PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD
CHAPTER 1. AGENCY ADMINISTRATION
SUBCHAPTER C. STANDARDS OF CONDUCT
The Texas Higher Education Coordinating Board (Coordinating Board) adopts repeal of Title 19, Part 1, Chapter 1, Subchapter C, Standards of Conduct, §§1.80 - 1.87, without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 277). The rules will not be republished.
The adopted repeal of existing Subchapter C and, via separate rulemaking, the re-adoption make minor substantive amendments to the rule to set out the parameters of the agency and Board's relationship with its official non-profit partner, the Texas Higher Education Foundation. Additional minor conforming edits further explain the processes for the acceptance of gifts and donations to the agency that align with Texas law, and re-adopt the ethical boundaries by which the Board and employees govern themselves.
No comments were received regarding the adoption of the repeal.
The repeal is adopted under Texas Education Code, Section 61.068, which provides the Coordinating Board with the authority to accept gifts and donations. The repeal is further adopted pursuant to the authority of Texas Government Code chapters 575 and 2255.001.
The adopted repeal affects Texas Education Code, Sections 61.089, 61.5361, 61.5391, 61.609, 61.658, 61.707, 61.793, 61.867, 61.885, 61.907, 61.957, 61.9608, 61.9625, 61.9657, 61.9704, 61.9728, 61.9755, 61.9776, 61.9795, 61.9805, 61.9818, 61.9827, 61.9837, 61.9858, and 61.9965.
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 April 28, 2023.
TRD-202301539
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6297
The Texas Higher Education Coordinating Board (Coordinating Board) adopts new rules in Title 19, Part 1, Chapter 1, Subchapter C, Acceptance of Gifts and Donations by Board and Employees, §§1.80 - 1.87, without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 278). The rules will not be republished.
The adopted new rules update the Board's ethics policies to reflect current agency practice, demonstrate compliance with current state law, and implement state governance best practices.
Rule 1.80 sets out the scope and purpose of the rules, which is to comply with applicable provisions of state law, ensure compliance with ethics best practices, and properly govern the relationship between the Board and its official non-profit partner organization, the Texas Higher Education Foundation, which has supported the Board's mission and initiatives since 2001.
Rule 1.81 sets out the definitions used in the rules, including updating the name of the Texas Higher Education Foundation.
Rule 1.82 governs the relationship of the Texas Higher Education Foundation (Foundation) with the board and designates it as the official nonprofit partner of the Board. This rule implements ethical best practices and specifies the control that each the Foundation and Board may have with one another.
Rule 1.83 specifies how the Board may spend gifts and donations consistent with state law.
Rule 1.84 provides for the donation of gifts to the Board from private donors. Subsection (b) also specifies that the relationship between the Board and Foundation shall be established in a Memorandum of Understanding, consistent with the current relationship.
Rule 1.85 sets out what support the Foundation may offer the Board and the support the Board may use to further the purposes of the Foundation. These limitations are specified in rule to avoid conflicts of interest, create transparency, and ensure that the relationship with the Board's official non-profit support organization remains consistent with state law. The means of support and relationship are set out in the Memorandum of Understanding, as described in the rule.
Rules 1.86 and 1.87 establish the methods by which the Board members will avoid prohibit conflicts of interest consistent with Government Code 575 and best practices.
No comments were received regarding the adoption of the new rules.
The new sections are adopted under Texas Education Code, Section 61.068, which provides the Coordinating Board with the authority to accept gifts and donations. The rule is further adopted pursuant to the authority of Texas Government Code chapters 575 and 2255.001.
The adopted new sections affect Texas Education Code, Sections 61.089, 61.5361, 61.5391, 61.609, 61.658, 61.707, 61.793, 61.867, 61.885, 61.907, 61.957, 61.9608, 61.9625, 61.9657, 61.9704, 61.9728, 61.9755, 61.9776, 61.9795, 61.9805, 61.9818, 61.9827, 61.9837, 61.9858, and 61.9965.
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 April 28, 2023.
TRD-202301538
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6297
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 1, Subchapter O, Learning Technology Advisory Committee, §1.188 and §1.190 without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 280). The rules will not be republished.
Texas Education Code, §61.026 authorizes the Coordinating Board to appoint advisory committees as considered necessary. The amendment extends the abolishment date of the current Learning Technology Advisory Committee and updates tasks assigned to the Committee to align with other proposed amendments to the Texas Administrative Code relating to distance education.
Rule 1.188, Duration, contains the abolishment date of the Learning Technology Advisory Committee, which will be extended to April 27, 2028.
Rule 1.190, Tasks Assigned to the Committee, lists the responsibilities of the Learning Technology Advisory Committee. The amendments clarify how those responsibilities will shift to align with proposed changes to distance education program approval processes in Chapter 2, Subchapter J: §1.190(1) removes the responsibility of the Committee to analyze duplication of distance education programs in the state; §1.190(2) amends the Committee's scope for development of policy recommendations to the Board by including the development of affordable learning materials such as open educational resources (§1.190(2)(B)), and the review and update of the Principles of Good Practice for Distance Education (§1.190(2)(C)); and §1.190(3) adds the review and provision of recommendations on Institutional Plans for Distance Education to the responsibilities of the Committee, while removing the task of reviewing and providing recommendations on distance education doctoral programs.
No comments were received regarding the adoption of the amendments.
The amendment is adopted under Texas Education Code, Section 61.0512(g), which provides the Coordinating Board with the authority to approve distance learning courses at institutions of higher education.
The adopted amendment affects Texas Education Code Section 61.0512(g).
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 April 28, 2023.
TRD-202301541
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6284
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 2, Subchapter A, General Provisions, §2.3, with changes to the proposed text as published in the December 16, 2022, issue of the Texas Register (47 TexReg 8198). The rule will be republished. Changes correct a point of grammar and include section references. The rule will be republished.
The adopted amendment inserts definitions necessary for establishing a revised approval process for associate degrees. These definitions recognize two categories of associate degrees: academic associate degrees, which are associate degrees intended to prepare graduates to study for a bachelor's degree, and applied associate degrees, which prepare students for direct entry into the workforce. The amendment to the Texas Administrative Code has continuity with existing definitions in current rules and widespread industry usages of these terms.
No comments were received regarding the adoption of the amendments.
The amendment is adopted under Texas Education Code, §61.0512, which states that a public institution of higher education may not offer a new degree or certificate program without Coordinating Board approval, and Texas Education Code, §130.001, which provides the Coordinating Board with the authority to adopt policies and establish general rules necessary to carry out statutory duties with respect to public junior colleges.
The adopted amendment affects Texas Education Code, §61.003(12), which contains a definition of "certificate program" that also encompasses associate degrees.
§2.3.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings:
(1) Academic Associate Degree--A type of degree program generally intended to transfer to an upper-level baccalaureate program that will satisfy the lower-division requirements for a baccalaureate degree in a specific discipline. The Academic Associate Degree includes, but is not limited to, the Associate of Arts (A.A.), Associate of Science (A.S.). or Associate of Arts in Teaching (A.A.T.) degrees.
(2) Academic Course Guide Manual (ACGM)--The manual that provides the official list of approved courses for general academic transfer to public universities offered for funding by public community, state, and technical colleges in Texas.
(3) Academic Program or Programs--A type of credential primarily consisting of course content intended to prepare students for study at the bachelor's degree or higher.
(4) Administrative Unit--A department, college, school, or other unit at an institution of higher education, which has administrative authority over degree or certificate programs.
(5) Applied Associate Degree--A type of degree program designed to lead the individual directly to employment in a specific career. The Applied Associate Degree Program includes, but is not limited to, the Associate of Applied Arts (A.A.A.) or Associate of Applied Science (A.A.S.).
(6) Applied Baccalaureate Degree Program--Builds on an Associate of Applied Science (A.A.S.) degree, combined with enough additional core curriculum courses and upper-level college courses to meet the minimum semester credit hour requirements for a bachelor's degree. The degree program is designed to grow professional management skills of the learner and meet the demand for leadership of highly technical professionals in the workplace. May be called a Bachelor of Applied Arts and Science (B.A.A.S.), Bachelor of Applied Technology (B.A.T.) or Bachelor of Applied Science (B.A.S.).
(7) Board--The governing body of the agency known as the Texas Higher Education Coordinating Board.
(8) Board Staff--Staff of the Texas Higher Education Coordinating Board who perform the Texas Higher Education Coordinating Board's administrative functions and services.
(9) Career Technical/Workforce Program--An applied associate degree program or a certificate program for which semester credit hours, quarter credit hours, or continuing education units are awarded, and which is intended to prepare students for immediate employment or a job upgrade in a specific occupation.
(10) Certificate program--Unless otherwise specified in these rules for the purpose of this chapter, certificate means a grouping of subject-matter courses which, when satisfactorily completed by a student, will entitle the student to a certificate or documentary evidence, other than a degree, of completion of a course of study at the postsecondary level. Under this chapter, certificate includes a post-baccalaureate certificate, and excludes an associate degree unless otherwise provided.
(11) CIP Codes--See "Texas Classification of Instructional Programs (CIP) Coding System."
(12) Commissioner--The Commissioner of Higher Education.
(13) Contact hour--A time unit of instruction used by community, technical, and state colleges consisting of 60 minutes, of which 50 minutes must be direct instruction.
(14) Continuing Education Unit (CEU)--Basic unit for continuing education courses. One continuing education unit (CEU) is 10 contact hours of participation in an organized continuing education experience under responsible sponsorship, capable direction, and qualified instruction.
(15) Credential--A grouping of subject matter courses or demonstrated mastery of specified content which entitles a student to documentary evidence of completion. This term encompasses certificate programs, degree programs, and other kinds of formal recognitions such as short-term workforce credentials or a combination thereof.
