TITLE 19. EDUCATION

PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

CHAPTER 1. AGENCY ADMINISTRATION

SUBCHAPTER A. GENERAL PROVISIONS

19 TAC §1.18

The Texas Higher Education Coordinating Board adopts amendments to Chapter 1, Subchapter A, §1.18, concerning the Operation of Education Research Centers, without changes to the proposed text as published in the June 19, 2020, issue of the Texas Register (45 TexReg 4133). The rule will not be republished.

Specifically, this amendment will allow for improved access to data for education researchers while maintaining controls for data security. By law, up to three Education Research Centers (ERCs) are authorized to operate in Texas. The ERCs are under the oversight of the THECB and are governed by an Advisory Board which meets at least quarterly and includes representation from the Texas Education Agency and the Texas Workforce Commission and each ERC, among others. Researcher proposals are reviewed and acted upon by the Advisory Board, and research must be of benefit to the state of Texas. The ERCs are self-funded.

Currently, researchers must access the P-16/Workforce Data Repository available through the ERCs by physically accessing special terminals at the ERC locations. The rule amendments would allow a researcher or researchers, when approved by the Advisory Board, to access the de-identified data approved for their project via remote access. Security guidelines for this access, including required Virtual Private Network (VPN) and multifactor authentication have been developed and approved by the ERC Advisory Board. All FERPA and other federal and state education privacy law requirements must be met, as stipulated by existing ERC law and rule.

There would be minimal costs to public institutions of higher education to adjust to the revised rules given the security measures that the authorized ERCs already have in place and the self-supporting nature of the Education Research Centers.

The following comments were received within the public comment period.

COMMENTS: Researchers commented in favor of the amendments to allow remote access to data at the Education Research Centers for researchers so approved. Researchers who submitted comments are affiliated with organizations and higher education institutions including the: Houston Education Research Consortium at Rice University, Yale University's Economics Department, the University of Michigan's Gerald R. Ford School of Public Policy, Michigan State University, and the University of California-Davis. Another researcher who submitted written testimony has prior affiliations with the Texas Education Agency and Texas State University. The comments and written testimony, all in favor of the rule change, centered on a few common themes.

Researchers anticipate the proposed rule changes will lead to increased use of the ERC data to address key policy questions across educational and workforce sectors since researchers will now have the potential to access the data remotely. Further, remote access can occur while maintaining the rigorous data security standards that already are in place under ERC onsite data access policies, without researchers having to travel or schedule time to use limited physical facilities onsite at the ERCs. In addition, risks and challenges due to the potential spread of COVID-19, while not expected to be long-term, can be mitigated for both researchers and ERC staff under approved remote access policies. Otherwise, many researchers' projects may remain on hold or even if restarted, may have to be halted again due to travel, shelter-in-place, safety, or other restrictions.

The proposed changes allow for enhanced ERC capacity and self-sufficiency without compromising researcher access to data or creating the need for ERCs to acquire more physical space, which were limitations even before the current pandemic restrictions began. Among the researchers who commented, there is agreement that the value of the ERC data holdings will increase, along with greater production of high-quality research focused on improving educational policy and practice and enhancing, thereby, the state's academic and workforce competitiveness. They also observed that some research studies have been funded from federal and foundation sources that also support ERC operations and staff, along with faculty and graduate students at universities hosting the ERCs. Thus, these changes in rule can foster the sustained presence of the ERCs in the long run, in addition to other statewide benefits.

Finally, in the written testimony that was submitted, it was noted that when the ERCs were created 13 years ago, VPN technology did not meet the desired standards for functionality and security that were deemed necessary to protect the confidentiality of the ERC data, which was of paramount concern. Thus, providing researchers physical access to the data onsite at an ERC under established policies and controls mitigated concerns about compromised data confidentiality that would have arisen in the early years with less secure, offsite VPN access. Under current VPN technology, functionality and security features are vastly improved, and the rule changes continue to reinforce the necessity for ERCs to train researchers on policies and procedures for ensuring that the confidentiality of the ERC data remains paramount in researcher use of the data, even when data are accessed remotely. In addition, while approved researchers will still pay fees to access ERC data, due to the self-sustaining nature of the ERCs, they no longer need to incur additional costs due to travel and time away from their organizations or academic institutions.

STAFF RESPONSE: Staff agree with the comments.

