Proposed Rules Title 19

TITLE 19. EDUCATION

PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

SUBCHAPTER A. GENERAL PROVISIONS

The Texas Higher Education Coordinating Board (Coordinating Board) proposes the repeal of Texas Administrative Code, Title 19, Part 1, Chapter 1, Subchapter A, §1.10, concerning handling requests for information under the Public Information Act. Specifically, this repeal will remove a rule that is unnecessary because the process of handling such a request is governed by statute under Chapter 552 of the Texas Government Code.

This rule is outdated and largely restates the statute, and where there is additional direction, it deals with internal procedures, which is not the function of administrative rules.

The Coordinating Board has the authority to repeal this rule under its general rulemaking authority granted by Texas Education Code, Section 61.027.

Nichole Bunker-Henderson, General Counsel, 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 rule. 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.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Nichole Bunker-Henderson, General Counsel, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section will be the repeal a rule that is unnecessary because the process for handling a request for information is set forth in Chapter 552 of the Texas Government Code. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rule will not create or eliminate a government program;

(2) implementation of the rule will not require the creation or elimination of employee positions;

(3) implementation of the rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rule will not require an increase or decrease in fees paid to the agency;

(5) the rule will not create a new rule;

(6) the rule will not limit an existing rule;

(7) the rule will not change the number of individuals subject to the rule; and

(8) the rule will not affect this state's economy.

Comments on the proposal may be submitted to Kimberly Fuchs, Assistant General Counsel, P.O. Box 12788, Austin, Texas 78711-2788, or via email at Kimberly.Fuchs@highered.texas.gov. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The repeal is proposed under Texas Education Code, Section 61.027, which provides the Coordinating Board with the authority to adopt and publish rules in accordance with Texas Government Code Chapter 2001.

The proposed repeal affects the public information process.

§1.10.Administration of the Open Records Act.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401598

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6271

SUBCHAPTER T. WORKFORCE EDUCATION COURSE MANUAL ADVISORY COMMITTEE

19 TAC §§1.220 - 1.223, 1.225, 1.226

The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to Texas Administrative Code, Title 19, Part 1, Chapter 1, Subchapter T, §§1.220 - 1.223, 1.225 and 1.226, concerning the Workforce Education Course Manual Advisory Committee. Specifically, this amendment will revise and clarify the purpose and tasks assigned to the committee.

The advisory committee is created to provide advice to the Coordinating Board regarding content, structure, currency and presentation of the Workforce Education Course Manual (WECM) and its courses; coordinate field engagement in processes, maintenance, and use of the WECM; and provide assistance in identifying new courses, new programs of study, developments within existing programs represented by courses in the manual, vertical and horizontal alignment of courses within programs, and obsolescence of programs of study and courses.

Rule 1.220, Authority and Specific Purposes, is amended to assign the Workforce Education Course Manual (WECM) Advisory Committee responsibilities to coordinate field engagement in maintaining the WECM, to identify new courses, and to identify new programs of study. This amendment removes the responsibility of the WECM Advisory Committee to make recommendations.

Rule 1.221, Definitions, is amended to provide clarity regarding the use of the term Board.

Rule 1.222, Committee Membership and Officers, is amended to provide the full title of Texas Education Code. The amendment also removes reference to workforce education and adds career and technical education, which includes workforce education and continuing education to align with the terminology in §§2.320 - 2.330 of this title (relating to Career and Technical Education Course Maintenance and Approval).

Rule 1.223, Duration, is amended to change the year that the WECM Advisory Committee will be abolished.

Rule 1.225, Tasks Assigned to the Committee, is amended to provide clarity regarding the specific tasks for which the WECM Advisory Committee is responsible. The amendment removes the responsibility to approve local need course requests and adds responsibilities related to the process of career and technical education course maintenance and approval as specified in §§2.320 - 2.330 of this title (relating to Career and Technical Education Course Maintenance and Approval).

Rule 1.226, Report to the Board; Evaluation of Committee Costs and Effectiveness, is amended to remove the requirement for the WECM Advisory Committee to report recommendations to the Board. This amendment aligns with the proposed amendment to §1.225 of this title (relating to Tasks Assigned to the Committee).

Lee Rector, Associate Commissioner for Workforce Education, 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.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Lee Rector, Associate Commissioner for Workforce Education, has also determined that for each year of the first five years the public benefit anticipated as the result of adopting this rule is the advisory committee will provide clarity to career and technical education courses through the review, development, revision, and deletion of courses from the Workforce Education Course Manual. This rule also clarifies the advisory committee’s role, and the process through which the career and technical education courses are reviewed for relevancy to the workforce's needs. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

Comments on the proposal may be submitted to Lee Rector, Associate Commissioner for Workforce Education, P.O. Box 12788, Austin, Texas 78711-2788, or via email at rulescomments@highered.texas.gov. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The amendment is proposed under Texas Education Code, §130.001, which provides the Coordinating Board with the authority to adopt rules and regulations for public junior colleges; and §61.026, granting the Coordinating Board authority to establish advisory committees.

The proposed amendment affects Texas Administrative Code, Title 19, Part 1, Chapter 1, Subchapter T.

§1.220.Authority and Specific Purposes of the Workforce Education Course Manual Advisory Committee.

(a) Authority: The authority for this subchapter is provided in the Texas Education Code, §130.001.

(b) Purposes. The Workforce Education Course Manual (WECM) Advisory Committee is created to provide the Board with advice [~~and recommendations~~] regarding content, structure, currency and presentation of the Workforce Education Course Manual (WECM) and its courses; coordinating [~~recommendations regarding~~] field engagement in processes, maintenance, and use of the WECM; and assistance in identifying new courses, new programs of study, developments within existing programs represented by courses in the manual, vertical and horizontal alignment of courses within programs, and obsolescence of programs of study and courses.

§1.221.Definition [~~Definitions~~].

The word and term "Board" shall mean the governing body of the agency known as the Texas Higher Education Coordinating Board, when used in this subchapter, unless the context clearly indicates otherwise. [~~The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:~~]

~~[(1) Board--The Texas Higher Education Coordinating Board.]~~

~~[(2) Commissioner--The Commissioner of Higher Education, the Chief Executive Officer of the Board.]~~

§1.222.Committee Membership and Officers.

(a) Membership shall consist of faculty and administrators from public community, state, and technical colleges with demonstrated leadership in career and technical education [~~workforce education~~].

(b) Membership on the committee shall include: representatives from public community, state, and technical colleges as defined in Texas Education Code [~~TEC~~], §61.003; and

(1) one (1) ex-officio representative from the Texas Association of College Technical Educators (TACTE), nominated by the TACTE Board; and

(2) one (1) ex-officio representative from the Texas Administrators of Continuing Education (TACE), nominated by the TACE Board; and

(3) one (1) ex-officio representative from the Texas Association of College Registrars and Admissions Officers (TACRAO), nominated by the TACRAO Board.

(d) Members of the committee shall select the chair and vice-chair who will each serve two-year terms. The vice-chair shall succeed as the presiding chair every two years.

(e) Members shall serve staggered terms of up to three years except an individual who serves first as vice-chair and then chair, who will serve a term of four years.

§1.223.Duration.

The committee shall be abolished no later than January 31, 2029 [~~2025~~], in accordance with Texas Government Code, §2110.008. It may be reestablished by the Board.

§1.225.Tasks Assigned to the Committee.

Tasks assigned the committee include [~~recommendations concerning~~]:

(1) the review [~~addition~~] of courses in [to] the workforce education course manual;

(2) the development of courses to be added to the workforce education course manual;

(3) [~~(2)~~] the deletion of courses from the workforce education course manual;

(4) [~~(3)~~] the revision of courses in the workforce education course manual;

~~[(4) the approval of local need course requests; and]~~

(5) determining the schedule and Classification of Instructional Program code for career and technical education course maintenance reviews and workshops;

~~[(5) other activities necessary for the maintenance of the workforce education course manual.]~~

(6) conducting career and technical education course maintenance reviews and workshops;

(7)transmitting any course that is revised or developed during a career and technical education course maintenance workshop to the Assistant Commissioner for consideration for approval, as specified in §2.322(1) and §2.328 of this title (relating to Definitions and Career and Technical Education Course Approval, respectively); and

(8) undertaking other activities necessary for the maintenance of the workforce education course manual.

§1.226.Report to the Board; Evaluation of Committee Costs and Effectiveness.

The committee chairperson shall report [~~any recommendations~~] to the Board on no less than an annual basis. The committee shall also report committee activities to the Board to allow the Board to properly evaluate the committee's work, usefulness, and the costs related to the committee's existence. The Board shall report its evaluation to the Legislative Budget Board in its biennial Legislative Appropriations Request.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401588

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6344

CHAPTER 2. ACADEMIC AND WORKFORCE EDUCATION

SUBCHAPTER A. GENERAL PROVISIONS

19 TAC §§2.3, 2.5, 2.7 - 2.9

The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to Texas Administrative Code, Title 19, Part 1, Chapter 2, Subchapter A, §§2.3, 2.5, and 2.7 - 2.9, concerning general provisions which sets out the policies and procedures institutions must follow to make administrative requests related to academic planning, policy, and programs. Specifically, proposed amendments will improve the administrability of chapter 2.

Rule 2.3, Definitions, list definitions broadly applicable to all subchapters in chapter 2. The proposed amendments add definitions for community and technical education program and course approval and provide alignment with federal definitions for doctoral degree programs. These definitions are aligned to those that appear throughout Board rules, including in the chapter 13 funding rules and in other subchapters that apply to program approval. Rule 2.3(22) is added to specify the Higher Education Regions of the state are those adopted by the Comptroller of Public Accounts. This revision clarifies the regions by placing them in rule and make them uniform across agencies.

Rule 2.5, General Criteria for Program Approval, contains a list of general criteria broadly applicable to all new program requests. The revisions include adding a criterion for program approval of consideration of whether the program provides a credential of value based on the methodology for funding set out in Board rules. The proposed amendments also clarify that a joint degree program may be approved as a substantive revision to an existing program if at least one of the programs is already approved.

Rule 2.7, Informal Notice and Comment on Proposed Local Programs, creates an opportunity for institutions of higher education to submit a comment related to program proposals submitted by nearby institutions. This notice and comment period provides a mechanism for the Board to collect information related to whether the program is needed by the state and local community and whether it unnecessarily duplicates existing offerings. The proposed amendments provide clarity on the notification and opportunity to comment on new degree programs.

Rule 2.8, Time Limit on Implementing Approved New Programs or Administrative Changes, establishes a time limit on the effectiveness of Board approvals. This provision ensures that the information used to grant the approval, including program need, remains current before a program is implemented. Proposed amendments will allow institutions to request an extension on program implementation and authorize the Commissioner to grant the extension for good cause.

Rule 2.9, Revisions and Modifications to an Approved Program, describes the process institutions must follow to notify the Coordinating Board about substantive and non-substantive revisions and modifications to approved programs and administrative structure. The proposed amendment will change the approval level for substantive revisions and modifications of approved degree programs. The amendments provide greater process and clarity for creation of a joint degree program and specificity as to which revisions require additional approval by the Board or Commissioner.

Elizabeth Mayer, Assistant Commissioner Academic and Health Affairs, 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.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Elizabeth Mayer, Assistant Commissioner Academic and Health Affairs, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section is improving administrability of the Coordinating Board's existing program approval process. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

Comments on the proposal may be submitted to Elizabeth Mayer, Assistant Commissioner Academic and Health Affairs, P.O. Box 12788, Austin, Texas 78711-2788, or via email at AHAcomments@highered.texas.gov. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The amendment is proposed under Texas Education Code, Section 61.0512, which provides the Coordinating Board with the authority to authorize new academic programs; and Section 61.003 which contains several definitions for terms used throughout this chapter. Other relevant provisions of law include Texas Education Code, Section 130.001, which grants the Coordinating Board the responsibility to adopt policies and establish general rules necessary to carry out statutory duties with respect to public junior colleges; and Sections 130.001 - 130.312, which provides authority to authorize baccalaureate degrees at public junior colleges.

The proposed amendments affect Texas Education Code Sections 61.003, 61.0512, 130.001, and 130.301-130.312.

§2.3.Definitions.

The following words and terms, when used in this chapter [~~subchapter~~], shall have the following meanings, unless otherwise defined in the subchapter:

(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) Assistant Commissioner--In this subchapter or a subchapter that cross-references to the provisions of this subchapter, Assistant Commissioner means the Assistant, Associate, or Deputy Commissioner designated by the Commissioner.

(8) [~~(7)~~] Board--The governing body of the agency known as the Texas Higher Education Coordinating Board.

(9) [~~(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 and 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) Career and Technical Education Certificate--A post-secondary credential, other than a degree, which a student earns upon successful completion of a workforce or continuing education program offered by an institution of higher education. Courses that comprise career and technical education certificates are listed in the Workforce Education Course Manual and the Academic Course Guide Manual and are subject to Board approval. For purposes of this chapter, career and technical education certificate means a certificate program as defined in Texas Education Code, §61.003(12)(C).

(11) Career and Technical Education Course--A college-level workforce or continuing education course offered by an institution of higher education which earns either semester credit hours or continuing education units toward satisfaction of a requirement necessary to obtain an industry-recognized credential, certificate, or applied associate degree. Career and technical education courses are listed in the Workforce Education Course Manual.

(12) [~~(10)~~] Certificate program--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. [Unless otherwise specified in these rules for purposes 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.]

(13) [~~(11)~~] CIP Codes--See "Texas Classification of Instructional Programs (CIP) Coding System."

(14) [~~(12)~~] Commissioner--The Commissioner of Higher Education.

(15) [~~(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.

(16) [~~(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.

(17) [~~(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.

(18) [~~(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, research doctoral, or professional practice doctoral degree.

(19) [~~(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.]~~

(20) [~~(19)~~] Embedded Credential--A course of study enabling a student to earn a credential that is wholly embedded within a degree program.

(21) [~~(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).

(22) Higher Education Regions--The Board adopts the economic regions of this state as defined by the Texas Comptroller of Public Accounts as the higher education state uniform service regions.

(23) [~~(21)~~] Master's Degree Program--The first graduate level degree, intermediate between a Baccalaureate degree program and Doctoral degree program.

(24) [~~(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.

(25) [~~(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.

(26) [~~(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.

(27) [~~(25)~~] Professional Practice Doctoral 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.).]

(28) [~~(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.

(29) [~~(27)~~] Public Health-Related Institution--Public health-related institutions that are supported by state funds.

(30) [~~(28)~~] Public Junior College--A public institution of higher education as defined in Tex. Educ. Code §61.003(2).

(31) [~~(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).

(32) [~~(30)~~] Public University--A general academic teaching institution as defined by Tex. Educ. Code §61.003(3).

(33) Research Doctoral Degree--An academic degree that typically represents the highest level of formal study or research in a given field and that requires completion of original research.

(34) [~~(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, which is typically offered over a 15-week period in a semester system or a 10-week period in a quarter system.

(35) [~~(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.

(36) [~~(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).