(16) Degree Program--Any grouping of subject matter courses which, when satisfactorily completed by a student, will entitle that student to an associate's, bachelor's, master's, doctoral, or professional degree.
(17) Degree Title--Name of the degree and discipline under which one or more degree programs may be offered. A degree title usually consists of the degree designation (e.g., Bachelor of Science, Master of Arts) and the discipline specialty (e.g., History, Psychology).
(18) Doctoral Degree--An academic degree beyond the level of a master's degree that typically represents the highest level of formal study or research in a given field.
(19) Embedded Credential--A course of study enabling a student to earn a credential that is wholly embedded within a degree program.
(20) Field of Study Curriculum--A set of courses that will satisfy lower-division requirements for an academic major at a general academic teaching institution, as defined in chapter 4, subchapter B, §4.23(7) of this title (relating to Definitions).
(21) Master's Degree Program--The first graduate level degree, intermediate between a Baccalaureate degree program and Doctoral degree program.
(22) New Content--As determined by the institution, content that the institution does not currently offer at the same instructional level as the proposed program. A program with sufficient new content to constitute a 'significant departure' from existing offerings under 34 CFR §602.22(a)(1)(ii)(C) meets the 50% new content threshold.
(23) Pilot Institution--Public junior colleges initially authorized to offer baccalaureate degrees through the pilot initiative established by SB 286 (78R - 2003). Specifically, the four pilot institutions are Midland College, South Texas College, Brazosport College, and Tyler Junior College.
(24) Planning Notification--Formal notification that an institution intends to develop a plan and submit a degree program proposal or otherwise notify the Board of intent to offer a new degree program.
(25) Professional Degree--Certain degree programs that prepare students for a career as a practitioner in a particular profession, including certain credential types that are required for professional licensure. For the purpose of this chapter, the term refers specifically to the following degrees: Doctor of Medicine (M.D.), Doctor of Osteopathy (D.O.), Doctor of Dental Surgery (D.D.S.), Doctor of Podiatric Medicine (D.P.M.), Doctor of Veterinary Medicine (D.V.M.) and Juris Doctor (J.D.).
(26) Program Inventory--The official list of all degree and certificate programs offered by a public community college, university, or health-related institution, as maintained by Board Staff.
(27) Public Health-Related Institution--Public health-related institutions that are supported by state funds.
(28) Public Junior College--A public institution of higher education as defined in Tex. Educ. Code §61.003(2).
(29) Public Two-year College--Any public junior college, public community college, public technical institute, or public state college as defined in Tex. Educ. Code §61.003(16).
(30) Public University--A general academic teaching institution as defined by Tex. Educ. Code §61.003(3).
(31) Semester Credit Hour, or Credit Hour--A unit of measure of instruction consisting of 60 minutes, of which 50 minutes must be direct instruction, over a 15-week period in a semester system or a 10-week period in a quarter system.
(32) Texas Classification of Instructional Programs (CIP) Coding System--The Texas adaptation of the federal Classification of Instructional Programs taxonomy developed by the National Center for Education Statistics and used nationally to classify instructional programs and report educational data. The 8-digit CIP codes define the authorized teaching field of the specified program, based upon the occupation(s) for which the program is designed to prepare its graduates.
(33) Texas Core Curriculum--Curriculum required at each institution of higher education students are required to complete as required by 19 TAC §4.23(3).
(34) Texas Success Initiative (TSI)--A comprehensive program of assessment, advising, developmental education, and other strategies to ensure college readiness. The TSI Assessment shall be the sole assessment instrument as specified in 19 TAC §4.56 of this title (relating to Assessment Instrument). The passing standards for the authorized TSI Assessment are established in 19 TAC §4.57 of this title (relating to College Ready Standards).
(35) Tracks of Study--Specialized areas of study within a single degree program.
(36) Transcriptable Minor--A transcriptable minor is a group of courses around a specific subject matter marked on the student's transcript. The student must declare a minor for the minor to be included on the student's transcript. The student cannot declare a minor without also being enrolled in a major course of study as part of a baccalaureate degree program.
(37) Workforce Education Course Guide Manual (WECM)--An online database composed of the Board's official statewide inventory of career technical/workforce education courses available for two-year public colleges to use in certificate and associate degree programs.
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 April 28, 2023.
TRD-202301542
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: December 16, 2022
For further information, please call: (512) 427-6182
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 2, Subchapter A, General Provisions, §2.9, without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 281). The rules will not be republished.
Texas Education Code §61.0512(g) authorizes the Coordinating Board to approve courses offered through distance education. Board staff has developed a revised approval process that provides for conferring distance education approval at the institutional level, maintaining the requirement that institutions notify Board staff of intent to implement a new distance education program. The rules conform to this new process, and issue further clarification that this process does not apply to changes to a program's physical location or site. These amendments do not change current processes, as institutions must currently notify the Coordinating Board of changes to distance education programs.
Rule 2.9, Revisions and Modifications to an Approved Program, contains the procedures institutions must follow to request a revision or modification to a certificate or degree program that already has Coordinating Board approval. The amendments clarify how the Coordinating Board will process changes to a program's modality of delivery: subsection 2.9(a)(1) more clearly states that Assistant Commissioner approval applies to the entire relocation of a program; subsection (c)(3) notes that only requests for off-campus face-to-face programs fall within the non-substantive revisions and modifications category; and section 2.9(e) explains the change categories that qualify for Notification Only approval, including program delivery through distance education. This level of approval aligns Chapter 2, Subsection A, with proposed new changes to distance education program approval processes in Chapter 2, Subsection J.
No comments were received regarding the adoption of the amendments.
The amendment is adopted under Texas Education Code, Section 61.0512(g), which provides the Coordinating Board with the authority to approve distance learning courses at institutions of higher education.
The adopted amendment affects Texas Education Code §61.0512(g).
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 April 28, 2023.
TRD-202301543
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6284
The Texas Higher Education Coordinating Board adopts new rules in, Title 19, Part 1, Chapter 2, Subchapter J, Approval of Distance Education for Public Institutions, §§2.200 - 2.207, without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 283). The rules will not be republished.
Texas Education Code (TEC), Section 61.0512(g), provides the Coordinating Board with the authority to approve distance learning courses at institutions of higher education. Specifically, this new section amends definitions of distance education courses and programs and revises the approval process for public institutions seeking to offer distance education. At a later date, the Coordinating Board intends to repeal existing Distance Education rules located in TAC Chapter 4, Subchapter P, which will be superseded by these rules.
Rule 2.200, Purpose, states the intention of the subchapter to establish rules for all public institutions of higher education in Texas regarding the delivery of distance education.
Rule 2.201, Authority, established the statutory authority for the subchapter in TEC Section 61.0512(g).
Rule 2.202, Definitions, provides the meanings of terms used in the subchapter, including new definitions for 100-Percent Online Course, Hybrid Course, 100-Percent Online Program, and Hybrid Program. These definitions bring Coordinating Board rules in closer alignment with standard practices in the industry.
Rule 2.203, Applicability of Subchapter, specifies that the subchapter applies to institutions seeking to offer one or more Credit Courses and does not govern course eligibility for funding. While non-credit courses and programs offered through distance education may not be subject to the approval or notification requirements of the chapter, they will still be eligible for formula reimbursement through the proposed TAC Chapter 13, Subchapter O.
Rule 2.204, Distance Education Standards and Criteria; the Principles of Good Practice for Distance Education, explains the Principles of Good Practice for Distance Education and their relevance to distance education delivery, details the contents of the Principles of Good Practice for Distance Education, and describes the process for Board approval of the Principles of Good Practice for Distance Education. This process ensures that the Coordinating Board will use a standard, Board-approved rubric for evaluating institutions' ability to deliver quality distance education.
Rule 2.205, Institutional Plan for Distance Education, explains the purpose of the Institutional Plan for Distance Education and its relation to Board approval for an institution to offer distance education courses. This rule also details the process to review and approve Institutional Plans for Distance Education, which includes Coordinating Board staff and Learning Technology Advisory Committee review and recommendations prior to final approval. This process ensures that each public institution of higher education will have its distance education processes and administration evaluated against the standard Principles of Good Practice for Distance Education, as adopted by the Board, on a regular basis; institutions facing a potential denial from the Commissioner have the opportunity to appeal to the Board. Institutions with an Institutional Plan for Distance Education in good standing or on provisional status with the Coordinating Board have authorization to offer distance education instruction under TEC Section 61.0512(g).
Rule 2.206, Distance Education Degree or Certificate Program Notification, describes the process for institutional notification to Board staff prior to offering an existing program via distance modality or offering a new distance education program. New programs must also follow program approval request rules as detailed in the appropriate subchapter. This provision ensures that the Coordinating Board's existing Distance Education Program Inventory will remain up-to-date, accurately reflecting the distance education program offerings across the state.
Rule 2.207, Effective Date of Rules, establishes the effective date of the subchapter as December 1, 2023, and provides for a pause in the review of distance education doctoral programs by the Learning Technology Advisory Committee.
Dr. Michelle Singh, Assistant Commissioner for Digital Learning, has determined that for each of the first five years the sections are in effect there would be no fiscal implications for state or local governments as a result of enforcing or administering the rules. There are no estimated reductions in costs to the state and to local governments as a result of enforcing or administering the rule. There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rule.
No comments were received regarding the adoption of the new rules.
The new sections are adopted under Texas Education Code, Section 61.0512(g), which provides the Coordinating Board with the authority to approve distance learning courses at institutions of higher education.
The adopted new sections affect Texas Education Code, Section 61.0512(g).
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 April 28, 2023.
