TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 100. CHARTERS

SUBCHAPTER AA. COMMISSIONER’S RULES CONCERNING OPEN-ENROLLMENT CHARTER SCHOOLS

DIVISION 1. GENERAL PROVISIONS

19 TAC §100.1010

(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 §100.1010(b) is not included in the print version of the Texas Register. The figure is available in the on-line version of the May 26, 2017, issue of the Texas Register.)

The Texas Education Agency (TEA) adopts an amendment to §100.1010, concerning open-enrollment charter schools. The amendment is adopted with changes to the proposed text as published in the November 25, 2016, issue of the Texas Register (41 TexReg 9219). The amendment adopts in rule the 2016 Charter School Performance Framework Manual established under Texas Education Code (TEC), §12.1181.

REASONED JUSTIFICATION. TEC, §12.1181, requires the commissioner to develop and adopt rules for performance frameworks that establish standards by which to measure the performance of open-enrollment charter schools. The frameworks are used to annually evaluate each open-enrollment charter school. However, the performance of a school on a performance framework may not be considered for purposes of renewal of a charter under TEC, §12.1141(d), or revocation of a charter under TEC, §12.115(c).

In accordance with statute, the TEA developed the Charter School Performance Framework (CSPF) Manual. The manual includes measures for charters registered under the standard system and measures for charters registered under the alternative education accountability system as adopted under 19 TAC §97.1001, Accountability Rating System. The commissioner exercised rulemaking authority to adopt 19 TAC §100.1010 effective September 18, 2014.

The performance frameworks evolve from year to year, so the criteria and standards for measuring open-enrollment charter schools in the most current year may differ to some degree over those applied in the prior year. The intention is to update 19 TAC §100.1010 annually to refer to the most recently published CSPF Manual.

The amendment adopts in rule the 2016 Charter School Performance Framework Manual, which will be used to assign performance levels on the 2016 CSPF Report.

A technical change was made at adoption to the 2016 Charter School Performance Framework Manual, Operational Framework Indicator 3f, Training Requirements, to align language regarding how charter governing body members and school officers obtain their positions by changing the phrase "hired or appointed" to "appointed or hired."

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began November 25, 2016, and ended December 27, 2016. Following is a summary of public comments received and corresponding agency responses.

Comment: The Texas Charter Schools Association (TCSA) stated there is a lack of clarity for how the performance frameworks will be used in discretionary renewal and revocation decisions under TEC, §12.1141(c) and §12.115(a)(5).

Agency Response: The comment is outside the scope of the current rule proposal. Section 100.1010 is concerned with the creation of performance frameworks and a description of criteria used for general oversight of charter school performance using the CSPF Manual.

Comment: The TCSA commented that the CSPF Manual's Operational Framework Indicator 3f improperly requires board members and school officers to have completed annually required charter board training by December 1, 2016, while 19 TAC §100.1102(b) and §100.1103(b) mandate that such training be completed within one calendar year of appointment or election.

Agency Response: The agency disagrees and provides the following clarification. The December 1, 2016, date in Operational Framework 3f is intended to establish greater timeline specificity for the authorizer. In addition, the compliance section on the Annual Governance Reporting Form asks individuals whether they have completed the annually required training and allows them the opportunity to provide an explanation if they have not yet completed the training by the December 1 submission date of the form. Therefore, the "Does Not Meet Expectations" box in Operational Framework Indicator 3f is not necessarily triggered by a "no" response on the Annual Governance Reporting Form.

Comment: TCSA commented that Operational Framework Indicators 3b, Program Requirements - Special Populations; 3c, Program Requirements - Bilingual Education/English as a Second Language Populations; and 3d, Program Requirements - Career and Technical Education Populations, should be moved from the Operational Framework Indicators to the Academic Framework Indicators.

Agency Response: The agency disagrees. Operational Framework Indicators 3b, 3c, and 3d are concerned with a charter school's overall maintenance of the programs, not with actual student achievement.

Comment: TCSA commented that the agency should reexamine the Financial Framework Indicator titles "Material Weaknesses in Internal Controls," "Default on Debt," and "Material Noncompliance" and the Operational Framework Indicator title "Criminal Record Employment Requirements." TCSA commented that these indicator titles, as represented on the report generated from application of the CSPF Manual, do not fully convey the purpose of the indicators and could cause confusion or alarm.