(37) [~~(34)~~] Texas Success Initiative (TSI)--A comprehensive program of assessment, advising, developmental education, and other strategies to ensure college readiness. The rules governing the Texas Success Initiative are established in Chapter 4, Subchapter C. [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).]

(38) [~~(35)~~] Tracks of Study--Specialized areas of study within a single degree program.

(39) [~~(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.

(40) [~~(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.

§2.5.General Criteria for Program Approval.

(a) In addition to any criteria specified in statute or this chapter for a specific program approval, the Assistant Commissioner, Commissioner, or Board, as applicable, shall consider the following factors:

(1) Evidence that the program is needed by the state and the local community, as demonstrated by student demand for similar programs, labor market information, and value of the credential;

(2) Whether the program unnecessarily duplicates programs offered by other institutions of higher education or private or independent institutions of higher education, as demonstrated by capacity of existing programs and need for additional graduates in the field;

(3) Comments provided to the Board from institutions noticed under §2.7 of this subchapter;

(4) Whether the program has adequate financing from legislative appropriation, funds allocated by the Board, or funds from other sources;

(5) Whether the program's cost is reasonable and provides a value to students and the state when considering the cost of tuition, source(s) of funding, availability of other similar programs, and the earnings of students or graduates of similar credential programs in the state to ensure the efficient and effective use of higher education resources;

(6) Whether the program provides a credential of value as defined in chapter 13, subchapter S, of Board Rules [~~has necessary faculty and other resources including support staff to ensure student success~~];

(7) Whether and how the program aligns with the metrics and objectives of the Board's Long-Range Master Plan for Higher Education;

(8) Whether the program has necessary faculty and other resources including support staff to ensure student success;

(9) [~~(8)~~] Whether the program meets academic or workforce standards specified by law or prescribed by Board rule, including rules adopted by the Board for purposes of this section [~~, or workforce standards established by the Texas Workforce Investment Council~~]; and

(10) [~~(9)~~] Past compliance history and program quality of the same or similar programs, where applicable.

(b) In the event of conflict between this rule and a more specific rule regarding program approval, the more specific rule shall control.

(c) A request for approval of a joint degree program that does not have one or more existing degree programs that previously has been approved is considered a new degree program and is subject to new degree program approval requirements.

§2.7.Informal Notice and Comment on Proposed Local Programs.

(a) As soon as practicable, but not later than the sixtieth day after an institution submits an administratively complete application for approval, Board Staff shall provide informal notice and opportunity for comment to [~~other~~] institutions of higher education [~~in the local community~~] that offer substantially similar programs in the region, as defined by the Board, where the program will be delivered.

(b)Board Staff shall provide notification of the applicant institution's request for approval and allow not fewer than thirty days for a noticed institution to provide comments to Board Staff regarding:

(1) State or local need for the proposed program; or

(2) Evidence of whether the program unnecessarily duplicates programs offered by public, private, or independent institutions in the Higher Education Regions that offer substantially similar programs.

(c)When considering whether to approve a program requiring approval under this chapter, the Assistant Commissioner, Commissioner, or Board shall consider the comments that the noticed institutions provide to the Board under this section.

(d) An institution may submit a Public Information Request to receive a copy of all institutional comments received during the 30-day comment period.

§2.8.Time Limit on Implementing Approved New Programs or Administrative Changes.

(a) Unless otherwise stipulated at the time of approval, if an approved new degree program is not established within two years of approval, that approval is no longer valid. [An institution may submit a request to the Assistant Commissioner for approval to lengthen that time limit by one additional year for a compelling academic reason. The Assistant Commissioner has discretion to approve or deny the request.]

(b) An institution may submit a request to the Assistant Commissioner for approval to lengthen that time limit in subsection (a) by up to five years from the approval date. The request must include a description of the good cause or compelling academic reason for extending the program implementation timeline. [~~Unless otherwise stipulated at the time of approval, if approved administrative changes are not implemented within two years of approval, that approval is no longer valid.~~]

(c) The Commissioner has discretion to approve or deny the request if the Commissioner determines there is good cause for the extension, and it is in the best interest of the students to be served by the program.

(d) Unless otherwise stipulated at the time of approval, if the institution does not implement the approved administrative changes within two years of approval, that approval is no longer valid.

(e) [~~(c)~~] Provisions of this section apply to all approvals and changes under this chapter.

§2.9.Revisions and Modifications to an Approved Program.

(a) Substantive revisions and modifications that materially alter the nature of the program, physical location, or modality of delivery, as determined by the [~~Assistant~~] Commissioner, include, but are not limited to:

(1) Closing the program in one location and moving it to a second location; [~~and~~]

(2) Changing the funding from self-supported, as defined in subchapter O of this chapter (relating to Approval Process and Required Reporting for Self-Supporting Degree Program), to formula-funded or vice versa;

(3) Adding a new formula-funded or self-supported track to an existing program; and

(4) Creating a joint program that includes one or more existing approved degree programs.

(b) For a program that initially required Board Approval beginning as of September 1, 2023, and doctoral and professional programs approved by the Board on or before September 1, 2023, any substantive revision or modification to that program will require Board Approval under §2.4 of this subchapter. For all other programs, including programs that initially required Board Approval prior to September 1, 2023, any substantive revision or modification will require Assistant Commissioner Approval under §2.4(a)(2) of this subchapter.

(c) Non-substantive revisions and modifications that do not materially alter the nature of the program, location, or modality of delivery, as determined by the Assistant Commissioner, include, but are not limited to:

(1) Increasing the number of semester credit hours of a program for reasons other than a change in programmatic accreditation requirements;

(2) Consolidating a program with one or more existing programs;

(3) Offering a program in an off-campus face-to-face format;

(4) Altering any condition listed in the program approval notification;

(5) Changing the CIP Code of the program;

(6) Increasing the number of semester credit hours if the increase is due to a change in programmatic accreditation requirements;

(7) Reducing the number of semester credit hours, so long as the reduction does not reduce the number of required hours below the minimum requirements of the institutional accreditor, program accreditors, and licensing bodies, if applicable;

(8) Changing the Degree Title or Designation; and

(9) Other non-substantive revisions that do not materially alter the nature of the program, location, or modality of delivery, as determined by the Assistant Commissioner.

(d) The non-substantive revisions and modifications in subsection (c)(1) - (5) of this section are subject to Assistant Commissioner Approval Regular Review under §2.4 of this subchapter. All other non-substantive revisions and modifications are subject to Assistant Commissioner Approval Expedited Review under §2.4(a)(2)(B) of this subchapter.

(e) The following program revisions or modifications require Notification Only under §2.4(1) of this subchapter:

(1) A public university or [~~Public universities and~~] public health-related institution [~~institutions~~] shall [~~must~~] notify the Coordinating Board of changes to administrative units, including creation, consolidation, or closure of an administrative unit. Coordinating Board Staff will update the institution's Program Inventory pursuant to this notification.

(2) All institutions shall [~~must~~] notify the Coordinating Board of the intent to offer an approved program through distance education following the procedures in §2.206 of this chapter (relating to Distant Education Degree or Certificate Program Notification).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401589

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6182

SUBCHAPTER C. PRELIMINARY PLANNING PROCESS FOR NEW DEGREE PROGRAMS

19 TAC §2.41

The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to Texas Administrative Code, Title 19, Part 1, Chapter 2, Subchapter C, §2.41, concerning the preliminary planning process for new degree programs. Specifically, the proposed amendments will include adding language to make clear this section applies to proposed degree programs.

Texas Education Code, §61.0512(b), requires institutions to notify the Coordinating Board prior to beginning preliminary planning for a new degree program. An institution is planning for a new degree program if it takes any action that leads to the preparation of a proposal for a new degree program.

Rule 2.41, Planning Notification: Notice of Intent to Plan, provides the information required for preliminary Planning Notifications for proposed degree programs. This rule also outlines Board requirements for providing labor market and other relevant information to institutions following submission of the Planning Notification.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Elizabeth Mayer, Assistant Commissioner Academic and Health Affairs, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section is improving the administrability of the Board's existing certificate approval process. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

The amendment is proposed under Texas Education Code, §61.0512(b), which requires Institutions to notify the Board prior to beginning preliminary planning for a new degree program.

The proposed amendments affect Texas Education Code, §61.0512(b).

§2.41.Planning Notification: Notice of Intent to Plan.

(a) Prior to the institution seeking approval for a new degree program from its governing board, each institution's Chief Academic Officer, or delegate, shall provide notification to Board Staff of the institution's intent to engage in planning for a new degree program. The Planning Notification shall contain the following information:

(1) The proposed title of the degree;

(2) The proposed degree designation;

(3) The proposed CIP Code; and

(4) Anticipated date of submission.

(b) Not later than sixty days after Board Staff receives the Planning Notification, Board Staff shall provide the [~~to that~~] institution a report including available labor market information and other relevant data to inform the institution's planning for the proposed program[~~, including data about the number of similar programs approved in an area likely to be served by the applicant institution~~].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401590

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6182

SUBCHAPTER M. APPROVAL PROCESS FOR LOCAL NEEDS COURSES

19 TAC §§2.290 - 2.297

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new rules in Texas Administrative Code, Title 19, Part 1, Chapter 2, Subchapter M, §§2.290 - 2.297, concerning Career and Technical Education Local Need course approval. Specifically, this new subchapter will clarify the local need course development and approval process.

The Coordinating Board proposes the establishment of the career and technical education local need course approval subchapter to better define the criteria for a local need course and the process for which an institution receives approval of the course for use in a career and technical education program at their institution. Approval of a local need course is how a new course is added to the Workforce Education Course Manual database when there is no course in the database to address a specific local workforce need. The Coordinating Board maintains a list of approved programs in a Program Inventory for each public junior, technical and state college, and the list of approved courses in the Workforce Education Course Manual for use by public junior, technical, and state colleges during program development. Establishing an approval procedure for courses ensures the accuracy of the inventories, which is necessary for the Board to carry out its duties.

Rule 2.290, Purpose, provides clarity to the institution on the process to receive local need course approval.

Rule 2.291, Authority, states the authority, which is based on Texas Education Code, §130.001(b)(3), and the purpose of maintaining a list of approved programs in a Program Inventory for each public junior, technical and state college, and the list of approved courses in the Workforce Education Course Manual (WECM) for use by public junior, technical, and state colleges during program development. Establishing this local need course approval rule will ensure that accurate inventories of courses will be maintained by the Coordinating Board for use by institutions.

Rule 2.292, Applicability, establishes that this subchapter will apply to all public two-year institutions seeking approval of a proposed local need course.

Rule 2.293, Definitions, paragraph (2) ("Career and Technical Education Course") provides the definition of a Career and Technical Education (CTE) course. Paragraph (4) ("Local Need Course") defines a local need course and where the course will be inventoried for use by an institution. Paragraph (5) ("Special Topics Course") provides the definition of a special topics course and clarification on the difference between a career and technical education local need course in the WECM and a special topics course. Paragraph (6) ("Workforce Education Course Manual (WECM)") defines the Workforce Education Course Manual and the use of the courses in certificate and program development.

Rule 2.294, Local Need Course Approval Requirements, provides clarity to the institution on the requirements of local need course approval, as well as the location of the course in the WECM database once the course is approved. The proposed local need course approval process brings approval of new courses for inclusion in the WECM in line with standard approval processes for new programs in the Coordinating Board's Chapter 2 rules.

Rule 2.295, Administrative Completeness, defines the application, process, and timeline for the institution to submit a local need course for approval. This provision clearly sets out required elements of an application for a local need course approval and gives institutions notice as to anticipated timelines for the Coordinating Board to deem an application complete.

Rule 2.296, Criteria for Proposed Course Approval, defines the factors to submit an application and the elements needed in a local need course for approval. These criteria ensure that the Coordinating Board does not approve duplicative course entries in the WECM database and requires institutions to provide sufficient descriptive information about the proposed course for the Coordinating Board to maintain and administer courses in WECM.

Rule 2.297, Effective Date of Rules, defines the date of rule implementation. The delayed effective date of the rules gives institutions advance notice of the Coordinating Board's changing requirements and allows the agency time to align internal administrative processes with changing procedural requirements.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Lee Rector, Associate Commissioner for Workforce Education, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as the result of adopting this rule is to provide clarification and process for a local need course to be approved and included in the WECM database to be utilized by the submitting institution for use in a career and technical education program. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

The new section is proposed under Texas Education Code, §130.001(b)(3), to support Texas Education Code, §61.0512, which gives the Coordinating Board authority to approve new degree or certificate programs. The rules are also proposed under the authority of Texas Education Code chapter 130A which provides funding to public junior colleges for approved courses and programs.

The proposed new section affects Texas Education Code, §§51.4034 and 130A.

§2.290.Purpose.

The purpose of this subchapter is to establish the process for approval of a proposed local need course submitted by a public junior, technical, or state college for inclusion in the Workforce Education Course Manual.

§2.291.Authority.

The authority for this subchapter is provided in the Texas Education Code, §130.001(b)(3), to support Texas Education Code, §61.0512, which gives the Board authority to approve new degree or certificate programs. The Board maintains a list of approved programs in a Program Inventory for each public junior, technical and state college, and the list of approved courses in the Workforce Education Course Manual for use by public junior, technical, and state colleges during program development. Establishing an approval procedure for courses ensures the accuracy of the inventories, which is necessary for the Board to carry out its duties under Texas Education Code, §61.0512.

§2.292.Applicability.

This subchapter applies to all public two-year institutions seeking approval of a proposed local need course.

§2.293.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. The definitions in §2.2 of this chapter (relating to Definitions), apply for this subchapter unless a more specific definition for the same term is indicated in this rule.

(1) Assistant Commissioner--In this subchapter means the Assistant, Associate, or Deputy Commissioner designated by the Commissioner.

(2) Career and Technical Education Course--A college-level workforce or continuing education course offered by an institution of higher education which earns either semester credit hours or continuing education units toward satisfaction of a requirement necessary to obtain an industry-recognized credential, certificate, or applied associate degree. Career and technical education courses are listed in the Workforce Education Course Manual.

(3) Institution--A public two-year institution of higher education, including a public junior, technical, or state college.

(4) Local Need Course--A course that is not contained in the Workforce Education Course Manual database and for which approval is requested by a specific institution. A Local Need Course, upon approval, is added to the institution's course inventory in the Workforce Education Course Manual database for use in a career and technical education program. A Special Topics Course is excluded from this definition.

(5) Special Topics Course--A course that is for temporary use or transitional content. A Special Topics Course should be used only when course content and end of course outcomes do not exist in a career and technical education course contained in the Workforce Education Course Manual database. A Special Topics Course may address recently identified current events, knowledge, and skills pertinent to the technical area and relevant to the occupational development of the student.

(6) Workforce Education Course Manual (WECM)--An online database composed of the Board's statewide inventory of approved career and technical education courses and local need courses available for institutions to use in industry-recognized credentials, certificates, and applied associate degree programs.

§2.294.Local Need Course Approval Requirements.

(a) The Board requires an institution to obtain approval of a proposed local need course for inclusion in the Workforce Education Course Manual database and the institution's course inventory. An institution shall designate a proposed local need course as offering semester credit hours or continuing education units.

