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) proposes an amendment to §129.1025, concerning student attendance accounting. The proposed amendment would adopt by reference the 2018-2019 Student Attendance Accounting Handbook.

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 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 proposed amendment to 19 TAC §129.1025 would adopt by reference the student attendance accounting handbook for the 2018-2019 school year.

Significant changes to the 2018-2019 Student Attendance Accounting Handbook from the 2017-2018 Student Attendance Accounting Handbook include the following.

Section 3, General Attendance Requirements

TEC, §25.081, and Chapter 42, specifically §42.005, establish the general parameters for attendance and school operation. The following changes would implement reporting requirements for attendance and funding.

Language would be added to define classroom time as instructional time for purposes of funding and the 2-through-4-hour rule.

Language would be added to clarify that a child of a military family who moves to a Texas district from another state that is a member state of the Interstate Compact on Educational Opportunity for Military Children is entitled to continue enrollment at the same grade level, including kindergarten, in which the student was enrolled in the sending state regardless of the child's age.

A chart would be added to provide guidance on the required number of operational and/or instructional minutes for districts and charter schools to receive full funding.

Language would be added to encourage school districts and charter schools to ensure that the required number of minutes/days are built into the school board-approved calendar, as part of the third Texas Student Data System Public Education Information Management System (TSDS PEIMS) data submission, since districts and charters do not report their calendars to the TEA until after the school year is complete and may not realize they are subject to a funding reduction until time has expired to correct their calendars.

Language would be added to specify that certain charter schools operating before January 1, 2015, are not subject to the 75,600-minute requirement. However, charter schools operating before January 1, 2015, must provide 180 days of attendance with a minimum of four hours of daily instruction with any applicable waivers and complying with their charter contract terms regarding student instructional time.

Language would be added to specify that a district must adopt a school calendar that is in accordance with the program type that is listed on the chart in Section 3.8. The district is encouraged to make sure that the adopted calendar includes additional minutes to account for at least two bad weather or other missed school days related to health and safety concerns.

Language would be revised to specify that if due to weather, safety, or health issues, the school district or charter school falls short of the required number of minutes/days in accordance with the program type that is listed on the chart in Section 3.8 (beyond the additional minutes/days already built into the adopted school calendar for makeup minutes/days), a missed school day waiver application must be submitted using the TEA's automated waiver application system, which is available in the online TEA Login (TEAL) secure environment.

Language would be added to state that staff development waiver minutes are for staff development in place of student instruction; therefore, the waiver minutes are only applicable to staff development provided instead of student instruction during the school year.

Language would be added to state that staff development waiver minutes (days) may not be used prior to the first day of student instruction or after the last day of student instruction. On staff development days when students are in attendance part of the day, in order to receive full average daily attendance (ADA) funding, the district or open-enrollment charter school must provide at least 120 minutes of student instruction. In addition to the 120 minutes of student instruction, any staff development waiver minutes reported must reflect actual staff development minutes provided.

Language would be added to specify that school districts and charter schools must demonstrate that they are providing high-quality staff development that will impact student outcomes.

Section 4, Special Education

TEC, Chapter 42, specifically §42.151, authorizes funding for special education in certain circumstances. TEC, §42.004, authorizes the commissioner to require reports that may be necessary to implement and administer the Foundation School Program. The following changes would implement reporting for special education to account for attendance and funding.

Language would be added to state that when a student who is eligible for special education but not eligible for prekindergarten (PK) is served in a PK classroom, the student must have a special education teacher or dually certified teacher in the classroom for the student's entire instructional day for ADA and weighted funding to be generated. If a special education teacher is not in the classroom for the student's entire instructional day, ADA will not be generated.

Section 5, Career and Technical Education (CTE)

TEC, Chapter 42, including §42.154, authorizes funding for Career and Technical Education (CTE) in certain circumstances. TEC, Chapter 29, Subchapter F, establishes general parameters for CTE programs. TEC, §42.004, authorizes the commissioner to require reports as may be necessary to implement and administer the FSP. The following changes would implement reporting for CTE to account for attendance and funding.

Language would be added to state that a student is not eligible to receive any CTE contact hours for partial participation.