TRD-202301545
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6284
SUBCHAPTER A. REQUIREMENTS FOR CERTAIN INCIDENTS OF SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING VIOLENCE, OR STALKING AT CERTAIN PUBLIC AND PRIVATE INSTITUTIONS OF HIGHER EDUCATION; AUTHORIZING ADMINISTRATIVE PENALTIES
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 3, Subchapter A, Requirements for Certain Incidents of Sexual Harassment, Sexual Assault, Dating Violence, or Stalking at Certain Public and Private Institutions of Higher Education; Authorizing Administrative Penalties, §3.19, without changes to the proposed text as published in the February 3, 2023, issue of the Texas Register (48 TexReg 453). The rule will not be republished.
The prior rule only specified the statutory maximum for an administrative penalty. Adding a matrix provides clarity and guidance to Coordinating Board staff and affected institutions. Texas Education Code (TEC), Chapter 51, Sections 51.259 and 51.295 allow the Coordinating Board to adopt rules as necessary to implement and enforce TEC Chapter 51, Subchapters E-2 and E-3. The Coordinating Board used negotiated rulemaking procedures in developing the revisions.
Rule 3.19(a), Compliance, adds the specific due date for each postsecondary educational institution to annually certify in writing to the Coordinating Board that it is in substantial compliance with Texas Education Code, Chapter 51, Subchapter E-2. This revision adds clarity to the reporting requirement. The previous statutory requirement only specified annual certification. The rules initially specified a month. To ensure all postsecondary educational institutions have the same understanding of the due date, a specific date was added. This date was chosen in order for the Coordinating Board to fulfill its obligation to report on substantial compliance of postsecondary educational institutions during the preceding calendar year.
Rule 3.19(b), Compliance, is a new section stating that the Coordinating Board shall conduct a risk-based compliance monitoring of Texas Education Code, Chapter 51, Subchapters E-2 and E-3. The new section provides details on the risk factors under which the review will be undertaken and the report template which will be provided to institutions. As the Coordinating Board was charged with reporting on substantial compliance by postsecondary educational institutions, this section was added to provide guidance on the risk factors that the Coordinating Board staff would utilize in its review for substantial compliance.
Rule 3.19(c), Compliance, is a renumbered section. The section clarifies the statutory requirements effective dates, and that the statutory penalty amount may be assessed annually. The section addresses the effect of substantial compliance and the Coordinating Board's independent evaluation of evidence on the penalty assessment. The effective dates for each statutory subchapter are listed in the statute and clarified in the rule. Specifically stating that the statutory penalty could be assessed annually was the result of the negotiated rulemaking committee's acknowledgement that ongoing or separate non-compliance should not be included in a one-time penalty that could never be assessed again. The negotiated rulemaking committee also agreed that, per the statute, if a postsecondary educational institution was found in substantial compliance, no penalty assessment would be made.
Rule 3.19(d), Compliance, is a new section detailing how the Coordinating Board will determine an institution's or system's good faith effort to remain in substantial compliance. Factors for evaluation are provided in this section. As the Coordinating Board was charged with reporting on substantial compliance by postsecondary educational institutions, this section was added to provide guidance on the factors that the Coordinating Board staff would utilize in its review to determine an institution's or system's good faith efforts to be in substantial compliance.
Rule 3.19(e), Compliance, is a renumbered section that replaces the current language with new language. The section states that failure to file the annual certification by October 31 of each year will result in a $2000 penalty per day of violation. The section allows a one month cure period whereby the penalty will not be assessed. The penalty also allows an institution to file a good faith correction to a previously filed certification within a reasonable time. As each postsecondary educational institution is statutorily-required to file an annual certification and the due date has been clarified, this section was added to provide for a specific penalty amount within the statutory amount which would result if the annual certification was not timely filed and how the late filing could be cured, resulting in no late filing penalty.
Rule 3.19(f), Compliance, is a new section, providing a penalty matrix for the annual penalty assessment if an institution fails to maintain substantial compliance with Texas Education Code, Chapter 51, Subchapters E-2 or E-3. The section provides details on what the Coordinating Board will consider when assessing penalties, including the number of students at an institution, mitigating factors, aggravating factors, and other factors justice may require. The penalty matrix breaks down penalty amounts by sections of Subchapters E-2 and E-3. The statute allows for an administrative penalty in an amount not to exceed $2 million in both Subchapters E-2 and E-3 but does not give additional guidance on how to make the penalty amount determination. Through the negotiated rulemaking process, this section was added to give postsecondary educational institutions a framework for the possible amounts to be administratively assessed and factors which might increase or decrease the total amount assessed.
Rule 3.19(g), Compliance, is a renumbered section that replaces the current language with new language. The section requires the Coordinating Board to provide a written notice to an institution for its reason for assessing an administrative penalty. This requirement was moved from the existing section (c) of the rule to this section and clarifies that it refers to another section within the rule and follows the statutory requirement to provide written notice.
Rule 3.19(h), Compliance, is a renumbered section that replaces the current language with new language. The section provides for institutional appeal of an assessed administrative penalty and allows the Coordinating Board to enter a final decision and order after a contested case proceeding. The section clarifies the statutory right to appeal a penalty assessment and affirmatively states that the Coordinating Board will enter a final decision after a contested case proceeding.
Rule 3.19(i), Compliance, states that an institution may not pay an administrative penalty assessed under this rule using state-appropriated or federal money. This language was moved from another rule section and the rule prohibition follows the statutory prohibition against state or federal money.
Rule 3.19(j), Compliance, requires the Coordinating Board to deposit an assessed administrative penalty to the credit of the sexual assault program fund established under Section 420.008, Texas Government Code. This language was moved from another rule section and the requirement to deposit administrative penalty funds follows the statutory requirement to deposition to the credit of an established sexual assault program fund.
Rule 3.19(k), Compliance, provides for an annual report to the governor, lieutenant governor, the speaker of the house of representatives, and the standing legislature committees with primary jurisdiction over legislation concerning sexual assault at postsecondary educational institutions. The report is to include a summary of institutions found not to be in substantial compliance and any penalties assessed during the preceding calendar year. This language was moved from another rule section and the annual report submission follows the statutory requirement to report substantial compliance of postsecondary educational institutions to the governor, lieutenant governor, the speaker of the house of representatives, and the standing legislature committees with primary jurisdiction over legislation concerning sexual assault at postsecondary educational institutions.
No comments were received regarding the adoption of the amendments.
The amendment is adopted under Texas Education Code, Sections 51.259 and 51.295 which provide the Coordinating Board with the authority to adopt rules as necessary to implement and enforce TEC, Chapter 51, Subchapters E-2 and E-3.
The adopted amendment affects Texas Administrative Code, Title 19, Part 1, Chapter 3, §3.19.
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 April 28, 2023.
TRD-202301546
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: February 3, 2023
For further information, please call: (512) 427-6209
SUBCHAPTER Q. APPROVAL OF OFF-CAMPUS AND SELF-SUPPORTING COURSES AND PROGRAMS FOR PUBLIC INSTITUTIONS
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 4, Subchapter Q, Approval of Off-Campus and Self-Supporting Courses and Programs for Public Institutions, §4.279(b), without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 286). The rule will not be republished.
The amendment to Texas Administrative Code (TAC) §4.279(b) is adopted to provide an exception for courses taught as part of a Texas public community college program offered at a regional airport located no more than five miles across a state line, provided the regional airport is located in the same Metropolitical Area as the Texas college offering the program, serves Texas residents, and supports the Texas region's economy.
The following comment was received regarding adoption of the amendment:
Comment: An institution requested that the requirement for institutions to charge fees that are "equal to or greater than Texas resident tuition and fees" be stricken from Section §4.279(f) to allow an institution that is able to cover the total cost of instruction and fees for less than the applicable resident tuition and fee rates may do so in order to compete in the national online marketplace.
Response: This comment pertains to charges for certain courses not submitted for formula funding, such as self-supporting programs. The rules pertaining to self-supporting programs will be addressed in a future revision of the program approval rules.
The amendment is adopted under Texas Education Code, Section 61.0512(g), which provides the Coordinating Board with the authority to approve courses for credit and distance education programs, including off-campus programs. The amendment is also adopted under Texas Education Code, Section 130.003 which provides contact hour funding for community colleges.
The adopted amendment affects Texas Education Code § 130.003 and 19 Texas Administrative Code, Chapter 9, Subchapter F.
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 April 28, 2023.
TRD-202301549
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6209
SUBCHAPTER F. FORMULA FUNDING AND TUITION CHARGES FOR REPEATED AND EXCESS HOURS OF UNDERGRADUATE STUDENTS
19 TAC §§13.101 - 13.104, 13.109
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 13, Subchapter F, Formula Funding and Tuition Charges for Repeated and Excess Hours of Undergraduate Students, §§13.101 - 13.104 and 13.109, without changes to the proposed text as published in the February 3, 2023, issue of the Texas Register (48 TexReg 456). The rules will not be republished.
SB 1531 (87th Regular Session) amended Education Code related to excess hours limits for formula funding and the amended rule is adopted to update administrative law into compliance with statute.
Rule 13.101, Authority, is amended to make the list of authorities under which the subsequent rules are implemented to be more accurate.
Rule 13.102, Definitions, the definitions of "student" and "academic" are made more specific and clearer in response to stakeholder engagement. The definition of excess hours now refers to §13.103 rather than fully describing what excess hours are.
Rule 13.103, Limitation on Formula Funding for Excess Hours, is amended to explicitly define the excess hours limit for each cohort considering previous amendments to Education Code concerning the excess hours limit.
Rule 13.104, Exemptions for Excess Hours, is amended to establish that hours abandoned by the Fresh Start program do not count against the excess hours limit. This clarifies the requirement in rule to align with statute.