Agency Response: The agency disagrees. The names of the Financial and Operational Framework Indicators are necessarily condensed for presentation on the CSPF Report but have been designed to be as descriptive as possible. Furthermore, ratings for these indicators, such as a green checkmark and a red x, are sufficient for informing the public that a charter school's performance is or is not meeting the minimum criteria. In addition, the Financial Framework Indicators are aligned to the Financial Integrity Rating System of Texas for Charter Schools (Charter FIRST) indicators.

Comment: TCSA commented that it encouraged the agency to provide further explanation on the performance frameworks to ensure the public receives all necessary information to properly interpret the CSPF Report.

Agency Response: The agency agrees that public access to the CSPF Manual and Report is essential to ensure informed choice with regard to public schools in Texas. These documents will be available to the public from sources including the agency's website.

Comment: TCSA commented that Operational Framework Indicator 3a, Teacher Qualifications, may suggest a school is not hiring teachers with a baccalaureate degree simply because the school currently has a long-term substitute supporting a teacher on medical or family leave.

Agency Response: The agency provides the following clarification. 1) TEC, §12.129, and 19 TAC §100.1015(b)(3)(F)(ii) mandate that all teachers must have a baccalaureate degree. Charter schools may refer to their own local policies for qualifications of short-term substitutes and long-term substitutes. 2) Although Texas law allows charter schools flexibility with regard to educator qualifications, TEC, §12.130, requires that a charter school provide written notice of the qualifications of each teacher employed by the school. 3) The data source collected in the Texas Student Data System Public Education Information Management System (TSDS PEIMS) requires charter schools to report the teacher of record. Charter schools are expected to be compliant with each of these minimum requirements.

Comment: The University of Texas Charter School System, University of Houston Charter School, The University of Texas at Tyler Ingenuity Center, and UTPB STEM Academy commented that because charter schools operated by a public senior college or university are unique, those charter schools should be evaluated on a distinct set of performance measures. The commenters included a specific rule text recommendation that would add a new subsection (c) to address the applicability of performance measures to a charter school of a public senior college or university. The commenters also specifically noted that Indicators 5-10 of Charter FIRST are inaccurate measures of their schools' performances.

Agency Response: The agency agrees that charter schools operated by public senior colleges or universities are different from typical open-enrollment charter schools. Although the commenters' recommended new subsection (c) would provide for measures that are consistent with accountability standards for public senior colleges or universities, it is currently unclear what those standards are. For this reason, the agency disagrees with inclusion of the recommended new subsection (c) until the suggested language may be deemed consistent with general performance frameworks described by the authorizing statute.

Additionally, the commenters' reference to Indicators 5-10 of Charter FIRST is irrelevant because these indicators are outside the scope of the current rule proposal. None of the Charter FIRST indicators cited in the comment are sources of data used for the 2016 Performance Frameworks' financial indicators. The data sources for the 2016 Performance Frameworks' financial indicators are as follows.

The data source for Financial Framework Indicator 2a, Timely Submission of Annual Financial Report, is Charter FIRST Indicator 1.

The data source for Financial Framework Indicator 2b, Administrative Cost Ratio, is Charter FIRST Indicator 11.

The data source for Financial Framework Indicator 2c, Unmodified Opinions, is Charter FIRST Indicator 2A.

The data source for Financial Framework Indicator 2d, Material Weaknesses in Internal Controls, is Charter FIRST Indicator 2B.

The data source for Financial Framework Indicator 2e, Default on Debt, is Charter FIRST Indicator 3.

The data source for Financial Framework Indicator 2f, Total Variance, is Charter FIRST Indicator 13.

The data source for Financial Framework Indicator 2g, Material Noncompliance, is Charter FIRST Indicator 14.

STATUTORY AUTHORITY.

The amendment is adopted under the Texas Education Code, §12.1181, which requires the commissioner to develop and by rule adopt performance frameworks that establish standards by which to measure the performance of an open-enrollment charter school.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §12.1181.

§100.1010.Performance Frameworks.

(a) The performance of an open-enrollment charter school will be measured annually against a set of criteria set forth in the Charter School Performance Framework (CSPF) Manual established under Texas Education Code, §12.1181. The CSPF Manual will include measures for charters registered under the standard system and measures for charters registered under the alternative education accountability system as adopted under §97.1001 of this title (relating to Accountability Rating System).

(b) The assignment of performance levels for open-enrollment charter schools on the 2016 CSPF report is based on specific criteria, which are described in the 2016 Charter School Performance Framework Manual provided in this subsection.

Figure: 19 TAC §100.1010(b) (.pdf)

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 May 9, 2017.

TRD-201701920

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: May 29, 2017

Proposal publication date: November 25, 2016

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