The amendment is adopted under the Texas Education Code, Title 1, Chapter 1, Sections 1.005 and 1.006. Section 1.005(b) authorizes the Coordinating Board to establish up to three Education Research Centers. Section 1.006 requires the establishment of an Advisory Board for the purpose of reviewing study or evaluation proposals and ensuring appropriate data use.

The amendments affect Texas Education Code, Sections 1.005 and 1.006.

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 27, 2020.

TRD-202003046

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Effective date: August 16, 2020

Proposal publication date: June 19, 2020

For further information, please call: (512) 426-6533


PART 2. TEXAS EDUCATION AGENCY

CHAPTER 62. COMMISSIONER'S RULES CONCERNING THE EQUALIZED WEALTH LEVEL

The Texas Education Agency (TEA) adopts the repeal of §62.1071 and an amendment to §62.1072, concerning the equalized wealth level. The repeal and amendment are adopted without changes to the proposed text as published in the April 24, 2020 issue of the Texas Register (45 TexReg 2631) and will not be republished.

The adopted repeal of §62.1071 removes outdated provisions. The adopted amendment to §62.1072 implements House Bill (HB) 3, 86th Texas Legislature, 2019, by adopting as part of the Texas Administrative Code (TAC) new manuals that describe the processes and procedures that TEA will use in the administration of the provisions of Texas Education Code (TEC), Chapter 49, and the fiscal, procedural, and administrative requirements that must be met by school districts subject to TEC, Chapter 49.

REASONED JUSTIFICATION: TEA has adopted the procedures contained in each yearly manual for districts subject to wealth equalization as part of the TAC since 2011. Manuals adopted for previous school years remain in effect with respect to those school years. Each school year's manual for districts subject to wealth equalization explains how districts subject to wealth equalization are identified; the fiscal, procedural, and administrative requirements those districts must meet; and the consequences for not meeting requirements. The manual also provides information on using the online Foundation School Program (FSP) System to fulfill certain requirements.

HB 3, 86th Texas Legislature, 2019, transferred, redesignated, and amended TEC, §41.006 as §49.006, authorizing the commissioner to adopt rules necessary for implementation of TEC, Chapter 49. Provisions from TEC, Chapter 41, Equalized Wealth Level, were transferred to TEC, Chapter 49, Options for Local Revenue Levels in Excess of Entitlement.

To align with changes made by HB 3, the title for 19 TAC Chapter 62 was changed from "Commissioner's Rules Concerning the Equalized Wealth Level" to "Commissioner's Rules Concerning Options for Local Revenue Levels in Excess of Entitlement."

The adopted repeal of §62.1071, Manual for Districts Subject to Wealth Equalization, removes outdated provisions from the 2016-2017 school year. The rule is obsolete.

The adopted amendment to §62.1072, Manual for Districts Subject to Wealth Equalization, 2017-2018 and 2018-2019 School Years, adopts in rule the official TEA publications Options and Procedures for Local Revenue in Excess of Entitlement 2019-2020 School Year as Figure: 19 TAC §62.1072(a) and Options and Procedures for Local Revenue in Excess of Entitlement 2020-2021 School Year as Figure: 19 TAC §62.1072(b). Additionally, the section title was changed from "Manual for Districts Subject to Wealth Equalization, 2017-2018 and 2018-2019 School Years" to "Options and Procedures for Local Revenue in Excess of Entitlement, 2019-2020 and 2020-2021 School Years."

Significant changes addressed in the new publications are as follows.

Chapter 41 Provisions

TEC, Chapter 41, was renumbered to TEC, Chapter 49, and amended by HB 3, 86th Texas Legislature, 2019.

Early Agreement Credit Provision

Districts purchasing attendance credits from the state in accordance with former TEC, Chapter 41, Subchapter D (Option 3), were able to obtain a discount in the form of an early agreement credit in accordance with former TEC, §41.098. The discount was limited to 4.0% of the computed cost of Option 3 before any discounts were applied or $80 multiplied by the number of weighted average daily attendance (WADA) purchased, whichever was less. To qualify, the district subject to the provisions of TEC, Chapter 41, was to submit a signed Option 3 agreement to TEA with a postmark on or before September 1 of the applicable year. TEC, §41.098, was repealed by HB 3, and no equivalent provision was enacted in TEC, Chapter 49. Therefore, this provision will not continue.