(b) Course Approval Process.

(1) Course Approval. A proposed local need course may be approved by the Assistant Commissioner if the course is administratively complete as described in §2.295 of this subchapter (relating to Administrative Completeness) and meets all the requirements established by §2.296 of this subchapter (relating to Criteria for Proposed Course Approval).

(2) If the Assistant Commissioner recommends denial of a proposed local need course or does not take action to approve the proposed course within sixty (60) days of Board Staff's determination that the course proposal is administratively complete, then the proposed local need course approval will be subject to the process for Commissioner approval. The Commissioner's decision is final and may not be appealed.

(3) Upon approval, a local need course will be listed in local need course section of the WECM database and available to the institution for use in a career and technical education certificate or applied associate degree.

§2.295.Administrative Completeness.

(a) An institution must submit a fully completed application for each proposed course for which approval is required that includes:

(1) each required element in §2.296 of this subchapter (relating to Criteria for Proposed Course Approval); and

(2) the required Coordinating Board form for the proposed course approval.

(b) Board Staff shall determine whether an application is administratively complete and notify the institution not later than the thirtieth business day after receipt.

(c) If Coordinating Board Staff determines that the application is incomplete or additional information or documentation is needed, the institution must respond with all the requested information or documentation within thirty (30) business days, or the request will be deemed incomplete and returned to the institution.

(d) An institution may resubmit an application that was returned as incomplete as soon as it has obtained the requested information or documentation. This submission will be considered a new application.

§2.296.Criteria for Proposed Course Approval.

In addition to any administrative completeness criteria specified in statute or this chapter for approval of a proposed course, the Assistant Commissioner shall ensure the application satisfies the following factors:

(1) There is no career and technical education course in the WECM database that database that has equivalent end of course outcomes to the proposed course.

(2) The proposed course is designated as either semester credit hours or continuing education units and assigned actual contact hours.

(3) The submission for consideration of the proposed course is complete and includes:

(A) The course title that is related to the course content;

(B) A six-digit CIP code;,

(D) The type of instruction;

(E) Suggested prerequisite, if applicable;

(F) A justification of the need for the course;

(G) End of course outcomes;

(H) Contact information for the individual authorized to request approval of the proposed course; and

(I) Contact information for the individual who is authorized to respond to questions regarding the submission.

§2.297.Effective Date of Rules.

This subchapter applies to a local need course for which an institution seeks approval on or after September 1, 2024.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401591

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6344

SUBCHAPTER N. CAREER AND TECHNICAL EDUCATION COURSE MAINTENANCE AND APPROVAL

19 TAC §§2.320 - 2.330

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new rules in Texas Administrative Code, Title 19, Part 1, Chapter 2, Subchapter N, §§2.320 - 2.330, concerning the process for maintenance and approval of a career and technical education course in the Workforce Education Course Manual (WECM). Specifically, this new subchapter will clarify the career and technical education course maintenance and approval process, including but not limited to the review, revision, addition and archival of courses in the WECM. The subchapter also clarifies the role of the WECM Advisory Committee in maintenance and approval of a career and technical education course for the WECM. Ensuring that the WECM database contains an up-to-date listing of courses is critical, as this listing represents the courses public two-year institutions may use without prior approval from the Coordinating Board. The procedures were previously specified in the Coordinating Board's Guidelines for Instructional Programs in Workforce Education. The Coordinating Board is updating, streamlining, and clarifying these processes and procedure in rule to provide additional oversight and clarity for institutions of higher education.

Rule 2.320, Purpose, provides clarity to the field on the process of career and technical education maintenance and approval.

Rule 2.321, Authority, establishes the authority for this subchapter under Texas Education Code, §§61.0512 and 130.001.

Rule 2.322, Definitions, establishes standard definitions for roles and career and technical and workforce education terms necessary for the subchapter. Several definitions relate to relevant entities or persons with decision-making capacity or expertise relevant for the career and technical education course approval process. For example, paragraph (1) ("Assistant Commissioner") defines the various leadership positions that may be designated by the Commissioner for approvals. Paragraph (4) ("Institution") provides the definition of the public two-year higher education institutions the rule applies. Paragraph (8) ("Subject Matter Expert") defines the institution representative with expertise in the discipline and to be able to provide input on course content in a career and technical education course during course revision and development. Subject matter experts have business and industry experience in the discipline and can define the knowledge and skills needed to meet industry needs. Paragraph (9) ("Workforce Education Course Manual (WECM) Advisory Committee") defines the role of the advisory committee regarding the WECM database. The WECM advisory committee provides a feedback mechanism to the Coordinating Board on courses in the WECM database. The advisory committee provides a process to maintain courses in the database to stay current with industry-defined knowledge and skills.

Rule 2.322, Definitions, also contains definitions for concepts and terms specific for career and technical and workforce education. Paragraph (2) ("Career and Technical Education Course") provides the definition of a Career and Technical Education (CTE) course approved in the WECM. CTE courses are placed together in a sequence to develop a program at an institution. Paragraph (3) ("End of Course Outcomes") defines what the student will be able to demonstrate they have learned during a course and are written by subject matter experts during course revision or development. End of course outcomes are developed by subject matter experts at different instructional skill levels of introduction, intermediate and advanced level to provide a progression of skills as a student completes a program. Paragraph (5) ("Local Need Course") defines where the course will be inventoried for use by an institution. Local Need courses are developed by an institution when a skillset is needed to meet local industry needs, and a course is not available in the WECM database with the end of course outcomes to meet that need. Paragraph (6) ("Rubric") defines what the rubric is and what a rubric is used to label in a WECM course. Rubrics are developed to provide a group of courses to define a discipline with introduction, intermediate and advanced end of course outcomes. The courses are typically selected from a single rubric by the institution to develop a logically sequenced program for a discipline. Paragraph (7) ("Special Topics Course") provides the definition of a special topics course and clarification on the difference between a career and technical education course, and special topics course in the WECM. Special Topics courses are used to incorporate transitional or emerging content into a program.

Paragraph (10) ("Workforce Education Course Manual (WECM) Database") defines the Workforce Education Course Manual database and the use of the career and technical education courses in certificate and program development. WECM database is the repository of approved career and technical education courses used during revision or development in programs at an institution.

Rule 2.323, Career and Technical Education Course Maintenance Process, gives an overview of the basic components of the course maintenance process as a whole. Paragraph (1) ("Career and Technical Education Course Maintenance Addition") defines how a course is developed for the WECM database. Courses are developed by subject matter experts to meet industry-defined skill and knowledge requirements. A local need course used by four or more institutions may be added to the WECM database so other colleges can access it to use in their programs. Paragraph (2) ("Career and Technical Education Course Maintenance Archival") relates to archival, which is the process to remove unused, obsolete, or duplicate courses in the WECM database. WECM database course frequency data is reviewed by the team of subject matter experts and decisions are made to archive a course if the course has had no institution use the course in the previous five years. Paragraph (3) ("Career and Technical Education Course Maintenance Review") is the starting point to the course maintenance process on whether a course in the WECM database needs to stay in the WECM database as presented, whether the course needs to be revised or whether the course needs to be archived. Several factors are considered by subject matter experts during the review process of a current career and technical education course. Based on the factors defined in the section the subject matter experts provide feedback on whether the course needs to continue to be included in the WECM database. Paragraph (4) ("Career and Technical Education Course Maintenance Revision") describes how the subject matter experts decide whether a course needs to be revised to stay current with industry-defined skills and knowledge. When a course is revised subject matter experts revise the career and technical education course to stay current with industry-defined skills and knowledge. Paragraph (5) ("Career and Technical Education Course Maintenance Workshop") is performed on a schedule cycle developed by the WECM advisory committee based on Classification of Instructional Program (CIP) code. Subject matter experts participate in the workshop to review career and technical education courses in their discipline. CTE courses are reviewed for currency with industry-defined skill and knowledge, then revised if necessary to meet industry-defined skill and knowledge. During a career and technical education course maintenance workshop a course may be added based on defined factors to meet industry-defined standards, or a course may be archived during a WECM maintenance workshop after review by subject matter experts and there is compelling evidence the course is no longer needed.

Rule 2.324, Career and Technical Education Course Maintenance Review, defines the review process cycle and factors to consider prior to scheduling a course maintenance review workshop. The schedule for course review is developed by the WECM Advisory Committee based on Classification of Instructional Program (CIP) code. The rule also lists additional factors that may elicit a course maintenance review workshop sooner than the scheduled cycle. The WECM Advisory Committee develops the schedule of career and technical education course maintenance review workshops based on the listed criteria. The rule also describes the participants for the course maintenance review workshop and defines the tasks the participants in the workshop must carry out.

Rule 2.325, Career and Technical Education Course Maintenance Revision, describes the process for revising a current course. Subject matter experts review each course in a discipline to see if the course meets current industry-defined skill and knowledge requirements. The rule describes which course elements the team of subject matter experts may recommend for revision and the process for adopting and presenting recommendations to the WECM Advisory Committee and Assistant Commissioner for final approval.

Rule 2.326, Career and Technical Education Course Maintenance Addition, describes the process for adding a course to the WECM database. After the review of all courses in a discipline subject matter experts may recommend the addition of a course based on factors/triggers listed in §2.324(b). The rule defines the required elements of a new course as listed in §2.329, as well as the process for the subject matter experts to adopt a recommendation for course addition, present the recommendation to the WECM Advisory Committee, and transmit the recommendation to the Assistant Commissioner for approval.

Rule 2.327, Career and Technical Education Course Maintenance Archival, describes how a course may be archived in the WECM database, removing it from the list of courses an institution may use. After the review of all courses in a discipline subject matter experts may recommend archival of a course to remove an unused, obsolete, or duplicate course from the WECM database. The recommendation from subject matter experts is based on a course duplicated in the WECM database, lack of usage based on the Coordinating Board course frequency data shared with subject matter experts on the discipline during a course maintenance review workshop or a course no longer meeting current industry-defined skill and knowledge. The rule allows for a phase-out period, defining the length of time an archived course will remain active in the WECM database and allowing the institutions time to remove the course from their program.

Rule 2.328, Career and Technical Education Course Approval, defines the Coordinating Board individual designated by the Commissioner for approval of each career and technical education course to be included in the Workforce Education Course Manual (WECM) database. The rule states the process, criteria and timeline for course approval or denial. Final approval of the course will result in the addition of the course to the WECM database, permitting the institution to teach the course without prior approval from the Coordinating Board.

Rule 2.329, Criteria for Proposed Course Approval, describes the criteria used by the Coordinating Board for determining whether to approve a course for inclusion in the WECM database. These criteria include evaluating whether an equivalent WECM course already exists, whether the course is counted in semester credit hours or continuing education units, and whether the necessary course description elements are complete.

Rule 2.330, Effective Date of Rules, defines the date of rule implementation.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Lee Rector, Associate Commissioner for Workforce Education, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as the result of adopting this rule is to establish the process for maintenance and approval of a career and technical education course in the Workforce Education Course Manual database. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

The new section is proposed under Texas Education Code, Sections 61.0512, 130.001(3) and 130A.

The proposed new section affects Texas Education Code, Section 51.4034.

§2.320.Purpose.

The purpose of this subchapter is to establish the process for maintenance and approval of a career and technical education course in the Workforce Education Course Manual database.

§2.321.Authority.

The authority for this subchapter is provided in the Texas Education Code, §130.001(3) to support Texas Education Code, §61.0512, which gives the Board authority to approve new degree or certificate programs. The Board maintains a list of approved programs in a Program Inventory for each public junior, technical and state college, and the list of approved courses in the Workforce Education Course Manual database for use by public junior, technical, and state colleges during program development. Establishing a course maintenance and approval procedure ensures the currency of course content and the accuracy of the list of courses in the Workforce Education Course Manual (WECM) database, which is necessary for the Board to carry out its duties under Texas Education Code, §61.0512. WECM is part of financial reporting necessary to carry out Texas Education Code, Chapter 130A. Maintenance of WECM is necessary to carry out Texas Education Code, §51.4034.

§2.322.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. The definitions in §2.3 of this chapter (relating to Definitions), apply for this subchapter unless a more specific definition for the same term is indicated in this rule.

(1) Assistant Commissioner--In this subchapter means the Assistant, Associate, or Deputy Commissioner designated by the Commissioner.

(3) End of Course Outcomes--The specific and measurable statements that define the knowledge and skills learners will demonstrate by the completion of a course.

(4) Institution--In this subchapter means any public junior college, public community college, public technical institute, or public state college.

(5) Local Need Course--A course that is not contained in the Workforce Education Course Manual database and for which approval is requested by a specific institution. A Local Need Course, upon approval, is added to the institution's course inventory in the Workforce Education Course Manual database for use in a career and technical education program.

(6) Rubric--An identifier assigned to a career and technical education course for classifying, recording, and reporting workforce education courses. A rubric is not intended to drive the selection of course offerings but to serve as a guide once an institution has identified the course description and end of course outcomes.

(7) Special Topics Course--A course that is for temporary use or transitional content. A Special Topics course should be used only when course content and end of course outcomes do not exist in a career and technical education course contained in the Workforce Education Course Manual database. A Special Topics Course may address recently identified current events, knowledge, and skills pertinent to the technical area and relevant to the occupational development of the student.

(8) Subject Matter Expert--A public junior, technical or state college representative who is an expert in the knowledge, skills, and abilities of a specific career and technical education course.

(9) Workforce Education Course Manual (WECM) Advisory Committee--The WECM Advisory Committee provides the Coordinating Board with advice regarding the content, structure, and currency of courses in the WECM database, as established in chapter 1, subchapter T, of this title (relating to Workforce Education Course Manual Advisory Committee). The committee is responsible for field engagement in the maintenance and use of the WECM database and courses contained within the database.

(10) Workforce Education Course Manual (WECM) Database--An online database composed of the Coordinating Board's statewide inventory of approved career and technical education courses available for Institutions to use in industry-recognized credentials, certificates, and applied associate degree programs.

§2.323.Career and Technical Education Course Maintenance Process.

The Career and Technical Education Course Maintenance Process includes the following:

(1) Career and Technical Education Course Maintenance Addition--The development and

addition of a new career and technical education course to the WECM database. The content of the new course may be drawn from industry-defined skill and knowledge requirements or a local need course that is used by four or more institutions. The development of a course is performed by a team of subject matter experts.

(2) Career and Technical Education Course Maintenance Archival--The archiving of a career and technical education course to remove an unused, obsolete, or duplicate course from the WECM database. The review of a course to be archived is performed by a team of subject matter experts.

(3) Career and Technical Education Course Maintenance Review--The review of a course contained in the WECM database. The review of a course is performed by a team of subject matter experts.

(4) Career and Technical Education Course Maintenance Revision--The revision to a career and technical education course contained in the WECM database to ensure that content and outcomes align with current need and/or regulations. The revision of a course is performed by a team of subject matter experts.