Rule 13.109, Additional Responsibilities of Institutions, contained a provision that required institutions of higher education to "assist" students approaching the excess hours limit. This was vague and unenforceable. The revised rule replaces this with a requirement that institutions provide at least one notice to students approaching the excess hours limit.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Education Code, Section 61.0595, which provides the Coordinating Board with the authority to establish rules that limit certain undergraduate hours that may be reported for formula funding.
The adopted amendments affect rules on the limitations for the reporting of hours to the Coordinating for formula funding.
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 April 28, 2023.
TRD-202301551
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: February 3, 2023
For further information, please call: (512) 427-6548
The Texas Higher Education Coordinating Board (Coordinating Board) adopts new rules in Title 19, Part 1, Chapter 13, Subchapter N, Texas Reskilling and Upskilling Through Education (TRUE) Grant Program, §§13.400 - 13.408, without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 287). The rules will not be republished.
The new rules establish the TRUE Grant Program to strengthen the Texas workforce and build a stronger Texas economy. The TRUE Grant Program provides grants to eligible entities for creating, redesigning, or expanding workforce training programs and delivering education and workforce training. There are also provisions for the process of data collection and reporting undertaken by TRUE grantees and THECB, which will gauge the impact of the TRUE Grant Program on student success.
Rule 13.400, Purpose, identifies the section of the Texas Education Code that grants the Board authority over the TRUE Grant Program.
Rule 13.401, Authority, sets out the purpose of the chapter as a whole, to establish processes for the TRUE Grant Program's organization and implementation.
Rule 13.402, Definitions, lists definitions broadly applicable to all sections of Subchapter N. The definitions establish a common understanding of the meaning of key terms used in the rules.
Rule 13.403, Eligibility, identifies eligible entities that may apply for the TRUE grant as specified by statute. The TRUE Grant Program has three categories of eligible entities: (1) lower-division institution of higher education; (2) consortium of lower-division institutions of higher education; or (3) local chamber of commerce, trade association, or economic development corporation that partners with a lower-division institution of higher education or a consortium of lower-division institutions of higher education.
Rule 13.404, Application Procedures, identifies TRUE grant application procedures so that grant applicants understand high level requirements and refer to the TRUE Grant Program RFA for specifics. Grant application procedures described include the number of applications eligible entities may submit, the process of submitting applications to the THECB, the importance of adhering to grant program requirements, and the requirement for proper authorization and timely submission of applications.
Rule 13.405, Awards, identifies the size and provision of TRUE grant awards. TRUE Grant Program available funding is dependent on the legislative appropriation for the program for each biennial state budget. Consequently, award levels and estimated number of awards will be specified in the program's RFA. This section also provides reference on the establishment of processes for application approval and award sizes.
Rule 13.406, Review Criteria, provides TRUE grant application review procedures. This section describes how the THECB will utilize specific requirements and award criteria described in a TRUE Grant Program RFA to review applications. Award criteria will include, but may not be limited to, consideration of key factors and preferred application attributes described in the RFA.
Rule 13.407, Reporting Criteria, describes TRUE grant reporting requirements. THECB will request data on TRUE Grant Program funded credential programs as well as data on students enrolled in those programs. Student level data will enable THECB to track student enrollment, credential completion, and employment data through state education and workforce databases.
Rule 13.408, General Information, indicates general information concerning the cancellation or suspension of TRUE grant solicitations and the use of the Notice of Grant Award (NOGA).
The following comments were received regarding the adoption of the new rule.
Comment: One comment received from an institution asked for clarification of Review Criteria (a)(4) concerning representation of institutions from multiple regions of the state.
Response: The Coordinating Board provides criteria (a)(4) as one of the considerations that the Coordinating Board will take into account in reviewing and making grant awards. The rule states that the board will take into consideration projects from eligible entities located in each region of the state to the extent practicable. This means that THECB will take into account the geographic spread of projects across the state when determining grant awards. It does not mean that THECB is requiring applicants to take geography into consideration or that THECB will select an applicant in each region.
Comment: One set of comments received from an institution asked for clarifications and details regarding student aid eligibility, the end date of the funding cycle, actions institutions might take if students receiving funding do not spend down those funds and deadlines for return of funds to THECB.
Response: This level of specificity regarding program guidelines is incorporated in Requests for Proposals (RFAs). Most of these topics are standard content in an RFA. The Coordinating Board will take into account these specific details in the composition of future RFAs, based on the timing and size of future rounds of the TRUE Grant Program.
The new rules are adopted under the Texas Education Code, Chapter 61, Subchapter T-2, §61.882(b), which provides the Coordinating Board with the authority to adopt rules requiring eligible entities awarded a TRUE grant to report necessary information to the THECB.
The adopted new rules affect Texas Education Code, Chapter 61, Subchapter T-2, §§61.881-61.886.
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 April 28, 2023.
TRD-202301552
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6209
The Texas Higher Education Coordinating Board (Coordinating Board) adopts new rules in Title 19, Part 1, Chapter 13, Subchapter O, Formula Funding for Distance Education, §§13.450 - 13.454, as published in the January 27, 2023, issue of the Texas Register (48 TexReg 290). Sections 13.450 - 13.452 and §13.454 are adopted without changes to the proposed text and will not be republished. Section 13.453 is adopted with changes to the proposed text and will be republished. The change to the proposed text removes §13.453(7) as it was duplicative of §13.453(6).
The adopted new subchapter moves existing rules related to distance education formula funding from Texas Administrative Code (TAC) Chapter 4 to Chapter 13 without any substantive changes. The rules are reorganized and recodified without substantive revisions modifying any existing funding policy. This change is part of a larger reorganization and revision of the Coordinating Board's rules related to distance education. The agency is working on moving all funding rules into Chapter 13, Financial Planning, as this chapter of the TAC contains the agency's rules related to formula funding. This change will improve the agency's rule readability and help institutions navigate Title 19, Part 1, of the TAC. The authority for this rule is provided by TEC §61.059, which gives the board the authority to develop policy related to formula funding.
Rule 13.450 sets out the purpose of the subchapter, which is to establish formula funding rules for distance education instruction.
Rule 13.451 contains the statutory authority for this subchapter, which comes from TEC §61.0512(g) establishing Coordinating Board authority to approve distance education courses and §61.059 establishing the Board's role in developing formula funding policies.
Rule 13.452 directs the reader to find the appropriate definitions in Chapter 2, Subchapter J, of this title. The proposed Chapter 13, Subchapter O, uses the same definitions as the proposed subchapter that will govern agency approval of distance education more generally.
Rule 13.453 contains the substantive provisions related to formula funding. These provisions are identical to the formula funding provisions for distance education currently contained in TAC Chapter 4, Subchapter P. These provisions establish in rule several statutory restrictions on formula funding relevant for distance education - for example, requirements to collect sufficient tuition for non-formula-supported programs under TEC §54.545 and special provisions solely applicable to Texas A&M University-Texarkana under §§54.231 and 61.059(n).
Rule 13.454 contains the effective date of the proposed rules, scheduled for December 1, 2023.
No comments were received regarding the adoption of the new rules.
The new sections are adopted under Texas Education Code, Section 61.059, which provides the Coordinating Board with the authority to devise, establish, and periodically review and revise formula funding for public institutions of higher education, and Section 61.0512(g), which provides the Coordinating Board with the authority to approve institutions' distance education offerings.
The adopted new sections affect Texas Education Code §§54.231, 54.545, and 61.059.
§13.453.Formula Funding for Distance Education - General Provisions.
The following provisions apply to distance education courses and programs offered with authorization under Chapter 2, Subchapter J, of this title (relating to Approval of Distance Education for Public Institutions).
(1) Institutions shall report distance education courses submitted for formula funding in accordance with the Board's uniform reporting system and the provisions of this subchapter.
(2) Institutions may submit for formula funding academic credit courses delivered by distance education to any student located in Texas or to Texas residents located out-of-state or out-of-country.
(3) Institutions, with the exception of those outlined in paragraph (5) of this section, shall not submit for formula funding 100-percent online courses taken by non-resident students who are located out-of-state or out-of-country, courses in out-of-state or out-of-country programs taken by any student, or self-supporting courses.
(4) For courses not submitted for formula funding, institutions shall charge fees that are equal to or greater than Texas resident tuition and applicable fees and that are sufficient to cover the total cost of instruction and overhead, including administrative costs, benefits, computers and equipment, and other related costs. Institutions shall report fees received for self-supporting and out-of-state/country courses in accordance with general institutional accounting practices.
(5) Pursuant to Texas Education Code §54.231(a) and (f) and §61.059(n), Texas A&M University-Texarkana may submit distance education courses for formula funding that are taken by students enrolled in the university that reside in a county contiguous to the county in which Texas A&M University-Texarkana is located and who, under Texas Education Code §54.060(a), are eligible to pay resident tuition.
(6) If a non-Texas resident student enrolls in regular, on-campus courses for at least one-half of the normal full-time course load as determined by the institution, the institution may report that student's fully distance education or hybrid/blended courses for formula funding enrollments.
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 April 28, 2023.
TRD-202301553
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6284
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 22, Subchapter A, General Provisions, §22.1, with changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 291). The rule will be republished. The changes to the proposed text will better align the definition of "expected family contribution" with similar language in Chapter 22.
The Coordinating Board is authorized to adopt rules to effectuate the provisions of Texas Education Code, Chapter 61, including §61.051(a)(5) regarding the administration of financial aid programs. The phrase "expected family contribution" is referenced in multiple chapters relating to financial aid programs in both the Texas Education Code and Texas Administrative Code. The Coordinating adopts amendments to Texas Administrative Code §22.1 so that the administration of state financial aid programs is not adversely impacted by changes in the federal government's terminology regarding the federal methodology for financial aid.