A chart title would be revised from "Combination of Classroom Instruction, Work-Based Instruction" to "Combination of Classroom Instruction and Work-Based Instruction (Work-site or Lab-Based)" for clarification purposes.

An example would be added for clarification to demonstrate CTE contact hours that are required for participation in a CTE course.

Section 6, Bilingual/English as a Second Language (ESL)

TEC, Chapter 42, specifically §42.153, authorizes funding for bilingual or special language programs in certain circumstances. TEC, Chapter 29, Subchapter B, establishes general parameters for bilingual and special language programs. TEC, §42.004, authorizes the commissioner to require reports as may be necessary to implement and administer the FSP. The following changes implement reporting for bilingual and special language programs to account for attendance and funding.

Language would be added to specify that the terms "exit" and "reclassify," as used in Section 6 of the handbook, are interchangeable with the term "transfer," used in the TEC, Chapter 29, Subchapter B.

Language would be added to specify that if a district is required to provide a bilingual education program, trained district personnel must administer an oral language proficiency test (OLPT) in the home language of each student who is eligible to be served in the bilingual education program.

Language would be added to explain that when a bilingual/ESL student moves to a school district, the district (the receiving district) should immediately begin serving the student in the bilingual or ESL education program while it works actively to secure documentation (LPAC records and assessment information) from the sending district. In the event that no LPAC records are received from the sending district, the receiving district should make multiple diligent, documented attempts to get the required documentation from the sending district to avoid possible miscoding.

Language would be added to specify that a student must be served in a full-time bilingual instructional program by staff members certified to teach bilingual education. The amount of instruction in each language (the student's home language and English) must align with the TEA guidelines specific to either transitional bilingual programs (early exit, late exit) or dual language programs (one-way, two-way).

Language would be added to specify that a student must be provided instruction in ESL by staff members certified to teach ESL or bilingual education. In PK through Grade 8, teachers must integrate the English Language Proficiency Standards (ELPS) using second language acquisition methods while delivering content instruction, either via pull-out or content-based ESL programming.

Language would be added to state that students in PK through Grade 5 (or through Grade 6, if Grade 6 is clustered with elementary grades) who are counted for funding in the transitional bilingual education program (early exit, late exit) must be served by bilingual-certified staff members. In dual language programs (one-way, two-way), a teacher assigned to the component of the program provided in a language other than English must hold a bilingual teaching credential. A teacher assigned to the component of a dual language program provided in English must be certified by the State Board for Educator Certification in either bilingual education or ESL.

Language would be added to require that when a student enrolls in a Texas school for the very first time, the home language survey must be completed. This original home language survey must be retained in the student's record over the course of the student's educational career.

Language would be added to establish that electronic parent signatures are permissible for home language surveys for students in PK through Grade 8.

Language would be added to explain that for a student moving from one district to another within Texas, the original home language survey or a copy of the original home language survey must be kept in the student's record at the new district. If the original home language survey or a copy of the original home language survey cannot be located after multiple documented attempts, then a new home language survey must be conducted by the receiving district.

An example would be added to Enrollment Procedures to explain the procedure to follow if a student is enrolled in a one-way dual language program starting in kindergarten and meets criteria to exit the program at the end of Grade 4.

Section 7, Prekindergarten (PK)

TEC, Chapter 29, Subchapter E, establishes special general parameters for PK programs. TEC, Chapter 42, including §42.005, establishes ADA requirements and authorizes funding for certain circumstances. TEC, §42.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes would implement reporting for PK to account for attendance and funding.

Additional language would be added to specify that recipients of the Star of Texas Award that is given by the Office of the Governor, Criminal Justice Division, honors recipients that are eligible for free PK if they meet PK eligibility requirements. The resolution (certificate) awarded to an individual serves as proof of eligibility to enroll these children in free prekindergarten if they are age-eligible. A list of past honorees may be viewed on the Criminal Justice Division--Past Honorees webpage. Honorees may also provide a letter from their local representative as documentation for eligibility.