(5) Career and Technical Education Course Maintenance Workshop--A workshop to determine the relevance and currency of a career and technical education course contained in the WECM database. The workshop shall be conducted by a team of subject matter experts. The WECM Advisory Committee shall determine the schedule and the Classification of Instructional Program code for each course to be reviewed. A course maintenance workshop may result in:

(A) The revision of a career and technical education course;

(B) The addition of a career and technical education course; or

§2.324.Career and Technical Education Course Maintenance Review.

(a) A team of subject matter experts must review a Career and Technical Education course every four years to ensure the currency of the course content. A team of subject matter experts may review a Career and Technical Education course more frequently as indicated by career and technical education course maintenances triggers.

(b) The WECM Advisory Committee shall consider several factors in determining the need to conduct a course maintenance review workshop, including:

(1) Emerging and/or changing technologies;

(2) Change in business/industry standards;

(3) State or national credentialing requirements;

(4) Employer-defined skill requirements;

(5) Comments from one or more institutions;

(6) Need identified by a statewide curriculum project;

(7) Coordinating Board request for a course maintenance review; or

(8) The timeline of a course's maintenance review cycle, as specified by a schedule developed by the WECM Advisory Committee.

(c) The WECM Advisory Committee will determine a schedule for career and technical education course maintenance review workshop in a designated Classification of Instructional Program code.

(d) A team of subject matter experts shall perform the review.

(e) The review shall determine:

(1) If a course will continue to be offered in the WECM database in its current form;

(2) If a course requires revision;

(3) If a course requires archiving;

(4) If a new course is necessary to address knowledge, skills, and abilities to meet the needs of business and industry;

(5) If two or more local need courses with similar end of course outcomes should be consolidated into one career and technical education course to address the needs of multiple institutions; or

(6) If two or more special topics courses with similar end of course outcomes should be consolidated into one career and technical education course to address the needs of multiple institutions.

§2.325.Career and Technical Education Course Maintenance Revision.

(a) Subject matter experts at a career and technical education course maintenance workshop may recommend revising a course in the WECM database.

(b) Revised course elements may include:

(1) End of course outcomes;

(2) Course description;

(3) Course title;

(4) Contact hour range;

(5) Semester credit hours or continuing education units;

(6) Classification of Instructional Program code; and

(7) Rubric.

(c) The team of subject matter experts may vote to recommend the elements to be revised and the final revisions to the WECM Advisory Committee.

(d) The team of subject matter experts shall present the revised course to the WECM Advisory Committee.

(e) The WECM Advisory Committee shall review the revised course and, following any action required based on the review, the Chair of the WECM Advisory Committee shall transmit the course on the requisite form to the Coordinating Board with a request for approval.

(f) An Assistant Commissioner must review and approve each career and technical education course submitted for inclusion in the WECM database as specified in §2.328 of this subchapter (relating to Career and Technical Education Course Approval).

(g) If approved, institutions may use the revised course when posted by the Coordinating Board in the WECM database.

§2.326.Career and Technical Education Course Maintenance Addition.

(a) Subject matter experts at a career and technical education course maintenance workshop may recommend adding a course to the WECM database.

(b) A new course shall include the following elements:

(1) End of course outcomes;

(2) Course description;

(3) Course title;

(4) Contact hour range;

(5) Semester credit hours or continuing education units;

(6) Classification of Instructional Program code; and

(7) Rubric.

(c) The team of subject matter experts may vote to recommend the elements of the new course to the WECM Advisory Committee.

(d) The team of subject matter experts shall present the new course to the WECM Advisory Committee.

(e) The WECM Advisory Committee shall review the new course and, following any action required based on the review, the Chair of the WECM Advisory Committee shall transmit the course on the requisite form to the Coordinating Board with a request for approval.

(g) If approved, institutions may use the new course when posted by the Coordinating Board in the WECM database.

§2.327.Career and Technical Education Course Maintenance Archival.

(a) Subject matter experts at a career and technical education course maintenance workshop may recommend archiving a course in the WECM database.

(b) A course may be archived if:

(1) The end of course outcomes duplicate those of another course;

(2) The course has not been used for five years, as determined by the Coordinating Board's Data Frequency Report; or

(3) The course is composed of content that no longer meets the needs of industry.

(c) An archived course will remain active for a minimum of one year, beginning September 1 and ending August 31 of the following year.

(d) An institution shall not use an archived course in a career and technical education program after August 31 in the year after archival.

(e) A team of subject matter experts will identify courses that have not been used for five years or that are no longer relevant to the needs of industry for archiving each January. These courses are archived effective the following August 31st.

§2.328.Career and Technical Education Course Approval.

(a) An Assistant Commissioner must approve each career and technical education course for inclusion in the Workforce Education Course Manual (WECM) database.

(b) An Assistant Commissioner may approve a proposed career and technical education course if the course meets all the requirements established by §2.329 of this subchapter (relating to Criteria for Proposed Course Approval). If the Assistant Commissioner recommends denial of a proposed career and technical education course or does not take action to approve the proposed course within 60 days of Board Staff's determination that the proposed course approval request is administratively complete, then the proposed career and technical education course approval will be subject to the process for Commissioner Approval. The Commissioner's decision is final and may not be appealed.

(d) All courses in the WECM may be taught by any institution without prior approval by the Board. Courses in the WECM are valid for institutions to use in career and technical education programs.

(e) Approved career and technical education courses remain in the WECM database until they are archived.

§2.329.Criteria for Proposed Course Approval.

In addition to any administrative completeness criteria specified in statute or this chapter for approval of a proposed course, the Assistant Commissioner shall consider the following factors:

(1) There is no career and technical education course in the WECM database that has equivalent end of course outcomes to the proposed course.

(2) The proposed course is designated as either semester credit hours or continuing education units and assigned contact hours.

(3) The submission for consideration of the proposed course is complete and includes:

(A) A course title;

(B) A six-digit Classification of Instructional Program code;

(D) The type of instruction;

(E) Suggested prerequisite, if applicable;

(F) A justification of the need for the course; and

(G) End of course outcomes.

§2.330.Effective Date of Rules.

This subchapter applies to a career and technical education course that is subject to course maintenance and approval on or after September 1, 2024.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401592

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6344

CHAPTER 13. FINANCIAL PLANNING

SUBCHAPTER Q. FINANCIAL AID FOR SWIFT TRANSFER (FAST) PROGRAM

19 TAC §§13.501 - 13.503

The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to Texas Administrative Code, Title 19, Part 1, Chapter 13, Subchapter Q, §§13.501 - 13.503, concerning the Financial Aid for Swift Transfer (FAST) Program. Specifically, this amendment will align definitions in the FAST program with those used in Texas Administrative Code, Title 19, Part 1, Chapter 4, Subchapter D, concerning Dual Credit Partnerships Between Secondary Schools and Texas Public Colleges.

Rule 13.501 is amended to align the definitions of "career and technical education course," "credit," "dual credit course," "equivalent of a semester credit hour," and "semester credit hour." The definition of "school district" is added. These changes are proposed to ensure greater alignment between the definitions regarding dual credit enrollment occurring through the FAST program and the definitions regarding the requirements of dual credit partnerships. The definition of "charter school" is removed because the new definition of "school district" includes charter schools. This alignment of definitions does not change the underlying structure of the FAST Program.

Rules 13.502 and 13.503 are amended to align terminology in these sections with the above definitions. These amendments are proposed based on Texas Education Code, Section 28.0095(j), which directs the Coordinating Board to adopt rules as necessary to implement the FAST Program.

Dr. Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, 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.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Dr. Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section will be the greater clarity provided in the rules by aligning definitions across multiple agency programs. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

Comments on the proposal may be submitted to Dr. Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, P.O. Box 12788, Austin, Texas 78711-2788, or via email at Charles.Contero-Puls@highered.texas.gov. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The amendment is proposed under Texas Education Code, Section 28.0095, which provides the Coordinating Board with the authority to adopt rules as necessary to implement the FAST Program.

The proposed amendment affects Texas Education Code, Sections 28.0095 and 48.308.

§13.501.Definitions.

In addition to the words and terms defined in §13.1 of this chapter (relating to Definitions) the following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. In the event of conflict, the definitions in this subchapter shall control.

(1) Career and Technical Education Course--As defined in §4.83 of this title (relating to Definitions). [A workforce or continuing education college course offered by an institution of higher education for which a student may earn credit toward satisfaction of a requirement necessary to obtain an industry-recognized credential, certificate, or associate degree.]

~~[(A) A career and technical education course is listed in the Workforce Education Course Manual (WECM).]~~

~~[(B) For the purpose of this subchapter, this definition excludes:]~~

~~[(i) an avocational course;]~~

~~[(ii) a continuing education course that is ineligible for conversion as articulated college credit; and]~~

~~[(iii) a continuing education course that does not meet the institution's program or instructor accreditation standards.]~~

~~[(2) Charter School--A public charter school authorized to operate under Texas Education Code, Chapter 12.]~~

(2) [~~(3)~~] Credit--As defined in §4.83 of this title (relating to Definitions). [College credit earned through the successful completion of a college career and technical education or academic course that fulfills specific requirements necessary to obtain an industry-recognized credential, certificate, associate degree, or other academic degree.]

(3) [~~(4)~~] Dual Credit Course--As defined in §4.83 of this title (relating to Definitions). [~~A course that meets the following requirements:~~]

~~[(A) The course is offered pursuant to an agreement under §4.84 of this subchapter (relating to Institutional Agreements).]~~

~~[(B) A course for which the student may earn one or more of the following types of credit:]~~

~~[(i) joint high school and junior college credit under Texas Education Code, §130.008, or]~~

~~[(ii) another course offered by an institution of higher education, for which a high school student may earn semester credit hours or equivalent of semester credit hours toward satisfaction of:]~~

~~[(I) a course defined in paragraph (1) of this section that satisfies a requirement necessary to obtain an industry-recognized credential, certificate, or an associate degree;]~~

~~[(II) a foreign language requirement at an institution of higher education;]~~

~~[(III) a requirement in the core curriculum, as that term is defined by Texas Education Code, §61.821, at an institution of higher education; or]~~

~~[(IV) a requirement in a field of study curriculum developed by the Coordinating Board under Texas Education Code, §61.823.]~~

(4) [~~(5)~~] Educationally Disadvantaged [~~disadvantaged~~]--As defined in Texas Education Code, §5.001(4), eligible to participate in the national free or reduced-price lunch program.

(5) [~~(6)~~] Equivalent of a Semester Credit Hour [~~semester credit hour~~] --As defined in §4.83 of this title (relating to Definitions). [A unit of measurement for a continuing education course, determined as a ratio of one continuing education unit to 10 contact hours of instruction, which may be expressed as a decimal. 1.6 continuing education units of instruction equals one semester credit hour of instruction. In a continuing education course, not fewer than 16 contact hours are equivalent to one semester credit hour.]

(6) [~~(7)~~] Program--The Financial Aid for Swift Transfer (FAST) Program.

(7) School District--As defined in §4.83 of this title (relating to Definitions).

(8) School Year--The twelve month-period of high school enrollment starting in August.

(9) Semester Credit Hour--As defined in §4.83 of this title (relating to Definitions). [A unit of measure of instruction, represented in intended learning outcomes and verified by evidence of student achievement, that reasonably approximates one hour of classroom instruction or direct faculty instruction and a minimum of two hours out of class student work for each week over a 15-week period in a semester system or the equivalent amount of work over a different amount of time. An institution is responsible for determining the appropriate number of semester credit hours awarded for its programs in accordance with Federal definitions, requirements of the institution's accreditor, and commonly accepted practices in higher education.]

§13.502.Eligible Institution.

(a) A public institution of higher education, as the term is defined in Texas Education Code, §61.003(8), is eligible to participate in the Program.

(b) A participating institution may not charge students attending high school in a Texas school district [~~or charter school~~] a tuition rate for dual credit courses in excess of the tuition rate outlined in §13.504 of this subchapter (relating to FAST Tuition Rate).

(c) A participating institution must ensure that an eligible student incurs no cost for their enrollment in any dual credit course at the institution. This includes, but is not limited to, tuition, fees, books, supplies, or other mandatory course-related expenses. This subsection does not prohibit a participating institution from charging a school district for course-related expenses, other than tuition, for an eligible student.

(d) Agreement. Each eligible institution must enter into an agreement with the Coordinating Board, the terms of which shall be prescribed by the Commissioner prior to being approved to participate in the program.

§13.503.Eligible Students.

(a) A student is eligible to enroll at no cost to the student in a dual credit course under the program if the student:

(1) is enrolled in and eligible for Foundation School Program funding at a high school in a Texas school district [~~or charter school~~] under the rules of the Texas Education Agency;

(2) is enrolled in a dual credit course at a participating institution of higher education that has entered into a Dual Credit Agreement with the student's school district as set out in §4.84 of this title (relating to Institutional Agreements); and

(3) was educationally disadvantaged at any time during the four school years preceding the student's enrollment in the dual credit course described by paragraph (2) of this subsection, as certified to the institution by the eligible student's school district [~~or charter school~~], or other means authorized by rule.

(b) A school district's [~~or charter school's~~] notice to the institution regarding a student's status as educationally disadvantaged shall occur through the school district's [~~or charter school's~~] notice to the Texas Education Agency, unless otherwise provided by rule.

(c) A participating institution shall submit to the Coordinating Board identifying information, as outlined by the Coordinating Board, for students registered for or enrolled in dual credit courses. The Coordinating Board will compare the identifying information to data provided by the Texas Education Agency and will notify the institution as to which students fulfill the requirement outlined in subsection (a)(3) of this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401593

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6365

CHAPTER 21. STUDENT SERVICES

SUBCHAPTER W. TEXAS WORKING OFF-CAMPUS: REINFORCING KNOWLEDGE AND SKILLS (WORKS) INTERNSHIP PROGRAM

19 TAC §§21.700 - 21.707

The Texas Higher Education Coordinating Board (Coordinating Board) proposes the repeal of Texas Administrative Code, Title 19, Part 1, Chapter 21, Subchapter W, §§21.700 - 21.707, concerning the Texas Working Off-Campus: Reinforcing Knowledge and Skills (WORKS) Internship Program. Specifically, this repeal will relocate these rules to another chapter, allowing the Coordinating Board to administer the Texas Working Off-Campus: Reinforcing Knowledge and Skills (WORKS) Internship Program. Texas Education Code, Chapter 56, Subchapter E-1, Section 56.0856, gives the Coordinating Board the authority to adopt rules to enforce, the requirements, conditions, and limitations provided by the subchapter.

Vanessa Malo, Director, Workforce Education Initiatives, has determined that for each of the first five years the sections are in effect there would be no fiscal implications for state government 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.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Vanessa Malo, Director, Workforce Education Initiatives, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of repealing this rule is improved organization in Texas Administrative Code, Title 19, Part 1, by grouping all grant-related rules in a single chapter. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

Comments on the proposal may be submitted to Vanessa Malo, Director of Workforce Education, P.O. Box 12788, Austin, Texas 78711-2788, or via email at Vanessa.Malo@highered.texas.gov. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The repeal is proposed under Texas Education Code, Chapter 56, Subchapter E-1, Section 56.0856, which provides the Coordinating Board with the authority to adopt rules to enforce, the requirements, conditions, and limitations provided by the subchapter.