The following comments were received regarding the adoption of the amendments.
Comment: The three comments received represented eleven institutions who all suggested the following language for the definition of EFC to better align the language with similar language in Chapter 22: "A measure utilized to calculate a student's financial need as regulated and defined by the methodology used for Federal student financial aid."
Response: The Coordinating Board agrees that the suggested language achieves the same goal as the proposed language, while doing so in a manner that is more easily understood. The suggested language is incorporated into the adopted rule.
The amendment is adopted under Texas Education Code (TEC), §61.027, which authorizes the Coordinating Board to adopt rules to effectuate the provisions of TEC Chapter 61, including §61.051(a)(5) regarding the administration of financial aid programs.
The adopted amendment affects Texas Administrative Code, Chapter 22.
§22.1.Definitions.
The following words and terms, when used in Chapter 22, shall have the following meanings, unless otherwise defined in a particular subchapter:
(1) Academic Year--The combination of semesters defined by a public or private institution of higher education to fulfill the federal "academic year" requirement as defined by 34 CFR 668.3.
(2) Attempted Semester Credit Hours--Every course in every semester for which a student has been registered as of the official Census Date, including but not limited to, repeated courses and courses the student drops and from which the student withdraws. For transfer students, transfer hours and hours for optional internship and cooperative education courses are included if they are accepted by the receiving institution towards the student's current program of study.
(3) Awarded--Offered to a student.
(4) Board or Coordinating Board--The Texas Higher Education Coordinating Board.
(5) Board Staff--The staff of the Texas Higher Education Coordinating Board.
(6) Categorical Aid--Gift aid that the institution does not award to the student, but that the student brings to the school from a non-governmental third party.
(7) Commissioner--The Commissioner of Higher Education, the Chief Executive Officer of the Board.
(8) Cost of Attendance/Total Cost of Attendance--An institution's estimate of the expenses incurred by a typical financial aid recipient in attending a particular institution of higher education. It includes direct educational costs (tuition and fees) as well as indirect costs (room and board, books and supplies, transportation, personal expenses, and other allowable costs for financial aid purposes).
(9) Degree or certificate program of four years or less--A baccalaureate degree or certificate program other than a program determined by the Board to require four years or less to complete.
(10) Degree or certificate program of more than four years--A baccalaureate degree or certificate program determined by the Board to require more than four years to complete.
(11) Encumber--Program funds that have been officially requested by an institution through procedures developed by the Coordinating Board.
(12) Entering undergraduate--A student enrolled in the first 30 semester credit hours or their equivalent, excluding hours taken during dual enrollment in high school and courses for which the student received credit through examination.
(13) Expected Family Contribution (EFC)-- A measure utilized to calculate a student's financial need as regulated and defined by the methodology used for federal student financial aid.
(14) Financial Need--The Cost of Attendance at a particular public or private institution of higher education less the Expected Family Contribution. The Cost of Attendance and Expected Family Contribution are to be determined in accordance with Board guidelines.
(15) Full-Time--For undergraduate students, enrollment or expected enrollment for the equivalent of twelve or more semester credit hours per semester. For graduate students, enrollment or expected enrollment for the normal full-time course load of the student's program of study as defined by the institution.
(16) Gift Aid--Grants, scholarships, exemptions, waivers, and other financial aid provided to a student without a requirement to repay the funding or earn the funding through work.
(17) Graduate student--A student who has been awarded a baccalaureate degree and is enrolled in coursework leading to a graduate or professional degree.
(18) Half-Time--For undergraduates, enrollment or expected enrollment for the equivalent of at least six but fewer than nine semester credit hours per regular semester. For graduate students, enrollment or expected enrollment for the equivalent of 50 percent of the normal full-time course load of the student's program of study as defined by the institution.
(19) Period of enrollment--The semester or semesters within the current state fiscal year (September 1 - August 31) for which the student was enrolled in an approved institution and met all eligibility requirements for an award through this program.
(20) Program Officer--The individual named by each participating institution's chief executive officer to serve as agent for the Board. The Program Officer has primary responsibility for all ministerial acts required by the program, including the determination of student eligibility, selection of recipients, maintenance of all records, and preparation and submission of reports reflecting program transactions. Unless otherwise indicated by the institution's chief executive officer, the director of student financial aid shall serve as Program Officer.
(21) Residency Core Questions--A set of questions developed by the Coordinating Board to be used to determine a student's eligibility for classification as a resident of Texas, available for downloading from the Coordinating Board's website, and incorporated into the ApplyTexas application for admission.
(22) Resident of Texas--A resident of the State of Texas as determined in accordance with Chapter 21, Subchapter B of this title (relating to Determination of Resident Status). Nonresident students who are eligible to pay resident tuition rates are not residents of Texas.
(23) Semester--A payment period, as defined by 34 CFR 668.4(a) or 34 CFR 668.4(b)(1).
(24) Three-Quarter-Time--For undergraduate students, enrollment or expected enrollment for the equivalent of at least nine but fewer than 12 semester credit hours per semester. For graduate students, enrollment or expected enrollment for the equivalent of 75 percent of the normal full-time course load of the student's program of study as defined by the institution.
(25) Timely Distribution of Funds--Activities completed by institutions of higher education related to the receipt and distribution of state financial aid funding from the Board and subsequent distribution to recipients or return to the Board.
(26) Undergraduate student--An individual who has not yet received a baccalaureate degree.
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 April 28, 2023.
TRD-202301554
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: February 3, 2023
For further information, please call: (512) 427-6548
19 TAC §§22.22 - 22.24, 22.28, 22.29
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 22, Subchapter B, Tuition Equalization Grant Program, §§22.22 - 22.24, 22.28, and 22.29, as published in the January 27, 2023, issue of the Texas Register (48 TexReg 293). Sections 22.22, 22.23, 22.28, and 22.29 are adopted without changes to the proposed text and will not be republished. Section 22.24 is adopted with changes to the proposed text and will be republished.
Specifically, the amendments provide private and independent institutions with greater flexibility in supporting economically disadvantaged students through funds from the Tuition and Equalization Grant (TEG) program. The amendments also provide clarity for the allocation process and remove unnecessary language.
In §22.22, two redundant definitions are repealed since the items are explained elsewhere in the subchapter. In §22.23, the timing of data submissions is clarified to ensure that allocation activities can occur in a timely manner. In §22.24(b), eligibility criteria are provided for exceptional TEG need. In §22.28, a clarifying reference to §22.4 is added. In §22.29, outdated language is removed, with appropriate clarifying language. Section 22.29(c) is also removed, since the language is being proposed separately as a new §22.30.
Based on feedback from the financial aid community, the Coordinating Board initiated a review of how exceptional TEG need is defined. Since exceptional TEG need has a direct impact on the allocation methodology for the TEG program, the Coordinating Board convened negotiated rulemaking activities, as required by Texas Education Code, §61.0331, in matters relating to the allocation of funds, including financial aid. The adopted amendments were reached by consensus during negotiated rulemaking activities occurring on November 7, 2022.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Education Code, Sections 61.229 and 61.0331, which provides the Coordinating Board with the authority to make reasonable regulations, consistent with the purposes and policies of Texas Education Code, Chapter 61, Subchapter F, relating to the Tuition Equalization Grant Program, and which requires the Coordinating Board to use negotiated rulemaking in matters relating to the allocation of funds, including financial aid.
The adopted amendments affect Texas Administrative Code, Title 19, Part 1, Chapter 22, Subchapter B.
§22.24.Eligible Students.
(a) To receive an award through the TEG Program, a student must:
(1) be enrolled on at least a three-fourths of full-time enrollment;
(2) show financial need;
(3) maintain satisfactory academic progress in his or her program of study as determined by the institution at which the person is enrolled and as required by §22.25 of this title (relating to Satisfactory Academic Progress);
(4)be a resident of Texas as determined based on data collected using the Residency Core Questions and in keeping with Chapter 21, Subchapter B of this title (relating to Determination of Resident Status);
(5) be enrolled in an approved institution in an individual degree plan leading to a first associate degree, first baccalaureate degree, first master's degree, first professional degree, or first doctoral degree, but not in a degree plan that is intended to lead to religious ministry;
(6) be required to pay more tuition than is required at a comparable public college or university and be charged no less than the tuition required of all similarly situated students at the institution; and
(7) not be a recipient of any form of athletic scholarship during the semester or semesters he or she receives a TEG.
(b) To demonstrate eligibility for exceptional TEG need, a student must:
(1) be an undergraduate student; and
(2) have an expected family contribution less than or equal to fifty percent of the Federal Pell Grant eligibility cap for the year reported in the institution's Financial Aid Database submission.
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 April 28, 2023.
TRD-202301555
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6365
The Texas Higher Education Coordinating Board (Coordinating Board) adopts new rules in Title 19, Part 1, Chapter 22, Subchapter B, Provisions for the Tuition Equalization Grant Program, §22.30, without changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 296). The rule will not be republished.
Specifically, this new section establishes language currently in §22.29 as a separate rule for greater clarity. Based on feedback from the financial aid community, the Coordinating Board initiated a review of how exceptional TEG need was defined. Since exceptional TEG need has a direct impact on the allocation methodology for the TEG program, the Coordinating Board convened negotiated rulemaking activities, as required by Texas Education Code, §61.0331, in matters relating to the allocation of funds, including financial aid. The adopted new rule was reached by consensus during negotiated rulemaking activities occurring on November 7, 2022.
No comments were received regarding the adoption of the new rule.
