19 TAC §97.1005

(Editor's note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figure in 19 TAC §97.1005 is not included in the print version of the Texas Register. The figure is available in the on-line version of the June 2, 2017, issue of the Texas Register.)

The Texas Education Agency (TEA) proposes an amendment to §97.1005, concerning accountability and performance monitoring. The proposed amendment would adopt 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.

House Bill 3459, 78th Texas Legislature, 2003, added the 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 Texas Education Code (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 proposed amendment to 19 TAC §97.1005 would update 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 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 will be 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.

The proposed amendment would establish in rule the PBMAS procedures for assigning the 2017 PBMAS PLs. Applicable procedures will be adopted each year as annual versions of the PBMAS Manual are published.

The proposed amendment would have no locally maintained paperwork requirements.

FISCAL NOTE. Penny Schwinn, associate commissioner for academics, 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.

PUBLIC BENEFIT/COST NOTE. Ms. Schwinn 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 manuals specifying PBMAS procedures by including this rule in the Texas Administrative Code. 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 AND MICROBUSINESSES. 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.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins June 2, 2017, and ends July 3, 2017. 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 public hearing on the proposed amendment will be held from 8:30 a.m. until the conclusion of testimony or not later than 11:30 a.m. on June 16, 2017, in Room 1-111, William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701. Questions about the hearing should be directed to the Division of Performance Reporting at (512) 463-9704.

STATUTORY AUTHORITY. The amendment is proposed under the Texas Education Code (TEC), §7.028, 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, which authorizes the agency to monitor the effectiveness of LEA programs concerning students with limited English proficiency; TEC, §39.051 and §39.052, 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, §§39.056-39.058, which authorize the commissioner to adopt procedures relating to onsite and special accreditation investigations; and TEC, §39.102 and §39.104, 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, 29.001(5), 29.010(a), 29.062, 39.051, 39.052, 39.054(b-1), 39.056-39.058, 39.102, and 39.104.

§97.1005.Performance-Based Monitoring Analysis System.

(a) In accordance with Texas Education Code, §7.028(a), the purpose of the Performance-Based Monitoring Analysis System (PBMAS) is to report annually on the performance of school districts and charter schools in selected program areas: bilingual education/English as a Second Language, career and technical education, special education, and certain Title programs under federal law. The performance of a school district or charter school is reported through indicators of student performance and program effectiveness and corresponding performance levels established by the commissioner of education.

(b) The assignment of performance levels for school districts and charter schools in the 2017 [2016] PBMAS is based on specific criteria and calculations, which are described in the 2017 [2016] PBMAS Manual provided in this subsection.

Figure: 19 TAC §97.1005(b) (.pdf)

[Figure: 19 TAC §97.1005(b)]

(c) The specific criteria and calculations used in the PBMAS are established annually by the commissioner of education and communicated to all school districts and charter schools.

(d) The specific criteria and calculations used in the annual PBMAS manual adopted for prior school years remain in effect for all purposes, including accountability and performance monitoring, data standards, and audits, with respect to those school 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 May 22, 2017.


Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Earliest possible date of adoption: July 2, 2017

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