The proposed repeal affects Texas Administrative Code, Title 19, Part 1, Chapter 21, Subchapter W, Sections 21.700 - 21.707., relating to the Texas Working Off-Campus: Reinforcing Knowledge and Skills (WORKS) Internship Program.

§21.700.Authority and Purpose of the Texas Working Off-Campus: Reinforcing Knowledge and Skills (WORKS) Internship Program.

§21.701.Definitions.

§21.702.Employer Eligibility and Participation Requirements.

§21.703.Employer Agreement.

§21.704.Employer Reimbursement.

§21.705.Qualified Internship Opportunity.

§21.706.Student Eligibility.

§21.707.Records Retention.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401594

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6267

CHAPTER 23. EDUCATION LOAN REPAYMENT PROGRAMS

SUBCHAPTER A. GENERAL PROVISIONS

19 TAC §§23.1 - 23.3

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new rules in, Texas Administrative Code, Title 19, Part 1, Chapter 23, Subchapter A, §§23.1 - 23.3, concerning General Provisions. Specifically, this new section will create general provisions that apply to all education loan repayment programs administered by the Coordinating Board under Texas Administrative Code, Title 19, Part 1, Chapter 23.

Rule 23.1, Definitions, provides definitions for terminology that is common across all subchapters in Chapter 23. The definition for "Board," "Coordinating Board" and "Commissioner" are included to ensure consistency throughout the rules for education loan repayment programs. Texas Education Code, §§56.3575, 61.537, 61.608, 61.656, 61.9828, 61.9840, and 61.9959, provide the Coordinating Board with the authority to establish rules for the administration of the education loan repayment programs.

Rule 23.2, Eligible Lender and Eligible Education Loan, outlines the requirements that must be met for a loan to be considered eligible for repayment through any education loan repayment program in Chapter 23. This includes the requirements by which both the lender and the loan are assessed to determine eligibility. The requirements represent the consolidation of requirements outlined in the subchapters in Chapter 23 to ensure consistency across all programs. Additional details have been provided regarding the allowance for loans to be eligible for two different loan repayment programs if the other program is a federal program that requires a state matching requirement. Texas Education Code, §§56.3575, 61.537, 61.608, 61.656, 61.9828, 61.9840, and 61.9959, provide the Coordinating Board with the authority to establish rules for the administration of the education loan repayment programs.

Rule 23.3, Method of Disbursement, indicates that all education loan repayment program disbursements are made directly to the lender and that the Coordinating Board adheres to appropriate IRS reporting regulations. The Coordinating Board elects to disburse directly to the lender for all education loan repayment programs, rather than co-payable to the lender and borrower, to create greater assurance that all disbursements will be appropriately applied to the eligible loans. The Coordinating Board's adherence to appropriate IRS regulations is placed in the general provisions to create greater transparency of this requirement across all education loan repayment programs. Texas Education Code, §§56.3575, 61.537, 61.608, 61.656, 61.9828, 61.9840, and 61.9959, provide the Coordinating Board with the authority to establish rules for the administration of the education loan repayment programs.

Dr. Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, 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 rules. There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Dr. Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of administering the section will be the greater transparency and consistency in the administration of the Coordinating Board's education loan repayment programs. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

The new sections are proposed under Texas Education Code, Sections 56.3575, 61.537, 61.608, 61.656, 61.9828, 61.9840, and 61.9959, which provide the Coordinating Board with the authority to establish rules for the administration of the education loan repayment programs.

The proposed new sections affects Texas Administrative Code, Title 19, Part 1, Chapter 23.

§23.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. In the event of conflict, the definitions in this subchapter shall control.

(1) Board--The governing body of the agency known as the Texas Higher Education Coordinating Board.

(2) Commissioner--The commissioner of higher education.

(3) Coordinating Board--The agency known as the Texas Higher Education Coordinating Board and its staff.

§23.2.Eligible Lender and Eligible Education Loan.

The following requirements regarding eligible lenders and eligible education loans shall apply to all education loan repayment programs administered in this chapter, unless the subchapter clearly indicates otherwise.

(1) The Coordinating Board shall retain the right to determine the eligibility of lenders and holders of education loans to which payments may be made.

(2) An eligible lender or holder shall, in general, make or hold education loans made to individuals for purposes of undergraduate, graduate, and professional education and shall not be any private individual. An eligible lender or holder may be, but is not limited to, a bank, savings and loan association, credit union, institution of higher education, secondary market, governmental agency, or private foundation. Credit cards, equity loans and other similar personal loan products are not considered educational loans eligible for repayment.

(3) To be eligible for repayment, an education loan must:

(A) be evidenced by a promissory note for loans to pay for the cost of attendance for the undergraduate, graduate, or professional education of the individual applying for repayment assistance;

(B) not have been made during residency or to cover costs incurred after completion of graduate or professional education;

(D) not have an existing obligation to provide service for loan forgiveness through another program, unless the program is a loan repayment assistance program funded by the federal government on the condition of matching state funds and that, by rule or exception, does not prohibit concurrent obligations for the same employment or service;

(E) not be subject to repayment through another student loan repayment or loan forgiveness program;

(F) not be subject to repayment as a condition of employment or through other repayment assistance provided by the applicant's employer while the applicant is participating in the program;

(G) if the loan was consolidated with other loans, the applicant must provide documentation of the portion of the consolidated debt that was originated to pay for the cost of attendance for the applicant's undergraduate, graduate, or medical education; and

(H) not be an education loan made to oneself from one's own insurance policy or pension plan or from the insurance policy or pension plan of a spouse or other relative.

§23.3.Method of Disbursement.

The following requirements regarding method of disbursement shall apply to all education loan repayment programs administered in this chapter, unless the subchapter clearly indicates otherwise.

(1) The annual repayment(s) shall be in one or multiple disbursements made payable to the servicer(s) or holder(s) of the loan upon the eligible applicant's completion of each service period of qualifying employment.

(2) The Coordinating Board shall follow Internal Revenue Service requirements for reporting of loan repayment assistance to eligible applicants during each calendar year.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401595

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6365

SUBCHAPTER G. NURSING FACULTY LOAN REPAYMENT ASSISTANCE PROGRAM

19 TAC §§23.190 - 23.192, 23.194

The Texas Higher Education Coordinating Board (Coordinating Board) proposes the repeal of Texas Administrative Code, Title 19, Part 1, Chapter 23, Subchapter G, §§23.190 - 23.192 and 23.194, concerning the Nursing Faculty Loan Repayment Assistance Program. Specifically, this repeal will remove sections that will either be moved to other sections within the program or become redundant with the creation of a new Subchapter A in Chapter 23.

Texas Education Code, Section 61.9828, provides the Coordinating Board with the authority to adopt rules for the administration of the Nursing Faculty Loan Repayment Assistance Program. The repeal of these sections is necessary to reduce redundancy with new rules under the General Provisions, Subchapter A in Chapter 23, that will apply to the entire chapter.

Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, 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.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as the result of adopting this rule is the elimination of rules that will become redundant with new rules proposed for adoption in Chapter 23, Subchapter A, and with the redistribution of language into other subsections under Subchapter G. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will not create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will not create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

Comments on the proposal may be submitted to Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, P.O. Box 12788, Austin, Texas 78711-2788, or via email at Charles.Contero-Puls@highered.texas.gov. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The repeal is proposed under Texas Education Code, Section 61.9828, which provides the Coordinating Board with the authority to establish rules as necessary to administer the Nursing Faculty Loan Repayment Assistance Program.

The proposed repeal affects Texas Administrative Code, Title 19, Part 1, Chapter 23, Subchapter G.

§23.190.Eligible Lender and Holder.

§23.191.Eligible Education Loan.

§23.192.Repayment of Education Loans.

§23.194.Dissemination of Information.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401596

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6365

SUBCHAPTER K. NURSE LOAN REPAYMENT ASSISTANCE PROGRAM

19 TAC §§23.300 - 23.305

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new rules in Texas Administrative Code, Title 19, Part 1, Chapter 23, Subchapter K, §§23.300 - 23.305, concerning the Nurse Loan Repayment Assistance Program. Specifically, this subchapter establishes the program's authority and purpose, outlines definitions for necessary words and terms, and creates applicant eligibility criteria, ranking priorities, repayment assistance amounts, and limitations for the program. The Coordinating Board is given authority to establish rules as necessary to administer the Nurse Loan Repayment Assistance Program under Texas Education Code, §61.656.

Rule 23.300, Authority and Purpose, establishes the authority and purpose of the program, which is to promote the health care needs of this state by encouraging qualified nurses to continue to practice in Texas. This addition is being proposed to clearly state the Coordinating Board's intentions in administering the program to conform with subchapters related to the agency's other financial aid programs.

Rule 23.301, Definitions, establishes necessary definitions for words and terms used in subsequent rules. This includes outlining various classifications of nurses based on state licensure standards, designating the number of hours needed to be full-time to conform to many employers' minimum standards, using Primary Care Health Professional Shortage Area scores as a proxy for nursing shortage in a given geography, and defining "rural county" based on a common definition in Texas law that is easily operationalized. This addition is being implemented to avoid ambiguity in the rules and to ensure the subchapter is administered consistently.

Rule 23.302, Applicant Eligibility, establishes eligibility criteria for applicants to the program, including employer verification of the applicant's employment as a nurse, documentation of licensure, information related to the applicant's eligible education loans, and any other documentation that may be required. This addition is being implemented to ensure state funds appropriated to this program are disbursed to persons currently employed as nurses in this state and that the Coordinating Board has the information needed to administer the program consistently and efficiently.

Rule 23.303, Applicant Ranking Priorities, establishes the prioritization criteria the Coordinating Board will use in the event that insufficient funds are available in a year to offer loan repayment assistance to all eligible applicants. Priority will be given based on a priority deadline set by the agency, to renewal applications versus initial-year applications, applications from nurses employed in rural counties, applications from nurses employed by or in Primary Care Health Professional Shortage Areas with higher scores, to different licensure classifications of nurses (prioritizing areas of greatest shortage statewide), and date of application submission. This addition is being implemented to ensure that limited state funds are being employed to have the greatest impact in promoting the health care needs of the state.

Rule 23.304, Amount of Repayment Assistance, establishes maximum annual loan repayment assistance amounts for nurses of different licensure classifications and to outline how these amounts can be prorated for eligible nurses working part-time. Establishing the annual maximum has been structured in a way that supports the Coordinating Board's efforts to allocate all money available to the board for the purpose of providing loan repayment assistance under this subchapter. This addition is being implemented to allow the greatest flexibility to the agency in administering the program, depending on the amount of available funds and number of eligible applicants each year.

Rule 23.305, Limitations, outlines limitations to the program. Subsection (a) relates to statutory requirements limiting the amount of assistance that can be offered to eligible persons for repayment for education loans for education received at an institution described by Texas Education Code, §61.651(1)(C). This addition is created to align with statutory changes made to Texas Education Code, §61.656, in Senate Bill 25 during the 88th legislative session.

Subsection (c) establishes the number of years an individual may receive loan repayment assistance under this program. Three years was selected to align with other Loan Repayment Assistance Programs and to ensure consistent availability to the program for new applicants, reinforcing the program's ability to retain qualified nurses statewide.

There is no impact on small businesses, micro businesses, and rural communities. There is no anticipated impact on local employment.

Charles W. Contéro-Puls, Assistant Commissioner for Student Financial Aid Programs, has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of adopting this rule is improved retention of qualified nurses practicing in the state. There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

Government Growth Impact Statement

(1) the rules will create or eliminate a government program;

(2) implementation of the rules will not require the creation or elimination of employee positions;

(3) implementation of the rules will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rules will not require an increase or decrease in fees paid to the agency;

(5) the rules will create a new rule;

(6) the rules will not limit an existing rule;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules will not affect this state's economy.

The new sections are proposed under Texas Education Code, Section 61.656, which provides the Coordinating Board with the authority to establish rules as necessary to administer the program.

The proposed new sections affect Texas Administrative Code, Title 19, Part 1, Chapter 23, Subchapter K.

§23.300.Authority and Purpose.

(a) Authority. Authority for this subchapter is provided in the Texas Education Code, chapter 61, subchapter L, Financial Aid for Professional Nursing Students and Vocational Nursing Students and Loan Repayment Program for Certain Nurses. These rules establish procedures to administer Texas Education Code, §61.651 and §§61.654 - 61.659.

(b) Purpose. The purpose of the Nurse Loan Repayment Assistance Program is to promote the health care needs of this state by encouraging qualified nurses to continue to practice in Texas.

§23.301.Definitions.

In addition to the words and terms defined in §23.1 of this chapter (relating to Definitions), the following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Advanced Practice Nurse--A professional nurse, currently licensed in the State of Texas, who has been approved by the Texas Board of Nursing to practice as an advanced practice nurse based on completing an advanced educational program of study acceptable to the Texas Board of Nursing. The term includes a nurse practitioner, nurse-midwife, nurse anesthetist, and a clinical nurse specialist.

(2) Full-Time--An average of at least 32 hours per week during the service period.

(3) Licensed Vocational Nurse--A person currently licensed by the Texas Board of Nursing to practice vocational nursing.

(4) Primary Care HPSA--Primary Care Health Professional Shortage Areas (HPSAs) designated by the U.S. Department of Health and Human Services (HHS) as having shortages of primary care providers and may be geographic (a county or service area), demographic (low-income population), or institutional (comprehensive health center, federally qualified health center, or other public facility), in compliance with the requirements of Section 332 of the Public Health Service Act, 90 Stat. 2270-2272 (42 U.S.C.A. 254e).

(5) Registered Nurse--A person currently licensed by the Texas Board of Nursing to practice professional nursing. For the purposes of this subchapter, an advanced practice nurse is not considered a registered nurse.

(6) Rural County--A county with a population of less than 50,000.

(7) Service Period--A period of 12 consecutive months qualifying an applicant for loan repayment.

§23.302.Applicant Eligibility.

To be eligible to receive loan repayment assistance, an applicant must submit to the Coordinating Board an application for enrollment in the program that includes:

(1) employer verification of the applicant's employment as a nurse in Texas for at least one service period and the person's current employment in Texas as of the date of the application, including the average number of hours per week the applicant worked during the last service period;

(2) documentation that the applicant is licensed by the Texas Board of Nursing as a Licensed Vocational Nurse, Registered Nurse, or Advanced Practice Nurse, with no restrictions; and

(3) a statement of the total amount of principal, accrued interest, fees, and other charges due on unpaid eligible education loans, as described in §23.2(c) of this chapter (relating to Eligible Lender and Eligible Education Loan), obtained for enrollment in a nursing degree or certificate program at:

(A) an institution of higher education, as defined in Texas Education Code, §61.003;

(B) a private or independent institution of higher education, as defined in Texas Education Code §61.003; or

(4) any other document deemed necessary by the Coordinating Board.

§23.303.Applicant Ranking Priorities.

(a) If insufficient funds are available in a year to offer loan repayment assistance to all eligible applicants, then applications shall be ranked using priority determinations in the following order.