The new section is adopted under Texas Education Code, Sections 61.229 and 61.0331, which provides the Coordinating Board with the authority to make reasonable regulations, consistent with the purposes and policies of Texas Education Code, Chapter 61, Subchapter F, relating to the Tuition Equalization Grant Program, and which requires the Coordinating Board to use negotiated rulemaking in matters relating to the allocation of funds, including financial aid.
The adopted new section affects Texas Administrative Code, Title 19, Part 1, Chapter 22, Subchapter B.
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 April 28, 2023.
TRD-202301556
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6365
The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Title 19, Part 1, Chapter 22, Subchapter C, Hinson-Hazlewood College Student Loan Program, §22.49, with changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 297). The rule will be republished. The rule has been revised to indicate when the new calculation of loan limits will take effect.
The amendments to Texas Administrative Code (TAC) §22.49 are adopted to provide a clearer indication of the alignment between the rule regarding the amount of a loan and the limitations on the loan amount as outlined in Texas Education Code (TEC) §52.33. The adopted language in §22.49(a) aligns the statutory intent regarding what a student may reasonably be expected to pay with the Board's Long-Range Master Plan for Higher Education and the manageable debt guidelines therein. The adopted language in 22.49(b) captures the agency's interpretation of how federal student loan eligibility is considered when calculating the financial resources indicated in TEC §52.33.
No comments were received regarding the adoption of the amendments.
The amendment is adopted under Texas Education Code, Section 52.33, which provides the Coordinating Board with the authority to adopt rules regarding the amount of loan a student may borrow, and Section 52.54, which provides the Coordinating Board with the authority to adopt rules regarding the Hinson-Hazlewood College Student Loan Program.
The adopted amendment affects the College Access Loan program, as administered by the Coordinating Board under the Hinson-Hazlewood College Student Loan Program and authorized by Texas Education Code, Chapter 52.
§22.49.Amount of Loan.
(a) Amount of Loan. For loan applications received by the agency prior to September 1, 2023, the amount of loan shall not exceed the amount that the student needs in order to meet reasonable expenses as a student.
(b) Annual and Aggregate Loan Limit. For loan applications received by the agency prior to September 1, 2023, the maximum annual and aggregate loan amounts for any eligible student shall be determined from time to time by the Commissioner. In no case shall the maximum annual loan amount be greater than the annual cost of attendance for the student at the eligible institution.
(c) Aggregate Loan Limit. For loan applications received by the agency on or after September 1, 2023:
(1) The maximum aggregate loan amount for an eligible undergraduate student shall be limited to an amount of debt defined as "manageable debt" under the Board's Long-Range Master Plan for Higher Education. The maximum amount of student loan debt is based on a reasonable monthly student loan payment, taking into consideration the borrower's area of study, as outlined in Figure 1. The agency may not loan a borrower an amount of College Access Loans that would cause the borrower's aggregate educational loan debt, as reported on the borrower's credit report, to exceed the maximum amount outlined in Figure 1.
(2) The maximum aggregate loan amount for an eligible graduate or professional student is the sum of the student's annual limits.
(d) Annual Loan Limit. For loan applications received by the agency on or after September 1, 2023, in no case shall the maximum annual loan amount exceed the difference between the cost of attendance and the financial resources available to the applicant, including the applicant's scholarships, gifts, grants, and other financial aid. The student's maximum eligibility for Federal Direct Loans, except for Federal Plus loans, must be considered by the institution as other financial aid, whether or not the student actually receives such assistance.
Figure: 19 TAC §22.49(d) (.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 April 28, 2023.
TRD-202301557
Nichole Bunker-Henderson
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 18, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 427-6365
CHAPTER 61. SCHOOL DISTRICTS
SUBCHAPTER GG. COMMISSIONER'S RULES CONCERNING COUNSELING PUBLIC SCHOOL STUDENTS
The Texas Education Agency (TEA) adopts new §61.1073, concerning counseling public school students. The new section is adopted with changes to the proposed text as published in the November 4, 2022, issue of the Texas Register (47 TexReg 7387) and will be republished. The adopted new section implements the statutory requirement for school districts to annually assess compliance with the district policy requiring a school counselor to spend at least 80% of the school counselor's total work time on duties that are components of a counseling program as required by Senate Bill (SB) 179, 87th Texas Legislature, Regular Session, 2021.
REASONED JUSTIFICATION: Texas Education Code (TEC), §33.006(d), as added by SB 179, 87th Texas Legislature, Regular Session, 2021, requires school districts to adopt a policy that requires a school counselor to spend at least 80% of the school counselor's total work time on duties that are components of a counseling program developed under TEC, §33.005. TEC, §33.006(h), requires each school district to annually assess the district's compliance with the policy regarding school counselors' work time, and, on request by the commissioner, provide a written copy of the assessment to TEA on or before a date specified by the commissioner.
Adopted new §61.1073 implements TEC, §33.006(h). The new rule requires each district school counselor to track and document, using a district-standardized tracking tool, the time spent on work duties performed by the school counselor throughout a school year. The new rule also identifies the elements that district assessments must include and the documentation to be included in annual requests by TEA for district assessments.
The following changes were made to the rule since published as proposed.
In response to public comment, §61.1073(b) was amended to clarify that the standardized tracking tool would be selected by each school district. In addition, §61.1073(b)(1)(B) was amended to require that the tracking tool include reporting of the total time spent on all duties that are components of a counseling program as opposed to time spent on each component.
In response to public comment, §61.1073(b)(1)(C) was clarified by adding "including time spent in administering assessment instruments or providing other assistance in connection with assessment instruments (except time spent in interpreting data from assessment instruments)" to the requirement for tracking of the total time spent on duties that are not components of a counseling program.
In response to public comment, §61.1073(b)(1)(D) that would have required a calculation of the percentage of work time spent on each component of a counseling program was stricken in acknowledgment that this calculation is unnecessary.
In response to public comment, §61.1073(c) was amended to require the assessment of compliance with the number rather than the percentage of school counselors in the district whose work was not in compliance with the district policy adopted under TEC, §33.006(d), to better reflect the level of compliance with state law.
In response to public comment, proposed §61.1073(e)(2) and (4) were stricken. The provisions would have required randomly selected school districts to submit all completed district-standardized tracking tools from the previous school year and the number of school counselors whose work is determined by the district to be in compliance with the district policy adopted under TEC, §33.006(d). New subsection (e)(2) was added to require the randomly selected school districts to submit a copy of the district annual assessment required by subsection (c) to streamline the reporting requirement.
The assessment of data and reporting impact has been updated since the rule was published as proposed. The new rule will have a data and reporting impact for school districts randomly selected to submit information to TEA annually. In response to public comment, the information required to be reported by randomly selected districts would no longer include all completed district-standardized tracking tools from the previous school year or the number of school counselors whose work is determined by the district to be in compliance with the district policy adopted under TEC, §33.006(d). Under the adopted rule, selected school districts will still be required to provide a copy of the school district policy adopted under TEC, §33.006(d); a copy of the district annual assessment; the number of school counselors in the school district from the previous school year; the number of school counselors in the school district whose work is determined by the district to be out of compliance with the school district policy adopted under TEC, §33.006(d); and any other findings, conclusions, or analysis included in the annual assessment, including proposed strategies to address any lack of compliance with the district policy adopted under TEC, §33.006(d).
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began November 4, 2022, and ended December 5, 2022. Following is a summary of public comments received and agency responses.
Comment: Sixty school counselors expressed support for the proposed rule, noting that the rule would allow them to support students and counsel according to TEC, §33.005, while limiting non-counseling duties.
Response: The agency agrees that the rule will permit school counselors to support students while limiting non-counseling duties.
Comment: Thirty-six school counselors expressed support for the proposed rule, noting that the rule would hold districts more accountable for allowing counselors to spend at least 80% of their time on duties established in TEC, §33.005. The commenters noted that some districts require counselors to test students despite testing being listed as a non-counseling duty in TEC, §33.006.
Response: The agency agrees that the rule supports compliance with TEC, §33.005 and §33.006.
Comment: Nineteen school counselors expressed support for the rule, stating that a mental health crisis has followed the pandemic, leading to emotional and behavioral concerns that require school counselors to spend at least 80% of their time on counseling duties.
Response: The agency agrees that counselors spending 80% of their time on counseling duties supports students with emotional and behavioral concerns.
Comment: Twenty-four school counselors expressed support for the rule but indicated a preference to track time and effort in larger time frames such as weekly or monthly instead of daily. They recommended only reporting time on non-counseling duties and requested that education service centers (ESCs) provide a time tracker for districts that do not develop their own.
Response: The agency disagrees that only non-counseling duties should be tracked. TEC, §33.005, describes a comprehensive counseling program and each of its components. Data on time spent in each category provides information on what services are being provided to students. Regarding time trackers, the agency provides the following clarification. TEC, §33.006, requires an annual assessment of compliance; however, districts have the flexibility to develop or adopt appropriate time trackers and/or work time analysis procedures. The Texas Model for Comprehensive School Counseling Programs and the ASCA National Model: Implementation Guide provide various templates for work time analysis. The comment regarding ESC development of tools is outside the scope of the proposed rulemaking.
Comment: Ten school counselors expressed support for the rule but raised concerns about current counselor-to-student ratios.
Response: Counselor-to-student ratios are outside the scope of the proposed rulemaking.
Comment: Seven school counselors and one administrator expressed support for the rule but recommended clearer definitions of counseling duties and clearer guidance for districts to follow regarding counseling as compared to non-counseling duties.
Response: The agency disagrees that the duties should be defined in administrative rule. TEC, §33.006, defines counseling duties and does not give the commissioner of education authority to provide further guidance.
Comment: Two teachers and one retired teacher expressed support for the rule, noting that counselors are too often assigned non-counseling duties and that the rule will allow counselors more time to serve students.