Current Year Values

As established in TEC, §48.269, this determination is based on estimates of enrollment for school year 2019-2020 and estimated property values for tax year 2019. Because TEA does not yet have final state certified property values for tax year 2019, it is using 2018 state certified property values increased by 5.76%, in accordance with the 2020-2021 General Appropriations Act, as a proxy for tax year 2019.

Netting Provision

TEC, §41.0041, which provided certain districts the option of authorizing the commissioner to withhold state aid in lieu of holding an election, was repealed. However, provisions in TEC, §48.257(c), allow districts to offset the reduction of excess local revenue against TEC, Chapter 48, Subchapter F, funds. All districts will have the option to use state aid calculated under TEC, Chapter 48, Subchapter F, as an offset to their attendance credit for purposes of reducing their local revenue level. Districts using this option are required to submit the district intent/choice selection form and complete an Option 3 netting contract.

92-93 Hold Harmless Provision

The Chapter 41 hold harmless provision allowed a district to retain more wealth than it would otherwise keep at the equalized wealth level (EWL). A district was eligible for this provision if the revenue per WADA generated by applying a $1.17 rate to the tax base at the EWL was less than what the district's revenue per WADA was in 1992-1993. This provision, which allowed a district to keep a higher tax base, referred to as the hold harmless tax base, so that its 1992-1993 revenue per WADA was maintained, was repealed by HB 3.

HB 3 created the Equalized Wealth Transition Grant, which will be phased out over the next five years. A school district is entitled to receive an annual allotment in an amount equal to the amount of additional revenue a school district received for the 2018-2019 school year under former TEC, §41.002. Beginning in school year 2020-2021, estimates of local property values for the current year will be collected from districts for use in determinations for districts with local revenue levels in excess of entitlement.

For purposes of calculating a district's allotment under the Equalized Wealth Transition Grant, the amount to which a district is entitled will be reduced by 20% for the 2020-2021 school year; 40% for the 2021-2022 school year; 60% for the 2022-2023 school year; and 80% for the 2023-2024 school year.

The adopted amendment addresses new and revised provisions as applicable in the publication for each school year, Figure: 19 TAC §62.1072(a) for the 2019-2020 school year and Figure: 19 TAC §62.1072(b) for the 2020-2021 school year.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began April 24, 2020, and ended June 8, 2020. No public comments were received.

19 TAC §62.1071

STATUTORY AUTHORITY. The repeal is adopted under Texas Education Code (TEC), §49.006, which authorizes the commissioner of education to adopt rules necessary for the implementation of TEC, Chapter 49, Options for Local Revenue Levels in Excess of Entitlement.

CROSS REFERENCE TO STATUTE. The repeal implements Texas Education Code, §49.006.

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 22, 2020.

TRD-202002997

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: August 11, 2020

Proposal publication date: April 24, 2020

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


19 TAC §62.1072

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §49.006, which authorizes the commissioner of education to adopt rules necessary for the implementation of TEC, Chapter 49, Options for Local Revenue Levels in Excess of Entitlement.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §49.006.

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 22, 2020.

TRD-202002998

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: August 11, 2020

Proposal publication date: April 24, 2020

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


CHAPTER 101. ASSESSMENT

SUBCHAPTER CC. COMMISSIONER'S RULES CONCERNING IMPLEMENTATION OF THE ACADEMIC CONTENT AREAS TESTING PROGRAM

DIVISION 1. IMPLEMENTATION OF ASSESSMENT INSTRUMENTS

19 TAC §101.3011

The Texas Education Agency adopts an amendment to §101.3011, concerning the implementation and administration of academic content area assessment instruments. The amendment is adopted without changes to the proposed text as published in the May 8, 2020 issue of the Texas Register (45 TexReg 3009) and will not be republished. The adopted amendment modifies the rule to clarify testing requirements for accelerated students who have completed end-of-course (EOC) assessments before entering high school.

REASONED JUSTIFICATION: Section 101.3011 addresses state and federal requirements relating to the implementation and administration of academic content area assessment instruments. The adopted amendment to 19 TAC §101.3011 clarifies state and federal testing requirements relating to accelerated students.