(1) The Coordinating Board may choose to post an application deadline, which will be posted on the program web page. In such a case, applications received prior to the application deadline will be given priority over applications received after the application deadline.

(2) Renewal applications shall be given priority over initial-year applications, unless a break in service period has occurred, in which case the application would be treated as an initial-year application for priority ranking.

(3) Applications for those employed in rural counties shall be given priority over those who are not employed in rural counties. In the case of applicants serving at multiple sites, an applicant who spends at least 75 percent of their work hours serving in rural counties is considered to be working in a rural county.

(4) Applications shall be ranked based on the Primary Care HPSA score in which the employer is located. Applications with the highest Primary Care HPSA score shall be given priority over applications with the next highest Primary Care HPSA score, and so on.

(5) Applications from Registered Nurses shall be given priority over applications from Licensed Vocational Nurses, who shall be given priority over applications from Advanced Practice Nurses.

(6) Applications shall be ranked based on the date of application submission. Applications from the group with the earliest application submission date shall be given priority over applications from the next earliest application submission date, and so on.

(b) In determining the Primary Care HPSA score, the following shall apply:

(1) If an applicant works for an agency located in a Primary Care HPSA that has satellite clinics and the nurse works in more than one of the clinics, the highest Primary Care HPSA score where the applicant works shall apply.

(2) If an applicant travels to make home visits, the applicant's agency base location and its Primary Care HPSA score shall apply.

(3) If an applicant works for different employers in multiple Primary Care HPSAs having different degrees of shortage, the location having the highest Primary Care HPSA score shall apply.

§23.304.Amount of Repayment Assistance.

Eligible education loans, as described in §23.2(3) of this chapter (relating to Eligible Lender and Eligible Education Loan), of eligible nurses shall be repaid under the following conditions:

(1) Taking into consideration the amount of available funding and the number of eligible applicants, the Coordinating Board will determine annual loan repayment assistance amounts for:

(A) Licensed Vocational Nurses;

(B) Registered Nurses; and

(2) Annual repayment(s) may be made for verified full-time or for verified part-time service. The amount of loan repayment assistance received by a nurse for part-time employment will be calculated by the Coordinating Board based on the proportion of hours worked by the nurse in comparison to the hours worked by a full-time nurse.

§23.305.Limitations.

(a) No more than 10 percent of the total amount of repayment assistance in a fiscal year may be offered to individuals for the repayment of eligible loans for education received at a college or university described by Texas Education Code, §61.651(1)(C).

(b) An individual's loan repayment assistance amount may not exceed the unpaid principal and interest owed on one or more eligible education loans, as defined in §23.2(3) of this chapter (relating to Eligible Lender and Eligible Education Loan).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 15, 2024.

TRD-202401597

Nichole Bunker-Henderson

General Counsel

Texas Higher Education Coordinating Board

Earliest possible date of adoption: June 2, 2024

For further information, please call: (512) 427-6365

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS

The Texas Education Agency (TEA) proposes amendments to §§89.1001, 89.1005, 89.1075, 89.1076, 89.1085, 89.1090, 89.1092, and 89.1094, concerning special education general provisions and clarification of provisions in federal regulations and state law. The proposed amendments would clarify current program practices and requirements, including clarifying existing statutory obligations for school districts to extend their Child Find activities to residential facilities, as well as facilities under the direction and control of the Texas Juvenile Justice Department and the Texas Department of Criminal Justice when those facilities are located in the district's boundaries; reflecting the qualifications that instructional arrangements and settings listed in Texas Education Code (TEC), §48.102, must meet in order to be funded through the state special education allotment; adding an existing federal requirement for school districts to develop policies and procedures that implement the established state policies and procedures and an existing statutory requirement reminding transition and employment designees to complete required training; specifying interventions and sanctions that TEA may, or is required to, implement under state and federal law when noncompliance is identified; clarifying when the Texas School for the Blind and Visually Impaired (TSBVI) and the Texas School for the Deaf (TSD) are considered the resident school district for purposes of §89.1085 and §89.1090; addressing transportation to and from TSBVI and TSD when students are expected to leave the residential campus setting; providing clarity and aligning with current expectations and nonpublic residential placement guidance; and clarifying the phrases "off-campus program" and "off-home campus."

BACKGROUND INFORMATION AND JUSTIFICATION: Section 89.1001 references the scope and applicability of commissioner rules associated with special education and related services. The proposed amendment to subsection (a) would align with current terminology and practices of federal law and add a reference to the State Board for Educator Certification.

The proposed amendment to §89.1001(c) would clarify existing statutory obligations for school districts to extend their Child Find activities to residential facilities, as well as facilities under the direction and control of the Texas Juvenile Justice Department and the Texas Department of Criminal Justice when those facilities are located in the district's boundaries.

Section 89.1005 reflects the qualifications that instructional arrangements and settings listed in TEC, §48.102, must meet in order to be funded through the state special education allotment.

Proposed new §89.1005(a) would identify definitions for terms used in the rule to provide clarity.

The proposed amendment to re-lettered §89.1005(c) would align with the wording in §89.1075, which is referenced in the subsection.

Proposed new §89.1005(d) would clarify the alignment between the rule and the Student Attendance Accounting Handbook adopted by reference in 19 TAC §129.1025.

Re-lettered §89.1005(e) would be amended to revise the descriptions of the instructional arrangements/settings listed in the rule. Following is a summary of the proposed changes to those descriptions.

Terminology in the mainstream description would be updated to the term "general education," which is more commonly used than "regular education." A statement would also be added that only monitoring a student's progress does not equate to a special education service.

The homebound description would be revised to adjust for more current circumstances in which homebound instruction might be required, and clarification would be added about the instances when children ages three through five could be classified under this setting. Information about serving infants and toddlers who have a visual impairment (VI), who are deaf or hard of hearing (DHH), or who are deafblind (DB) would be deleted and added to re-lettered subsection (f).

The hospital class setting would be revised for clarity based on questions received from stakeholders.

The speech therapy setting would be modified to clarify the current structures laid out in the Student Attendance Accounting Handbook.

Both resource room/services and self-contained would be aligned to reflect the differentiation in codes that the current Student Attendance Accounting Handbook uses.

Based on numerous questions from stakeholders, clarification would be added about when an instructional arrangement would be considered the off-home campus setting.

The nonpublic day school instructional arrangement/setting would be clarified to reference the alignment with §89.1094.

The vocational adjustment class description would be amended to better align with current practices.

Clarification about the residential care and treatment facility setting would be added based on requests from stakeholders.

The state school description would be modified to use the terminology of the TEC.

Re-lettered subsection (f) would be amended to clarify instances when a child from birth through age two who has a VI, is DHH, or is DB is entitled to enrollment in school districts and funding through the state special education allotment.

Additional edits would be made throughout §89.1005 to align with current terminology and for conciseness.

Section 89.1075 references general program requirements and local district procedures. The proposed changes would add an existing federal requirement for school districts to develop policies and procedures that implement the established state policies and procedures, a provision about prior written notice that is currently located in 19 TAC §89.1050, and an existing statutory requirement reminding transition and employment designees to complete required training. Additional revisions would be made for clarity and alignment with current law.

Section 89.1076 is related to interventions and sanctions that TEA may, or is required to, implement under state and federal law when noncompliance is identified. The proposed amendment would align terminology throughout the rule as well as add a federally required intervention to place specific conditions on funds or redirect funds.

Section 89.1085 addresses referrals to TSBVI and TSD. The proposed amendment would clarify that if a student is enrolled in an open-enrollment charter school and the student's ARD committee places a student in TSBVI or TSD, that school becomes the resident school district for purposes of §89.1085 and §89.1090.

Section 89.1090 references transportation to and from TSBVI and TSD when students are expected to leave the residential campus setting. The proposed amendment would clarify when a resident district would be required to cover transportation costs for a student placed at TSBVI or TSD. Transportation costs for students in other residential settings when placed by a student's ARD committee would likely be covered in those contracts for services. The section title would be modified to clarify that the rule pertains only to placements at TSBVI and TSD.

Section 89.1092 describes the requirements when a school district places a student in a residential placement for the provision of a free appropriate public education (FAPE) to a student. The proposed amendment would provide clarity and align with current expectations and nonpublic residential placement guidance. In addition, the proposed changes would include adding definitions for school district, nonpublic residential program, and nonpublic residential program provider; listing the requirements related to any nonpublic residential placement, including school district responsibilities prior to placement and during such placement; clarifying language related to notification; and expanding information on the approval process. The section title would also be modified to clarify the purpose of the rule.

Section 89.1094 refers to placement in off-campus programs. Based on requests for clarification from stakeholders related to the phrases "off-campus program" and "off-home campus" as described in §89.1005, the section title would be modified to clarify these types of placements. The new title would be "Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of a Free Appropriate Public Education (FAPE)," which would align with the wording in §89.1092 regarding nonpublic residential placement.

The proposed amendment to §89.1094(a) would address placements at nonpublic day schools; a county system operating under former TEC, §11.301; a regional education service center; or any other public or private entity with which a school district enters a contract for the provision of special education services in a facility not operated by a school district.

The placement requirements listed in §89.1094(b) would be amended for clarity and to reference criminal background checks and the requirement for the provider to develop policies, procedures, and operating guidelines to ensure the student maintains the same rights as other public school students while in this placement.

The proposed amendment to §89.1094(c), regarding notification, would provide clarity and alignment.

Proposed new §89.1094(d), regarding the approval process for a nonpublic residential program, would clarify TEA's authority to place conditions on a program provider, not reapprove an approval, or withdraw an approval from a program provider.

The proposed amendment to §89.1094(e), related to funding procedures, would provide clarity and reflect that contracts must not begin prior to August 1 and must not extend past July 31 of the following year.

FISCAL IMPACT: Justin Porter, associate commissioner and chief program officer for special populations, has determined that for the first five-year period the proposal is in effect, there are no additional costs to state or local government, including school districts and open-enrollment charter schools, required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would expand existing regulations by increasing the required number of times a school district must contact residential facilities within the district's boundaries to conduct Child Find activities. It would also modify instructional arrangement descriptions and add specific descriptions for instructional arrangements associated with children from birth through age two. In addition, it would add that open-enrollment charter schools can be considered a resident district for purposes of placement and transportation to the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf, and a change to transportation responsibilities would require a resident district to cover transportation during any period at which all students are supposed to leave the residential campus. Likewise, proposed amendments would explicitly clarify requirements regarding the approval, contracting, and compliance monitoring processes when students with disabilities require a nonpublic day or residential placement, including requirements regarding criminal background checks, onsite visits, written verification that certain health and safety standards are met, and the requirement for the provider to develop policies, procedures, and operating guidelines to ensure the student maintains the same rights as other public school students while in this placement. It would also add a contract length requirement for these placements.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not limit or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: Mr. Porter has determined that for each year of the first five years the proposal is in effect, the following public benefits are anticipated as a result of enforcing the proposal. The proposed amendment to §89.1001 would align with current terminology and practices of federal law. It would clarify existing statutory obligations for school districts to extend their Child Find activities to residential facilities, as well as facilities under the direction and control of the Texas Juvenile Justice Department and the Texas Department of Criminal Justice when those facilities are in the district's boundaries.

The proposed amendment to §89.1005 would modify qualifications that instructional arrangements and settings listed in TEC, §48.102, must meet to be funded through the state special education allotment. The proposed amendment would also include term changes to provide clarity and alignment between this rule and the Student Attendance Accounting Handbook and incorporate current practices based on requests from stakeholders.

The proposed amendment to §89.1075 would include for practical reference the addition of an existing requirement that school districts develop policies and procedures that implement the established state policies and procedures and the statutory requirements for a district's transition and employment designee. The proposed amendment would also add a provision about prior written notice that is currently located in 19 TAC §89.1050 to this more appropriate rule and make revisions for clarity and alignment with current law.

The proposed amendment to §89.1076 would revise the criteria for interventions and sanctions that TEA is required to implement under state and federal law when noncompliance is identified. The criteria includes steps related to the appointment of a monitor and a conservator/management team and adds reference to the possibility of a federally required intervention to place specific conditions on funds.

The proposed amendment to §89.1085 would provide clarification that if a student is enrolled in an open-enrollment charter school and the student's ARD committee places a student in TSBVI or TSD, that school becomes the resident school district for purposes of §89.1085 and §89.1090.

The proposed amendment to §89.1090 would provide clarification as to when a resident district would be required to cover transportation costs for a student placed at TSBVI or TSD.

The proposed amendment to §89.1092 would clarify and align the rule with current expectations, outline nonpublic residential placement guidance, and better describe the rule's purpose.

The proposed amendment to §89.1094 would clarify longstanding requests from stakeholders to differentiate the phrase "off-campus program" from "off-home campus" as described in §89.1005. A proposed title change would align with the wording in the nonresidential placement rule in §89.1092.

There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins May 3, 2024, and ends June 3, 2024. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Proposed_Commissioner_of_Education_Rules/. Public hearings will be conducted to solicit testimony and input on the proposed amendments at 9:30 a.m. on May 15 and 16, 2024. The public may participate in either hearing virtually by linking to the hearing at https://zoom.us/j/98675068834. Anyone wishing to testify must be present at 9:30 a.m. and indicate to TEA staff their intent to comment and are encouraged to also send written testimony to sped@tea.texas.gov. The hearing will conclude once all who have signed in have been given the opportunity to comment. Questions about the hearing should be directed to Derek Hollingsworth, Special Populations Policy, Reporting,and Technical Assistance, Derek.Hollingsworth@tea.texas.gov.

SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES

DIVISION 1. GENERAL PROVISIONS

19 TAC §89.1001, §89.1005

STATUTORY AUTHORITY. The amendments are proposed under Texas Education Code (TEC), §29.001, which requires the agency to develop and modify as necessary a statewide plan for the delivery of services to children with disabilities that ensures the availability of a free appropriate public education to children between the ages of 3-21; TEC, §29.003, which requires the agency to develop eligibility criteria for students receiving special education services; TEC, §29.005, which establishes criteria for developing a student's individualized education program prior to a student enrolling in a special education program; TEC, §29.008, which establishes contracts for services for residential placement; TEC, §29.010, which requires the agency to develop and implement a monitoring system for school district compliance with federal and state laws regarding special education; TEC, §29.012, which requires the commissioner to develop and implement procedures for compliance with federal requirements relating to transition services for students enrolled in a special education program; TEC, §29.013, which requires the agency to establish procedures and criteria for the distribution of funds to school districts for noneducational community-based support services to certain students with disabilities to ensure they receive a free appropriate education in the least restrictive environment; TEC, §29.014, which establishes criteria for school districts that provide education solely to students confined to or educated in hospitals; TEC, §30.002, which requires the agency to develop and administer a statewide plan for the education of children with visual impairments; TEC, §30.003, which establishes requirements for support of students enrolled in Texas School for the Blind and Visually Impaired or Texas School for the Deaf; TEC, §30.005, which establishes a memorandum of understanding between the Texas Education Agency and the Texas School for the Blind and Visually Impaired; TEC, §30.021, which establishes a school for the blind and visually impaired in Texas; TEC, §30.051, which establishes the purpose for Texas School for the Deaf; TEC, §30.057, which establishes admission criteria for eligible students with disabilities to the Texas School for the Deaf; TEC, §30.083, which requires the development of a statewide plan for educational services for students who are deaf or hard of hearing; TEC, §30.087, which establishes criteria for funding the cost of educating students who are deaf or hard of hearing; TEC, §39A.001, which establishes grounds for commissioner action; TEC, §39A.002, which establishes actions that the commissioner of education is authorized to take if a school district is subject to action under §39A.001; TEC, §48.102, which establishes criteria for school districts to receive an annual allotment for students in a special education program; 34 Code of Federal Regulations (CFR), §300.8, which defines terms regarding a child with a disability; 34 CFR, §300.101, which defines the requirement for all children residing in the state between ages of 3-21 to have a free appropriate public education available; 34 CFR, §300.111, which defines the requirement of the state to have policies and procedures in place regarding child find; 34 CFR, §300.114, which defines least restrictive environment requirements; 34 CFR §300.115, which establishes criteria for a continuum of alternative placements; 34 CFR §300.116, which establishes criteria for determining the educational placement of a child with a disability; 34 CFR, §300.121, which establishes the requirement for a state to have procedural safeguards; 34 CFR, §300.124, which establishes the requirement of the state to have policies and procedures in place regarding the transfer of children from the Part C program to the preschool program; 34 CFR, §300.129, which establishes criteria for the state responsibility regarding children in private schools; 34 CFR, §300.147, which establishes the criteria for the state education agency when implementing the responsibilities each must ensure for a child with a disability who is placed in or referred to a private school or facility by a public agency; 34 CFR, §300.149, which establishes the state education agency's responsibility for general supervision; 34 CFR, §300.201, which establishes the requirement for local education agencies to have policies, procedures, and programs that are consistent with the state policies and procedures; 34 CFR, §300.500, which establishes the responsibility of a state education agency and other public agencies to ensure the establishment, maintenance, and implementation of procedural safeguards; and 34 CFR, §300.600, which establishes requirements for state monitoring and enforcement.

CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§29.001, 29.003, 29.005, 29.008, 29.010, 29.012, 29.013, 29.014, 30.002, 30.003, 30.005, 30.021, 30.051, 30.057, 30.083, 30.087, 39A.001, 39A.002, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.115, 300.116, 300.121, 300.124, 300.129, 300.147, 300.149, 300.201, 300.500, and 300.600.

§89.1001.Scope and Applicability.

(a) Special education and related services shall be provided to eligible students in accordance with all applicable federal law and regulations, state statutes, rules of the State Board of Education, State Board for Educator Certification, [~~(SBOE)~~ ] and commissioner of education, and the [~~State Plan Under Part B of the~~] Individuals with Disabilities Education Act (IDEA).

(b) Education programs under the direction and control of the Texas Juvenile Justice Department, Texas School for the Blind and Visually Impaired, Texas School for the Deaf, and schools within the Texas Department of Criminal Justice shall comply with state and federal law and regulations concerning the delivery of special education and related services to eligible students and shall be monitored by the Texas Education Agency in accordance with the requirements identified in subsection (a) of this section.

(c) Residential facility refers to a facility defined by Texas Education Code, §5.001(8), which includes any person, facility, or entity that provides 24-hour custody or care of a person residing in the facility for detention, treatment, foster care, or any noneducational purpose. A school district must initiate Child Find outreach activities to locate, evaluate, and identify eligible students in any residential facility within its boundaries, including facilities or schools under the direction and control of the Texas Juvenile Justice Department or Texas Department of Criminal Justice. If a student is eligible, a school district must provide educational services to the student unless, after contacting the facility to offer educational services to eligible students with disabilities, the facility can demonstrate that educational services are provided by another educational program provider, such as a charter school, approved nonpublic school, or a facility operated private school. However, the district shall, at minimum, contact the facility at least twice per year to conduct Child Find activities and to offer services to eligible students with disabilities.

[(c) A school district having a residential facility that is licensed by appropriate state agencies and located within the district's boundaries must provide special education and related services to eligible students residing in the facility. If, after contacting the facility to offer services to eligible students with disabilities, the district determines that educational services are provided through a charter school, approved non-public school, or a facility operated private school, the district is not required to provide services. However, the district shall annually contact the facility to offer services to eligible students with disabilities.]

§89.1005.Instructional Arrangements and Settings.

(a) The following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Instructional arrangement/setting. Instructional arrangement/setting refers to the arrangement listed in Texas Education Code (TEC), §48.102, and the weight assigned to it that is used to generate funds from the state special education allotment.

(2) Instructional day. Instructional day has the meaning assigned to it in §129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook).

(b) [~~(a)~~] Each [~~local~~] school district must [~~shall be able to~~] provide special education and related services [~~with special education personnel~~] to eligible students with disabilities in order to meet the unique [~~special~~] needs of those students in accordance with 34 Code of Federal Regulations, §§300.114-300.118, and state law.

(c) [~~(b)~~] Subject to §89.1075(e) of this title (relating to General Program Requirements and Local District Procedures), for the purpose of determining the student's instructional arrangement/setting, a student receiving special education and related services must have available an instructional day commensurate with that of students who are not receiving special education and related services. A student's admission, review, and dismissal (ARD) committee shall determine the length of the student's instructional day and will determine the student's instructional arrangement/setting based on the percentage of the student's instructional day that the student receives special education and related services in a setting other than general education [~~the regular school day is defined as the period of time determined appropriate by the admission, review, and dismissal (ARD) committee~~].

(d) While this section uses the names of the instructional arrangements/settings as they are described in TEC, §48.102, there may be additional instructional arrangement/setting codes that are created by the Texas Education Agency (TEA) within the student attendance accounting requirements defined in §129.1025 of this title. While the codes may be titled differently, each will align to an arrangement/setting as described in this section and in TEC, §48.102.

(e) [~~(c)~~] Instructional arrangements/settings shall be based on the individual needs and individualized education programs (IEPs) of eligible students receiving special education and related services and shall include the following.

(1) Mainstream. This instructional arrangement/setting is for providing special education and related services to a student in the general education [~~regular~~] classroom in accordance with the student's IEP. Qualified special education personnel must be involved in the implementation of the student's IEP through the provision of direct, indirect, and/or support services to the student and/or the student's general education [~~regular~~ ] classroom teacher(s) necessary to enrich the general education [~~regular~~] classroom and enable student success. The student's IEP must specify the services that will be provided by qualified special education personnel to enable the student to appropriately progress in the general education curriculum and/or appropriately advance in achieving the goals set out in the student's IEP. Examples of services provided in this instructional arrangement include, but are not limited to, direct instruction, helping teacher, team teaching, co-teaching, interpreter, educational aides, curricular or instructional modifications/accommodations, special materials/equipment, positive classroom behavioral interventions and supports, consultation with the student and his/her general education [~~regular~~] classroom teacher(s) regarding the student's progress in general [~~regular~~] education classes, staff development, and reduction of ratio of students to instructional staff. Monitoring student progress in and of itself is not a special education service; this cannot be listed as the only specially designed instruction documented in a student's IEP.

(2) Homebound. This instructional arrangement/setting, also referred to as home-based instruction, is for providing special education and related services to students who are served at their home for the following reasons [~~or hospital bedside~~].

(A) Medical reasons. Homebound instruction is used for a student whose ARD committee has received medical documentation from a physician licensed to practice in the United States that the student is expected to incur full-day absences from school for a minimum of four weeks for medical reasons, which could include psychological disorders, and the ARD committee has determined that this is the most appropriate placement for the student. The weeks do not have to be consecutive. For the ARD committee to approve this placement, the committee will review documentation related to anticipated periods of student confinement to the home, as well as whether the student is determined to be chronically ill or any other unique medical circumstances that would require this placement in order to provide a free appropriate public education (FAPE) to the student. Documentation by a physician does not guarantee the placement of a student in this instructional arrangement/setting, as the student's ARD committee shall determine whether the placement is necessary, and, if so, will determine the amount of services to be provided to the student at home in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (c) of this section.

[(A) Students served on a homebound or hospital bedside basis are expected to be confined for a minimum of four consecutive weeks as documented by a physician licensed to practice in the United States. Homebound or hospital bedside instruction may, as provided by local district policy, also be provided to chronically ill students who are expected to be confined for any period of time totaling at least four weeks throughout the school year as documented by a physician licensed to practice in the United States. The student's ARD committee shall determine the amount of services to be provided to the student in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (b) of this section.]

(B) Children ages three through five years of age. Home-based instruction may be used for children ages three through five when determined appropriate by the child's ARD committee and as documented in the student's IEP. While this setting would generate the same weight as the homebound instructional arrangement/setting, the data on this setting may be collected differently than the medical homebound arrangement/setting.

[(B) Home instruction may also be used for services to infants and toddlers (birth through age 2) and young children (ages 3-5) when determined appropriate by the child's individualized family services plan (IFSP) committee or ARD committee.]

(C) Students confined to or educated in hospitals. This instructional arrangement/setting also applies to school districts described in TEC [~~Texas Education Code~~], §29.014.

(3) Hospital class. This instructional arrangement/setting is for providing special education and related services by school district personnel: [~~instruction in a classroom,~~]

(A) at a hospital or other medical facility; [,] or

(B) at a residential care and treatment facility not operated by the school district. If a student [~~the students~~] residing in the facility is [~~are~~] provided special education and related services at a school district campus but the student's parent is not a school district resident, the student is considered to be in the residential care and treatment facility instructional arrangement/setting. If a student residing in the facility is provided special education and related services at a school district campus and the parent, including a surrogate parent, is a school district resident, the student's instructional arrangement/setting would be assigned based on the services that are provided at the campus on the same basis as a resident student residing with his or her parents [~~outside the facility, they are considered to be served in the instructional arrangement in which they are placed and are not to be considered as in a hospital class~~].

(4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services whether in a general [~~regular~~] education classroom or in a setting other than a general [~~regular~~] education classroom.

(A) When the only special education [~~or related~~] service provided to a student is speech therapy, then this instructional arrangement may not be combined with any other instructional arrangement. If a student's IEP indicates that a special education teacher is involved in the implementation of the student's IEP but there is no indication of how that teacher provides a special education service, the student is in the speech therapy instructional arrangement/setting.

(B) When a student receives speech therapy and a related service but no other special education service, the student is in the speech therapy instructional arrangement/setting.

(5) Resource room/services. This instructional arrangement/setting is for providing special education and related services to a student in a setting other than general [~~regular~~] education for less than 50% of the regular school day. For funding purposes, this will be differentiated between the provision of special education and related services to a student in a setting other than general education for less than 21% of the instructional day and special education and related services provided to a student in a setting other than general education for at least 21% of the instructional day but less than 50% of the instructional day.

(6) Self-contained (mild, moderate, or severe) regular campus. This instructional arrangement/setting is for providing special education and related services to a student who is in a setting other than general education [~~self-contained program~~] for 50% or more of the regular school day on a regular school campus. For funding purposes, mild/moderate will be considered at least 50% but no more than 60% of the student's instructional day, and severe will be considered more than 60% of the student's instructional day.

(7) Off-home campus. This instructional arrangement/setting is for providing special education and related services to the following : [~~, including, but not limited to, students~~]

(A) a student at South Texas Independent School District or [~~and~~] Windham School District ; [:]

(B) [~~(A)~~] a student who is one of a group of students from one or more [~~than one~~] school districts [~~district~~] served in a single location in another school district when a FAPE [~~free appropriate public education~~] is not available in the [~~respective~~ ] sending district;

(C) [~~(B)~~] a student in a community setting, facility, or environment operated by a school district [~~(not operated by a school district)~~] that prepares the student for postsecondary education/training, integrated employment, and/or independent living in coordination with the student's individual transition goals and objectives ; [~~, including~~]

(D) a student in a community setting or environment not operated by a school district that prepares the student for postsecondary education/training, integrated employment, and/or independent living in coordination with the student's individual transition goals, with regularly scheduled instruction or direct involvement provided by school district personnel ; [or]

(E) a student in a facility not operated by a school district [~~(other than a nonpublic day school)~~] with instruction provided by school district personnel; or

(F) [~~(C)~~] a student in a self-contained program at a separate campus operated by the school district that provides only special education and related services.

(8) Nonpublic day school. This instructional arrangement/setting is for providing special education and related services to students through a contractual agreement with a nonpublic school when the school district is unable to provide a FAPE for the student. This instructional arrangement/setting includes the providers listed in §89.1094 of this title (relating to Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of FAPE) [~~for special education~~].

(9) Vocational adjustment class [~~class/program~~ ] . Although referred to as a class, this [~~This~~] instructional arrangement/setting is a support program for providing special education and related services to a student who is placed on a job (paid or unpaid unless otherwise prohibited by law) with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP. This instructional arrangement/setting shall be used in conjunction with the student's transition plan, as documented in the student's IEP, and may include special education services received in career and technical education work-based learning programs [~~individual transition goals and only after the school district's career and technical education classes have been considered and determined inappropriate for the student~~].

(10) Residential care and treatment facility (not school district resident). For purposes of this section, residential care and treatment facility refers to a facility at which a student with a disability currently resides, who was not placed at the facility by the student's ARD committee, and whose parent or guardian does not reside in the district providing educational services to the student. This instructional arrangement/setting is for providing special education [~~instruction~~] and related services to a student on a school district campus who resides in a residential [~~students who reside in~~] care and treatment facility [~~facilities~~] and whose parents do not reside within the boundaries of the school district that is providing educational services to the student [~~students~~]. [~~In order to be considered in this arrangement, the services must be provided on a school district campus.~~] If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement , or if the student resides at a state-supported living center, the instructional arrangement will be considered the state school arrangement/setting. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education.

(11) State school [~~State-supported living center~~] . This instructional arrangement/setting is for providing special education and related services to a student who resides at a state-supported living center when the services are provided at the state-supported living center location. If services are provided on a local school district campus, the student is considered to be served in the residential care and treatment facility arrangement/setting.

(f) [~~(d)~~] Children from birth through the age of two with visual impairments (VI), who are deaf or hard of hearing (DHH), or who are deaf blind (DB) must be enrolled at the parent's request by a school district when the district becomes aware of a child needing services. The appropriate instructional arrangement for students from birth through the age of two with VI, DHH, or DB [~~visual impairments or who are deaf or hard of hearing~~] shall be determined in accordance with the individualized family services plan [~~IFSP~~], current attendance guidelines, and the agreement memorandum between TEA [~~the Texas Education Agency (TEA)~~] and Texas Health and Human Services Commission Early Childhood Intervention (ECI) Services. However, the following guidelines shall apply.

(1) A home-based instructional arrangement/setting is used when the child receives services at home. This arrangement/setting would generate the same weight as the homebound instructional arrangement/setting, and average daily attendance (ADA) funding will depend on the number of hours served per week.