Response: The agency agrees that the rule supports counselors in serving students as described in TEC, §33.005 and §33.006.
Comment: One student expressed support for the rule, specifically noting that the student's local school board adopted a policy aligned to the language in SB 179 with no modifications but did not alter the time counselors spend on non-counseling duties like testing. The student requested that counselors be more available to students.
Response: The agency agrees that the rule supports counselors spending more time with students on counseling duties described in TEC, §33.005 and §33.006.
Comment: Six community members, including two parents, expressed support for the rule to allow counselors more time on counseling duties and better support students by limiting non-counseling duties.
Response: The agency agrees that the rule supports counselors spending more time with students on counseling duties described in TEC, §33.005 and §33.006.
Comment: One community member expressed a belief that tracking hours is an undue burden and not necessary to help students.
Response: The agency disagrees. Tracking time and effort is a practice used in many fields and can be done efficiently. The rule supports counselors spending more time with students on counseling duties described in TEC, §33.005 and §33.006.
Comment: One school administrator expressed support for the rule but recommended that only districts out of compliance with counselors spending 80% of their time on counseling duties report their time.
Response: The agency disagrees that only districts whose counselors are not spending 80% of their time on counseling duties should report their time. In order for a district to ensure it is in compliance with the law, time must be reported for all counselors.
Comment: One school administrator expressed agreement with the rule and stated that without it, no district would comply with TEC, §33.006.
Response: The agency provides the following clarification. School districts are required to comply with statute regardless of agency administrative rules. However, the rule is intended to provide support and accountability for districts for their compliance.
Comment: One school administrator proposed reporting time spent on counseling duties and time spent on non-counseling duties as opposed to time spent within each category of comprehensive school counseling.
Response: The agency disagrees that only counseling and non-counseling duties should be tracked as opposed to time spent within each category. TEC, §33.005, describes a comprehensive counseling program and each of its components. Data on time spent in each category provides information on what services are being provided to students. The data helps ensure that students are receiving appropriate services.
Comment: Four school administrators expressed support for the rule but expressed concern that the tracking of time will be an additional burden. The commenters also asked for lower counselor-to-student ratios.
Response: The agency disagrees that the tracking of time will be an additional burden and provides the following clarification. Districts have the flexibility to develop or adopt appropriate time trackers and/or work time analysis procedures. The Texas Model for Comprehensive School Counseling Programs and the ASCA National Model: Implementation Guide provide various templates for work time analysis. The data gathered provides districts with valuable information to support counselors in meeting the needs of their students. The comment regarding counselor-to-student ratios is outside the scope of the proposed rulemaking.
Comment: Two school administrators expressed support for the rule as a way to meet the needs of students.
Response: The agency agrees that the rule supports counselors spending more time with students on counseling duties described in TEC, §33.005 and §33.006.
Comment: Four school administrators disagreed with the determination that the rule does not have a fiscal impact.
Response: The agency offers the following clarification: There are no additional costs resulting from the proposed rule. TEC, §33.005, requires the implementation of a comprehensive counseling program. System support, a component of the comprehensive counseling program, establishes work time analysis as an appropriate counseling duty. State law also requires school districts to adopt a policy that requires a school counselor to spend at least 80% of the school counselor's total work time on duties that are components of a counseling program and annually assess the district's compliance with the policy.
Comment: One school administrator asked if a draft could be sent out, if a standardized tracker could be provided, how districts will be measured, and how the random districts would be chosen.
Response: The agency provides the following clarification. Both the Texas Model for Comprehensive School Counseling Programs and the ASCA National Model: Implementation Guide provide various templates for work time analysis, including standardized time trackers. The rule will require school districts to annually assess the work time tracking documentation for each school counselor in the district; the number of school counselors whose work was in compliance with a district policy adopted under TEC, §33.006(d); and the number of school counselors in the district whose work was not in compliance with the district policy adopted under TEC, §33.006(d). Finally, districts will be randomly selected to provide documentation to TEA each year.
Comment: Eighteen school administrators disagreed with the rule and expressed concern that counselors are too busy to add another clerical task to their plate.
Response: The agency disagrees that work time analysis is a clerical task and offers the following clarification. Tracking time and effort is a practice used in many fields and can be done efficiently. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis (time tracking) falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: Nederland Independent School District (ISD) disagreed with the rule and stated it will only add another layer of bureaucracy between teaching and learning.
Response: The agency disagrees that the rule adds a layer of bureaucracy and offers the following clarification. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis (time tracking) falls. Work time analysis is a necessary and appropriate counseling duty. Work time analysis will ensure that districts demonstrate compliance with the statutory requirement that 80% of school counselors' total work time is spent on duties described in TEC, §33.005 and §33.006. In this way, the rule supports counselors spending more time with students on counseling duties described in TEC, §33.005 and §33.006.
Comment: Kaufman ISD expressed disagreement with the proposed rule and stated that the rule would increase the paperwork burden while ostensibly acting to decrease it. The district further commented that counselors in the district are not in favor of the rule and that the commissioner's distrust of public-school personnel is made evident in rules of this nature.
Response: The agency disagrees that work time analysis will increase paperwork. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis (time tracking) falls. Work time analysis is a necessary and appropriate counseling duty. The agency provides the following clarification. State law requires the commissioner to adopt a rule to implement the requirement that each school district annually assess the district's compliance with the policy that requires a school counselor to spend at least 80% of the school counselor's total work time on duties that are components of a counseling program and on request by the commissioner, provide a written copy of the assessment to the agency on or before the date specified by the commissioner.
Comment: Lumberton ISD expressed disagreement with the rule and stated that the district's counselors are already swamped with counseling students experiencing mental health situations. The district further stated that adding time and effort log requirements will do nothing to assist students.
Response: The agency disagrees that the rule does nothing to assist students and offers the following clarification. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: Cisco ISD stated that the proposal has a cost to districts--and, more importantly, counselors--who will have to spend valuable man-hours on completing these reports. The district expressed understanding that there are counselors who feel they are not able to provide counseling because they are required to manage assessments or perform other non-counseling duties but that punishing every counselor in the state to complete a time and effort sheet is counterintuitive. The district stated that, if TEC, §33.006(h), must be monitored, it would be much easier to simply have the counselors sign a statement that is submitted annually stating that 80% of their work time is spent on duties that are components of a counseling program developed under TEC, §33.005.
Response: The agency disagrees that signing a statement is sufficient evidence of compliance with TEC, §33.006. The agency disagrees that the rule punishes counselors and adds additional cost because counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: Big Sandy ISD expressed agreement with the 80% rule but stated a concern that the additional paperwork and time tracking will be overwhelming and demeaning.
Response: The agency disagrees that the tracking of time will be demeaning and overwhelming. Tracking time and effort is a practice used in many fields and can be done efficiently. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: The Texas Counseling Association (TCA), Texas School Counselor Association (TSCA), two professors, and two school administrators expressed support for the rule but requested that the agency consider amending §61.1073(a)(1) to specifically cite the Texas Model for Comprehensive School Counseling Programs and to expand the reference in this subsection to include all of TEC, §33.005, rather than just one subsection to provide a clearer reference for school districts.
Response: The agency disagrees that specifically citing the Texas Model for Comprehensive School Counseling Programs or expanding the statutory reference will provide additional clarity.
Comment: TCA, TSCA, two professors, and two school administrators expressed support for the rule but requested that the agency consider amending §61.1073(b) to allow each school district to adopt its own tracking tool; change the reporting requirements to focus on time spent on the entire school counseling program, rather than each of the four components; and add language to explicitly state that testing duties are not components of a counseling program.
Response: The agency disagrees that reporting on the counseling program as a whole will be sufficient. TEC, §33.005, describes a comprehensive counseling program and each of its components. Data on time spent in each category provides information on what services are being provided to students. The data helps ensure that students are receiving appropriate services.
Comment: TCA, TSCA, two professors, and two school administrators expressed support for the rule but requested that the agency consider amending §61.1073(c) for consistency in reporting numbers rather than percentages of school counselors whose work complies or does not comply with the district's policy.
Response: The agency agrees and has adjusted §61.1073(c)(3) at adoption to read, "the number of school counselors in the district whose work was not in compliance with the district policy adopted under TEC, §33.006(d)."
Comment: TCA, TSCA, two professors, and two school administrators expressed support for the rule but requested that the agency consider amending §61.1073(e) to reduce reporting requirements by allowing districts to simply submit their annual assessments upon request since the data requested in this subsection is required to be included in each district's annual assessment.
Response: The agency agrees and has deleted §61.1073(e)(2) and (4), as proposed, and added new paragraph (2) to read, "a copy of the district annual assessment as required by subsection (c) of this section" at adoption. The agency has also amended renumbered §61.1073(e)(4) to read, "the number of school counselors in the district whose work is determined by the district to be out of compliance with the district policy adopted under TEC, §33.006(d)."
Comment: Texas State Teachers Association (TSTA) commented that the rule as drafted increases counselors' workloads in ways unrelated to a comprehensive counseling program. TSTA proposed revisions to §61.1073(b).
Response: The agency disagrees that reporting on each component of the school counseling program will increase workloads in ways unrelated to a comprehensive counseling program. TEC, §33.005, describes a comprehensive counseling program and each of its components. Data on time spent in each category provides information on what services are being provided to students. The data helps ensure that students are receiving appropriate services. In response to other comments, the agency revised §61.1073(b)(1)(B), (c), and (e) at adoption.
Comment: Texas Classroom Teachers Association (TCTA) commented that the proposal to track specific amounts of time spent on components of TEC, §33.005, is unnecessarily burdensome and proposed striking "each of" from §61.1073(b)(1)(B).