Section 11, Nontraditional Programs

TEC, Chapter 29, Subchapter A, establishes special general parameters for nontraditional programs. TEC, Chapter 42, including §42.005, establishes ADA requirements and authorizes funding for certain circumstances. TEC, §42.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes would implement reporting for nontraditional programs to account for attendance and funding.

Language would be added to explain that a dropout recovery program in which courses are conducted online can be included in the Optional Flexible School Day Program (OFSDP) to provide flexible hours and days of attendance for students who have dropped out of school or are at risk of dropping out as defined by TEC, §29.081.

Language would be added to explain that a student must receive a minimum of 45 minutes of instruction on any given day to accrue eligible OFSDP minutes for the day. For each 4 hours or 240 minutes of eligible instruction a student receives, the student earns one eligible day present. Eligible days present are then converted to ADA for funding purposes. The maximum number of instructional minutes allowed each school day, including any instructional time accounted for in traditional courses toward graduation requirements, is 600 minutes, or 10 hours. Instructional time for the OFSDP is funded at the same rate under the FSP formulas as attendance for ADA in the traditional program; however, a single course cannot accrue more than 10,800 minutes and a full-time equivalent student is expected to have a total of 43,200 minutes of instruction per year to generate one ADA.

Language would be added to explain if an eligible student participates in a course offered through an online dropout recovery education program at a district or charter school with an approved OFSDP and meets the requirements for enrollment in a Texas public school district or charter school, the student is eligible to generate FSP funding for each course the student successfully completes. Online dropout recovery education programs must be able to track and report the number of minutes spent by an eligible student in each course so that minutes do not exceed the maximum allowed per course. Districts and charter schools must report ineligible minutes for courses that are not completed successfully.

Section 14, Glossary

The definition of instructional day would be revised.

The definition of operational day would be revised.

A definition for school day would be deleted.

A definition for days of instruction would be added.

The proposed amendment would place the specific procedures contained in the 2018-2019 Student Attendance Accounting Handbook in the Texas Administrative Code. The TEA distributes FSP funds according to the procedures specified in each annual student attendance accounting handbook. Data reporting requirements are addressed through the TSDS PEIMS.

The handbook has long stated that school districts and open-enrollment charter schools must keep all student attendance documentation for five years from the end of the school year. Any new student attendance documentation required to be kept would correspond with the student attendance accounting requirement changes described previously.

FISCAL NOTE. Leo Lopez, associate commissioner for school finance / chief school finance officer, has determined that for the first five-year period the amendment is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment. There is no effect on local economy for the first five years that the proposed amendment is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed amendment does not impose a cost on regulated persons and, therefore, is not subject to Texas Government Code, §2001.0045.

GOVERNMENT GROWTH IMPACT. The TEA has determined that the proposed amendment does not have a government growth impact pursuant to Texas Government Code, §2001.0221.

PUBLIC BENEFIT/COST NOTE. Mr. Lopez has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be continuing to inform the public of the existence of annual publications specifying attendance accounting procedures for school districts and charter schools. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins December 29, 2017, and ends January 29, 2018. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Rulemaking, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Comments may also be submitted electronically to rules@tea.texas.gov. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on December 29,2017.