In alignment with federal testing and accountability requirements, all students are required to be tested at least once in high school. To satisfy federal requirements, students who complete their state required EOC assessments before entering high school are now required to take the ACT® or SAT®. In accordance with House Bill 3, 86th Texas Legislature, 2019, Texas Education Code (TEC), §39.0261(a)(3)(A), College Preparation Assessment, now provides for students to take a nationally norm-referenced assessment used by colleges and universities one time during high school at state cost. The scores of these tests will be used for federal accountability purposes if a student has completed EOC assessments prior to entering high school.

The adopted amendment adds new subsection (a)(2) to require students in Grades 3-8 who are accelerated and are on track to complete EOC assessment requirements prior to entering high school to take either the ACT® or SAT® at least once in high school for federal accountability purposes. District may choose to have these students test between January of Grade 11 through graduation at state cost in accordance with TEC, §39.0261(a)(3)(A).

The adopted amendment deletes language that references the previous statewide assessment program, the Texas Assessment of Knowledge and Skills (TAKS). With the implementation of Senate Bill (SB) 463 and SB 1005, 85th Texas Legislature, Regular Session, 2017, TAKS is no longer administered. As such, this language is no longer applicable.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began May 8, 2020, and ended June 22, 2020. Following is a summary of public comments received and corresponding agency responses.

Comment: The Texas School Alliance (TSA) and the College Board both agreed with the proposed amendment, indicating that it will benefit students.

Response: The agency agrees.

Comment: TSA requested that clarification be added regarding testing requirements for students who are accelerated by more than one grade level.

Response: The agency disagrees that clarification is needed regarding students who are accelerated by more than one grade level. TEC, §39.023(a), and §101.3011(a)(1) require all students to be tested on grade level unless the student is accelerated and taking a corresponding test. In most cases, students who are accelerated by more than one grade level do not have a corresponding test to take. Therefore, these students must take their enrolled grade level assessment. This testing policy has been included in testing manuals and has not changed.

Comment: TSA requested modifying the amendment to indicate how and when ACT® and SAT® scores would be used for accountability.

Response: This comment is outside the scope of the proposed rulemaking since accountability reporting requirements are not addressed in §101.3011.

Comment: TSA requested that Advanced Placement (AP) and International Baccalaureate (IB) exams be included to provide accelerated students more testing options in high school.

Response: The agency disagrees. Although including AP and IB exams would provide accelerated students more testing options, ACT® and SAT® were identified for this purpose to alleviate the financial burden of testing from students and districts. TEC, §39.0261(a)(3)(A), provides for high school students to take once at state cost a nationally norm-referenced assessment used by colleges as part of their undergraduate admissions process.

Comment: An educator expressed concern about the increased burden to school districts to track these students.

Response: The agency provides the following clarification. Annually, the agency plans to provide districts with a list of accelerated students who have completed EOC assessments by the end of Grade 8 and who do not have a corresponding ACT® or SAT® score on file.

Comment: An educator expressed concern about the cost to the state.

Response: The agency provides the following clarification. Funding for reimbursement under §101.3001 was allocated by HB 3, 86th Texas Legislature, 2019, through TEC, §48.155, College Preparation Assessment Reimbursement.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §28.0211(o) and (p), which provide that accelerated students in Grades 5 and 8 are not required to take their grade-level assessment and may not be denied promotion based on their performance on an advanced assessment; TEC, §39.023(a), (a-2), (b), (c), and (l), which specify the required testing for students in Grades 3-8, accelerated students, students who are significantly cognitively disabled, students enrolled in high school courses, and students whose primary language is Spanish, respectively; TEC, §39.0238, which establishes Algebra II and English III EOC assessments as measures of postsecondary readiness; TEC, §39.0261(a)(3)(A), which provides for high school students to take a nationally norm-referenced assessment one time at state cost; and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, §1111(b)(2)(C), which allows states to exempt Grade 8 students from their grade-level mathematics assessment and instead take and use a score from the state's EOC mathematics assessment for accountability purposes as long as a more advanced assessment is taken to fulfill accountability requirements in high school.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §§28.0211(o) and (p); 39.023(a), (a-2), (b), (c), and (l); 39.0238; and 39.0261(a)(3)(A); and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, §1111(b)(2)(C).

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 22, 2020.

TRD-202002996

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: August 11, 2020

Proposal publication date: May 8, 2020

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