing requirements in the handbook and reflect that charter schools are not required to have a 420-minute school day.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began September 16, 2016, and ended October 17, 2016. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendment to 19 TAC Chapter 129, Student Attendance, Subchapter AA, Commissioner's Rules, §129.1025, Adoption by Reference: Student Attendance Accounting Handbook.

Comment: The Texas Charter Schools Association (TCSA) commented on the definition of school day in Section 14 of the proposed 2016-2017 Student Attendance Accounting Handbook, which required open-enrollment charter schools to have 75,600 minutes in the school year minus the number of minutes that are approved for waivers. The commenter stated that the Texas Education Code, §25.081, does not apply to charter schools and does not require a waiver to have less than 75,600 minutes. The commenter further stated that since open-enrollment charter schools are not subject to calendar requirements, the definition of a school day for charter schools should match existing requirements in the handbook in Section 3.8, Calendar, and Section 3.8.1, Length of School Day.

Agency Response: The agency agrees. The definition of school day has been modified to match existing language in the handbook and reflect that charter schools are not required to have a 420-minute school day.

Comment: The TCSA recommended that the references to highly qualified teachers in proposed footnotes 101 and 102 be removed since, under the Every Student Succeeds Act (ESSA), the requirement for highly qualified status no longer applies to charter school or independent school district educators.

Agency Response: The agency agrees. Applicable footnotes in the handbook have been modified to remove references to highly qualified teachers. Although the provision for highly qualified status under ESSA is no longer applicable to charter school or high school educators, it is important to note that all state certification requirements adopted under Texas Administrative Code, Title 19, Education, Part 7, State Board for Educator Certification, remain in place.

Comment: Disability Rights Texas commented that the proposed addition of a statement in Section 4.7.10.1 regarding the dismissal of a student from the special education program is contrary to the Individuals with Disabilities Education Act and recommended that the statement be removed.

Agency Response: The agency agrees. Section 4.7.10.1 has been modified to remove the statement from the handbook.

Comment: An individual commented that references to PEIMS codes should be updated to reflect the new codes for TSDS PEIMS.

Agency Response: The agency agrees. The handbook has been modified to include references for the new codes in TSDS PEIMS.

Comment: An education service center employee commented that the definitions for compulsory attendance age and instructional track in the glossary should be updated to reflect the current compulsory age for attendance and clarify when a school should report students on a different track.

Agency Response: The agency agrees. The glossary definitions for compulsory attendance age and instructional track have been modified to reflect the current compulsory attendance age and to clarify when a school should report students on a different track.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §25.081, which authorizes that each school year each school district and charter school provides for at least 75,600 minutes of instruction, including intermissions and recesses, for students. In addition, the commissioner may approve the instruction of students for fewer than 75,600 minutes if a calamity causes the school closing; TEC, §25.0812, which requires that school districts and charter schools may not schedule the last day of school for students before May 15; TEC, §30A.153, which requires the commissioner to adopt rules for the implementation of Foundation School Program (FSP) funding for the state virtual school network, including rules regarding attendance accounting; TEC, §42.004, which authorizes the commissioner of education, in accordance with rules of the State Board of Education, to take such action and require such reports consistent with TEC, Chapter 42, as may be necessary to implement and administer the FSP.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §§25.081, 25.0812, 30A.153, and 42.004.

§129.1025.Adoption by Reference: Student Attendance Accounting Handbook.

(a) The student attendance accounting guidelines and procedures established by the commissioner of education under §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes) and the Texas Education Code, §42.004, to be used by school districts and charter schools to maintain records and make reports on student attendance and student participation in special programs will be published annually.

(b) The standard procedures that school districts and charter schools must use to maintain records and make reports on student attendance and student participation in special programs for school year 2016-2017 are described in the official Texas Education Agency (TEA) publication 2016-2017 Student Attendance Accounting Handbook, dated November 2016, which is adopted by this reference as the agency's official rule. A copy of the 2016-2017 Student Attendance Accounting Handbook, dated November 2016, is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. In addition, the publication can be accessed from the TEA official website. The commissioner will amend the 2016-2017 Student Attendance Accounting Handbook, dated November 2016, and this subsection adopting it by reference, as needed.

(c) Data from previous school years will continue to be subject to the student attendance accounting handbook as the handbook existed in those years.

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 November 18, 2016.

TRD-201606006

Christina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: December 8, 2016

Proposal publication date: September 16, 2016

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