Response: The agency agrees that requiring the reporting of each component is unnecessary and deleted "each of" from §61.1073(b)(1)(B) at adoption.
Comment: TCTA proposed amending §61.1073(b)(1)(B)(iv) to read, "system support to support the efforts of teachers, staff, parents, and other members of the community in promoting the educational, career, personal, and social development of students."
Response: The agency disagrees that the additional language is necessary.
Comment: TCTA proposed amending §61.1073(b)(1)(C) to read, "the total time spent on duties that are not components of a counseling program developed under TEC, §33.005, including time spent in administering assessment instruments or providing other assistance in connection with assessment instruments (except time spent in interpreting data from assessment instruments)."
Response: The agency agrees and amended §61.1073(b)(1)(C) at adoption to reflect the commenter's suggested language.
Comment: TCTA proposed striking §61.1073(b)(1)(D).
Response: The agency agrees and deleted proposed §61.1073(b)(1)(D) at adoption.
Comment: TCTA proposed that the rule address potential attempts at coercion by adding specific language to prohibit coercion and adding new subsection (f) to require districts to submit their annual reports if there are allegations of coercion.
Response: The agency disagrees that the rule should address coercion. The agency has determined that the statute does not provide authority to address coercion in the rule.
Comment: Texas American Federation of Teachers (AFT) commented that tracking time is overburdensome and that districts should track only the 20% of time not spent on counseling duties. Texas AFT also commented that a clearer definition of which schools will be randomly selected is necessary.
Response: The agency disagrees that reporting only on the 20% of time not spent on school counseling duties is sufficient and that tracking each component of a school counseling program will be overburdensome. TEC, §33.005, describes a comprehensive counseling program and each of its components. Data on time spent in each category provides information on what services are being provided to students. The data helps ensure that students are receiving appropriate services. The agency also disagrees that there should be a clearer definition of which schools will be randomly selected. If the agency provided information regarding which districts were going to be selected, the process would no longer be random.
Comment: One school administrator asked if the rule applies to charter schools.
Response: The agency offers the following clarification. The rule does not apply to charter schools.
Comment: The Association of Texas Professional Educators expressed support for TEC, §33.006, and limiting time spent on testing and other non-counseling duties, but they advocated for changes to §61.1073(b) and (c) and proposed adding the option for a principal or designee to affirm the school has posted and is following the policy. The commenter expressed the belief that the current rule is over burdensome.
Response: The agency agrees that changes to §61.1073(b) and (c) are warranted. Section 61.1073(b) was amended at adoption to clarify that the standardized tracking tool would be selected by each school district. Section 61.1073(b)(1)(B) was amended at adoption to require that the tracking tool include reporting of the total time spent on all duties that are components of a counseling program as opposed to time spent on each component. In addition, §61.1073(c) was amended at adoption to require the assessment of compliance with the number rather than the percentage of school counselors in the district whose work was not in compliance with the district policy adopted under TEC, §33.006(d). The agency disagrees that affirmation of compliance is sufficient. The agency also disagrees that the rule is overburdensome. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: One school counselor recommended that counselors only have duties that are in the rubric of the School Counselor Appraisal Instrument and that counselors should get paid more for what they do.
Response: The agency provides the following clarification. Appropriate school counseling duties are described in TEC, §33.005 and §33.006. The comment about higher pay is outside the scope of the proposed rulemaking.
Comment: Four school counselors commented that they are against tracking time because the added documentation takes away from students' mental health, but they support additional investment in more counselors.
Response: The agency disagrees that the documentation will take away from student services. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: Sixty-eight school counselors expressed opposition to the rule because they believe it is overburdensome and will require additional time that counselors do not have in addition to all of their current duties. The commenters further stated that other educational personnel, including administrators, teachers, and TEA employees do not track their time.
Response: The agency disagrees that tracking time is overburdensome. Time and effort is a practice used in many fields and can be done efficiently. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: Two school counselors commented that data collection is very important but that the rule should be optional.
Response: The agency disagrees that the rule should be optional. The school counseling component of system support under TEC, §33.005, which requires work time analysis, is a necessary, required, and appropriate counseling duty.
Comment: Four school counselors commented that tracking time is unrealistic, a punishment, and a lack of professional trust. The commenters stated that currently, small/rural campus administrators and counselors wear many hats to support students and this rule adds to the duties and takes time away from students and that additional funding would be needed for new positions.
Response: The agency disagrees that tracking time is unrealistic, a punishment, or a lack of professional trust. Tracking time and effort is a practice used in many fields and can be done efficiently. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty. Additional funding for positions is outside the scope of the proposed rulemaking.
Comment: Three school counselors stated that tracking time takes time away from supporting students and that the data could be used by administrators against counselors.
Response: The agency disagrees that the documentation will take time away from supporting students. Counselors should spend at least 80% of their work time on appropriate counseling duties described in TEC, §33.006. A comprehensive counseling program described in TEC, §33.005, includes the component of system support, under which work time analysis falls. Work time analysis is a necessary and appropriate counseling duty.
Comment: One school counselor commented that rules cannot just be changed and that new laws create deficiencies. The commenter also stated that children are no longer the priority; compliance is.
Response: The agency disagrees that the new rule does not prioritize children. New §61.1073 supports counselors in serving students as described in TEC, §33.005 and §33.006.
Comment: One school counselor commented that rural schools have no one to do the non-counseling duties and recommended a noncompetitive grant of $75,000 for small districts to hire someone to do the non-counseling duties.
Response: This comment is outside the scope of the proposed rulemaking.
STATUTORY AUTHORITY. The new section is adopted under Texas Education Code (TEC), §33.005, which provides that a school counselor shall plan, implement, and evaluate a comprehensive school counseling program that meets the requirements of the section; TEC, §33.006(d), as added by Senate Bill (SB) 179, 87th Texas Legislature, Regular Session, 2021, which requires, except as provided by subsection (e) of the section, school districts to adopt a policy that requires a school counselor to spend at least 80% of the school counselor's total work time on duties that are components of a counseling program developed under TEC, §33.005; TEC, §33.006(e), as added by SB 179, 87th Texas Legislature, Regular Session, 2021, which requires school district boards of trustees that determine that staffing needs require school counselors to spend less than 80% of their work time on duties that are components of counseling programs developed under TEC, §33.005, to change the policy adopted under subsection (d) of the section to reflect the reasons why counselors need to spend less than 80% of their work time on components of the counseling program, list those non-component duties, and set the required percentage of work time to be spent on components of the counseling program; and TEC, §33.006(h), as added by SB 179, 87th Texas Legislature, Regular Session, 2021, which requires each school district to annually assess the district's compliance with the policy adopted under TEC, §33.006(d), and, on request by the commissioner, provide a written copy of the assessment to Texas Education Agency on or before a date specified by the commissioner. This section requires the commissioner to adopt rules to implement these requirements.
CROSS REFERENCE TO STATUTE. The new section implements Texas Education Code, §33.005 and §33.006, as amended by Senate Bill 179, 87th Texas Legislature, Regular Session, 2021.
§61.1073.Annual Assessment of School District Compliance.
(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.
(1) Comprehensive school counseling program--provision of a guidance curriculum, responsive services, individual planning, and system support as described in Texas Education Code (TEC), §33.005(b).
(2) Duties that are components of a counseling program--work activities related to the development, implementation, and evaluation of a comprehensive school counseling program as described in TEC, §33.005(b).
(3) School counselor--the position described by TEC, §21.003, and Chapter 239, Subchapter A, of this title (relating to School Counselor Certificate).
(4) School counselor's total work time--the amount of time, reported in hours, that a school counselor is contracted to work as a school counselor for a school district during a school year.
(b) School districts shall require each district school counselor to track and document, using a standardized tracking tool, as established by each district, the time spent on work duties performed by the school counselor throughout a school year. This tracking tool shall:
(1) include the following components:
(A) the total work time worked by the school counselor for the year;
(B) the total time spent on the following duties that are components of a counseling program developed under TEC, §33.005:
(i) provision of a guidance curriculum;
(ii) responsive services for students;
(iii) individual planning for students; and
(iv) system support; and
(C) the total time spent on duties that are not components of a counseling program developed under TEC, §33.005, including time spent in administering assessment instruments or providing other assistance in connection with assessment instruments (except time spent in interpreting data from assessment instruments); and
(2) be maintained by the district in a format that can be made available to Texas Education Agency (TEA) upon request.
(c) School districts shall annually assess the district's compliance with the policy adopted under TEC, §33.006(d). The assessment shall include:
(1) work time tracking documentation as described in subsection (b) of this section for each school counselor in the district;
(2) the number of school counselors whose work was in compliance with the district policy adopted under TEC, §33.006(d); and
(3) the number of school counselors in the district whose work was not in compliance with the district policy adopted under TEC, §33.006(d).
(d) The assessment described in subsection (c) of this section shall be maintained by the school district in a format that can be made available to TEA upon request.
(e) Not later than October 15 of each year, TEA will request the following information from a randomly selected sample of school districts, with district responses required to be submitted to TEA not later than November 15 of each year in the format requested by TEA:
(1) a copy of the district policy adopted under TEC, §33.006(d);
(2) a copy of the district annual assessment as required by subsection (c) of this section;
(3) the number of school counselors in the district from the previous school year;
(4) the number of school counselors in the district whose work is determined by the district to be out of compliance with the district policy adopted under TEC, §33.006(d); and
(5) any other findings, conclusions, or analysis included in the annual assessment required by subsection (c) of this section, including proposed strategies to address any lack of compliance with the district policy adopted under TEC, §33.006(d).
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 1, 2023.
TRD-202301578
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: May 21, 2023
Proposal publication date: November 4, 2022
For further information, please call: (512) 475-1497