STATUTORY AUTHORITY. The amendment is proposed under the Texas Education Code (TEC), §7.055(b)(35), which states that the commissioner shall perform duties in connection with the Foundation School Program (FSP) as prescribed by the TEC, Chapter 42; TEC, §25.081, as amended by House Bill (HB) 441 and HB 2442, 85th Texas Legislature, Regular Session, 2017, which states that for each school year, each school district must operate so that the district provides for at least 75,600 minutes, including time allocated for instruction, intermissions, and recesses, for students; TEC, §25.081(d), which authorizes the commissioner to adopt rules to implement the section; TEC, §25.081(f), which states that a school district may not provide student instruction on Memorial Day but that if a school district would be required to provide student instruction on Memorial Day to compensate for minutes of instruction lost because of school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity, the commissioner shall approve the instruction of students for fewer than the number of minutes required under TEC, §25.081(a); TEC, §25.0812, which states that school districts and charter schools may not schedule the last day of school for students before May 15; TEC, §25.087, as amended by Senate Bill (SB) 1152, 85th Texas Legislature, Regular Session, 2017, which requires that a school district excuse a student who is 17 years of age or older from attending school to pursue enlistment in a branch of the armed services of the United States or the Texas National Guard, provided that (1) the district may not excuse for this purpose more than four days of school during the period the student is enrolled in high school; and (2) the district verifies the student's activities related to pursuing enlistment in a branch of the armed services or the Texas National Guard. The statute requires each school district to adopt procedures to verify a student's activities as described by TEC, §25.087(b-5); TEC, §29.0822, as amended by HB 2442 and HB 3706, 85th Texas Legislature, Regular Session, 2017, which enables a school district to provide a program under this section that meets the needs of students described by TEC, §29.0822(a), for a school district that meets application requirements, including allowing a student to enroll in a dropout recovery program in which courses are conducted online; TEC, §30A.153, which states that, subject to the limitation imposed under the TEC, §30A.153(a-1), a school district or open-enrollment charter school in which a student is enrolled is entitled to funding under the TEC, Chapter 42, or in accordance with the terms of a charter granted under the TEC, §12.101, for the student's enrollment in an electronic course offered through the state virtual school network in the same manner that the district or school is entitled to funding for the student's enrollment in courses provided in a traditional classroom setting, provided that the student successfully completes the electronic course; TEC, §42.004, which states that the commissioner, in accordance with the rules of the State Board of Education, shall take such action and require such reports consistent with the TEC, Chapter 42, as may be necessary to implement and administer the FSP; TEC, §42.005, as amended by SB 2084 and HB 2442, 85th Texas Legislature, Regular Session, 2017, which states that average daily attendance is the quotient of the sum of attendance for each day of the minimum number of days of instruction as described under the TEC, §25.081(a), divided by the minimum number of days of instruction; TEC, §42.151, which states that for each student in average daily attendance in a special education program under the TEC, Chapter 29, Subchapter A, in a mainstream instructional arrangement, a school district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 1.1. For each full-time equivalent student in average daily attendance in a special education program under the TEC, Chapter 29, Subchapter A, in an instructional arrangement other than a mainstream instructional arrangement, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by a weight determined according to its instructional arrangement; TEC, §42.152, which states that for each student who is educationally disadvantaged or who is a student who does not have a disability and resides in a residential placement facility in a district in which the student's parent or legal guardian does not reside, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 0.2, and by 2.41 for each full-time equivalent student who is in a remedial and support program under the TEC, §29.081, because the student is pregnant; TEC, §42.153, which states that for each student in average daily attendance in a bilingual education or special language program under the TEC, Chapter 29, Subchapter B, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 0.1; and TEC, §42.154, as amended by SB 22 and HB 3593, 85th Texas Legislature, Regular Session, 2017, which states that for each full-time equivalent student in average daily attendance in an approved career and technology education program in Grades 9-12 or in career and technology education programs for students with disabilities in Grades 7-12, a district is entitled to weighted funding.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code (TEC), §§7.055(b)(35); 25.081, as amended by House Bill (HB) 441 and HB 2442, 85th Texas Legislature, Regular Session, 2017; 25.0812; 25.087, as amended by Senate Bill (SB) 1152, 85th Texas Legislature, Regular Session, 2017; 29.0822, as amended by HB 2442 and HB 3706, 85th Texas Legislature, Regular Session, 2017; 30A.153; 42.004; 42.005, as amended by Senate Bill (SB) 2084 and HB 2442, 85th Texas Legislature, Regular Session, 2017; 42.151-42.153; and 42.154, as amended by SB 22 and HB 3593, 85th Texas Legislature, Regular Session, 2017.

§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 2018-2019 [2017-2018] are described in the official Texas Education Agency (TEA) publication 2018-2019 [2017-2018] Student Attendance Accounting Handbook, dated March 2018 [September 2017], which is adopted by this reference as the agency's official rule. A copy of the 2018-2019 [2017-2018] Student Attendance Accounting Handbook, dated March 2018 [September 2017], 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 2018-2019 [2017-2018] Student Attendance Accounting Handbook, dated March 2018 [September 2017] , 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 13, 2017.

TRD-201705111

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Earliest possible date of adoption: January 28, 2018

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