(2) A center-based instructional arrangement/setting is used when the child receives services in a day care center, rehabilitation center, or other school/facility contracted with the Health and Human Services Commission (HHSC) as an ECI provider/program. This arrangement/setting would generate the same weight as the self-contained, severe instructional arrangement/setting, and ADA funding will depend on the number of hours served per week.

(3) Funding may only be claimed if the district is involved in the provision of the ECI and other support services for the child. Otherwise, the child would be enrolled and indicated as not in membership for purposes of funding. If the district is contracted with HHSC as an ECI provider, funding would be generated under that contract.

(g) [~~(e)~~] For nonpublic day and residential [~~school~~] placements, the school district must comply with the requirements under §89.1092 of this title (relating to Contracting for Nonpublic Residential Placements for the Provision of a Free Appropriate Public Education (FAPE)) or §89.1094 of this title, as appropriate [or shared service arrangement shall submit information to TEA indicating the students' identification numbers, initial dates of placement, and the names of the facilities with which the school district or shared service arrangement is contracting. The school district or shared service arrangement shall not count contract students' average daily attendance as eligible. TEA shall determine the number of contract students reported in full-time equivalents and pay state funds to the district according to the formula prescribed in law].

(h) [~~(f)~~] Other program options that may be considered for the delivery of special education and related services to a student may include the following:

(1) contracts with other school districts; and

(2) other program options as approved by TEA.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2024.

TRD-202401685

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Earliest possible date of adoption: June 2, 2024

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

DIVISION 2. CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS

19 TAC §§89.1075, 89.1076, 89.1085, 89.1090, 89.1092, 89.1094

§89.1075.General Program Requirements and Local District Procedures.

(a) Each school district must maintain an eligibility folder for each student receiving special education and related services, in addition to the student's cumulative record. The eligibility folder must include, but will [~~need~~] not be limited to, [:] copies of referral data; documentation of notices and consents; evaluation reports and supporting data; admission, review, and dismissal (ARD) committee reports; and the student's individualized education programs (IEPs) and supporting data.

(b) Each school district must develop policies, procedures, programs, and practices that are consistent with the state's established policies, procedures, programs, and services to implement the Individuals with Disabilities Education Act.

(c) [~~(b)~~] For school districts providing special education services to students with visual impairments, there must be written procedures as required in [~~the~~] Texas Education Code (TEC), §30.002(c)(10).

(d) [~~(c)~~] Each school district must ensure that each teacher who provides instruction to a student with disabilities:

(1) has access to relevant sections of the student's current IEP;

(2) is informed of the teacher's specific responsibilities related to implementation of the IEP, such as goals and objectives, and of needed accommodations, modifications, and supports for the student; and

(3) has an opportunity to request assistance regarding implementation of the student's IEP.

(e) [~~(d)~~] Each school district must develop a process to be used by a teacher who instructs a student with a disability in a general education [~~regular~~] classroom setting:

(1) to request a review of the student's IEP;

(2) to provide input in the development of the student's IEP;

(3) that provides for a timely district response to the teacher's request; and

(4) that provides for notification to the student's parent or legal guardian of that response.

(f) [~~(e)~~] Students with disabilities must have available an instructional day commensurate with that of students without disabilities. The ARD committee must determine the appropriate instructional setting and length of day for each student, and these must be specified in the student's IEP.

(g) [~~(f)~~] School districts that contract for services from nonpublic [~~non-public~~] day schools or residential placements must do so in accordance with 34 Code of Federal Regulations (CFR), §300.147, and §89.1092 and §89.1094 of this title (relating to Contracting for Nonpublic Residential Placements for the Provision of a Free Appropriate Public Education (FAPE) and Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of a Free Appropriate Public Education (FAPE)) [~~Students Receiving Special Education and Related Services in an Off-Campus Program)~~].

(h) Whenever a school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free appropriate public education to the student, the school district must provide prior written notice as required in 34 CFR, §300.503, including providing the notice in the parent's native language or other mode of communication. This notice must be provided to the parent at least five school days before the school district proposes or refuses the action unless the parent agrees to a shorter timeframe.

(i) The transition and employment designee required of each school district or shared services arrangement by TEC, §29.011, must complete the required training as developed by the commissioner of education and provide information about transition requirements and coordination among parents, students, and appropriate state agencies to ensure that school staff can communicate and collaborate effectively.

§89.1076.Interventions and Sanctions.

The Texas Education Agency (TEA) must establish and implement a system of interventions and sanctions[,] in accordance with the Individuals with Disabilities Education Act, 20 United States Code, §§1400 et seq. ; [,] Texas Education Code (TEC), §29.010; [~~, and~~] TEC, Chapter 39; and TEC, Chapter 39A, as necessary to ensure program effectiveness and compliance with federal and state requirements regarding the implementation of special education and related services. [~~In accordance with TEC, §39.102, the~~] TEA may combine any intervention and sanction. The system of interventions and sanctions will include, but not be limited to, the following:

(1) onsite [~~on-site~~] review for failure to meet program or compliance requirements;

(2) required program or compliance audits [~~fiscal audit of specific programs and/or of the district~~], paid for by the district;

(3) required submission of corrective actions, including, but not limited to, compensatory services, paid for by the district;

(4) required technical assistance and support, paid for by the district;

(5) public release of program or compliance review or audit findings;

(6) special investigation and/or follow-up verification visits;

(7) required public hearing conducted by the local school board of trustees;

(8) assignment of a [~~special purpose~~] monitor, conservator, or management team,as these terms are defined in TEC, Chapter 39A, paid for by the district;

(9) hearing before the commissioner of education or designee;

(10) placing specific conditions on grant funds, reduction in payment, required redirection of funds, or withholding of funds;

(11) lowering of the special education monitoring/compliance status and/or the accreditation rating of the district; and/or

(12) other authorized interventions and sanctions as determined by the commissioner.

§89.1085.Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services.

(a) A student's admission, review, and dismissal (ARD) committee may place the student at the Texas School for the Blind and Visually Impaired (TSBVI) or the Texas School for the Deaf (TSD) in accordance with the provisions of 34 Code of Federal Regulations (CFR), Part 300; [,] the Texas Education Code (TEC), including, specifically, §§30.021, 30.051, and 30.057; [,] and the applicable rules of this subchapter.

(b) In the event that a student is placed by his or her ARD committee at either the TSBVI or the TSD, the student's "resident school district," as defined in subsection (e) of this section, shall be responsible for assuring that a free appropriate public education (FAPE) is provided to the student at the TSBVI or the TSD, as applicable, in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §§1400 et seq.; [,] 34 CFR, Part 300; [,] state statutes; [,] and rules of the State Board of Education (SBOE), the State Board for Educator Certification (SBEC), and the commissioner of education. If representatives of the resident school district and representatives of the TSBVI or the TSD disagree, as members of a student's ARD committee, with respect to a recommendation by one or more members of the student's ARD committee that the student be evaluated for placement, initially placed, or continued to be placed at the TSBVI or TSD, as applicable, the representatives of the resident school district and the TSBVI or TSD, as applicable, may seek resolution through the mediation procedures adopted by the Texas Education Agency or through any due process hearing to which the resident school district or the TSBVI or the TSD are entitled under the IDEA, 20 USC, §§1400, et seq.

(c) When a student's ARD committee places the student at the TSBVI or the TSD, the student's resident school district shall comply with the following requirements.

(1) For each student, the resident school district shall list those services in the student's individualized education program (IEP) which the TSBVI or the TSD can appropriately provide.

(2) The district may make an onsite [~~on-site~~ ] visit to verify that the TSBVI or the TSD can and will offer the services listed in the individual student's IEP and to ensure that the school offers an appropriate educational program for the student.

(3) For each student, the resident school district shall include in the student's IEP the criteria and estimated timelines [~~time lines~~] for returning the student to the resident school district.

(d) In addition to the provisions of subsections (a)-(c) of this section, and as provided in TEC, §30.057, the TSD shall provide services in accordance with TEC, §30.051, to any eligible student with a disability for whom the TSD is an appropriate placement if the student has been referred for admission by the student's parent or legal guardian, a person with legal authority to act in place of the parent or legal guardian, or the student, if the student is age 18 or older, at any time during the school year if the referring person chooses the TSD as the appropriate placement for the student rather than placement in the student's resident school district or regional program determined by the student's ARD committee. For students placed at the TSD pursuant to this subsection, the TSD shall be responsible for assuring that a FAPE is provided to the student at the TSD, in accordance with IDEA, 20 USC, §§1400, et seq.; [,] 34 CFR, Part 300; [,] state statutes; [,] and rules of the SBOE, the SBEC, and the commissioner [~~of education~~].

(e) For purposes of this section and §89.1090 of this title (relating to Transportation of Students Placed in [~~a Residential Setting, Including~~] the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf), the "resident school district" is the school district in which the student would be enrolled under TEC, §25.001, if the student were not placed at the TSBVI or the TSD. If the student is enrolled in an open-enrollment charter school at the time of placement in the TSBVI or TSD, then the open-enrollment charter school is considered the resident school district for purposes of this section and §89.1090 of this title, since the student's IEP will include the criteria and estimated timelines for returning the student to that school.

§89.1090.Transportation of Students Placed in [~~a Residential Setting, Including~~] the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf.

(a) For each student placed [~~in a residential setting~~] by the student's admission, review, and dismissal (ARD) committee[~~, including those students placed~~] in the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf that includes placement at the residential campus, the resident school district , as defined in §89.1085 of this title (relating to Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services), shall be responsible for transportation from the campus as well as the return to campus [~~at the beginning and end of the term and for regularly scheduled school holidays~~] when all students are expected to leave the residential campus. This includes weekends, holiday breaks, and beginning and end of school terms, when all students are expected to leave the campus because the school will not be providing services.

(b) The resident school district is not responsible for transportation costs for students placed in these [~~residential~~] settings by their parents.

(c) Transportation costs shall not exceed state approved per diem and mileage rates unless excess costs can be justified and documented. Transportation shall be arranged by the school using the most cost efficient means.

(d) When it is necessary for the safety of the student, as determined by the ARD committee and as documented in the student's individualized education program, for an adult designated by the ARD committee to accompany the student, round-trip transportation for that adult shall also be provided.

(e) The resident school district and the school [~~residential facility~~] shall coordinate to ensure that students are transported safely, including the periods of departure and arrival.

§89.1092.Contracting for Nonpublic Residential [~~Educational~~] Placements for the Provision of a Free Appropriate Public Education (FAPE) [~~Students with Disabilities~~].

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

(1) School district--The definition of a school district includes independent school districts established under Texas Education Code (TEC), Chapter 11, Subchapters A-F, and open-enrollment charter schools established under TEC, Chapter 12, Subchapter D.

(2) Nonpublic residential program--A nonpublic residential program includes the provision of special education and related services to one or more Texas public school students by someone other than school district personnel at a facility not operated by a school district. A student placed in this program has been determined by his or her admission, review, and dismissal (ARD) committee to require a residential placement in order to facilitate the student's attainment of reasonable educational progress and to provide the student a free appropriate public education (FAPE). It is not a placement intended primarily for the provision of medical care and treatment.

(3) Nonpublic residential program provider--A nonpublic residential program provider is a public or private entity with one or more facilities that contracts with a school district for the provision of some or all of a student's special education and related services when the school district is unable to provide those services and maintains current and valid licensure by the Texas Department of Family and Protective Services, the Texas Health and Human Services Commission, or another appropriate state agency. A provider that a school district contracts with only for the provision of related services is not subject to the requirements of this section.

(b) [~~(a)~~] Nonpublic residential program requirements [~~Residential placement~~]. A school district may contract with a nonpublic [~~for~~] residential program provider [~~placement of a student~~] when the student's ARD [~~admission, review, and dismissal (ARD)~~] committee determines that a residential placement is necessary in order for the student to receive a FAPE in accordance with the requirements of this section [~~free appropriate public education (FAPE)~~].

(1) Before a student's ARD committee places a student with a disability in, or refers a student to, a nonpublic residential program, the ARD committee shall initiate and conduct a meeting to develop an individualized education program (IEP) for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner of education rules in this chapter'.

[(1) A school district may contract for a residential placement of a student only with either public or private residential facilities that maintain current and valid licensure by the Texas Department of Aging and Disability Services, Texas Department of Family and Protective Services, or Department of State Health Services for the particular disabling condition and age of the student. A school district may contract for an out-of-state residential placement in accordance with the provisions of subsection (d)(3) of this section.]

(2) Before a student's ARD committee places a student with a disability in, or refers a student with a disability to, a nonpublic residential program, the district shall initiate and conduct an in-person, onsite review of the program provider's facility and program to ensure that the program is appropriate for meeting the student's educational needs.

[(2) Subject to subsections (c) and (d) of this section, the district may contract with a residential facility to provide some or all of the special education services listed in the contracted student's individualized education program (IEP). If the facility provides any educational services listed in the student's IEP, the facility's education program must be approved by the commissioner of education in accordance with subsection (d) of this section.]

(3) The appropriateness of the placement and the facility shall be documented in the IEP annually. The student's ARD committee may only recommend a nonpublic residential program if the committee determines that the nature and severity of the student's disability and special education needs are such that the student cannot be satisfactorily educated in the school district.

(A) The student's IEP must list which services the school district is unable to provide and which services the nonpublic residential program will provide.

(B) At the time the ARD committee determines placement, the ARD committee shall establish, in writing, criteria and a projected date for the student's return to the school district and document this information in the IEP.

(C) The school district shall make a minimum of two onsite, in-person visits annually, one announced and one unannounced, and more often if directed by the Texas Education Agency (TEA), to:

(i) verify that the program provider can and will provide the services listed in the student's IEP that the provider has agreed to provide to the student;

(ii) obtain written verification that the facility meets minimum standards for health and safety and holds all applicable local and state accreditation and permit requirements;

(iii) verify that the program provider's staff who work with the student have been subject to criminal background checks (to include fingerprinting) that meet the standards applicable to public school employees;

(iv) verify that the program provider, in conjunction with the school district, has developed written policies, procedures, and operating guidelines that set forth necessary standards and steps to be followed to ensure the student maintains the same rights as other public school students, including when the student is subject to emergency behavioral interventions or disciplinary actions; and

(v) verify that the educational program provided at the facility is appropriate and the placement is the least restrictive environment for the student.

[(3) A school district that intends to contract for residential placement of a student with a residential facility under this section shall notify the Texas Education Agency (TEA) of its intent to contract for the residential placement through the residential application process described in subsection (c) of this section.]

~~[(4) The school district has the following responsibilities when making a residential placement.]~~

[(A) Before the school district places a student with a disability in, or refers a student to, a residential facility, the district shall initiate and conduct a meeting of the student's ARD committee to develop an IEP for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner rules.]

~~[(B) For each student, the services that the school district is unable to provide and that the facility will provide shall be listed in the student's IEP.]~~

~~[(C) For each student, the ARD committee shall establish, in writing, criteria and estimated timelines for the student's return to the school district.]~~

[(D) The appropriateness of the facility for each student residentially placed shall be documented in the IEP. General screening by a regional education service center is not sufficient to meet the requirements of this subsection.]

[(E) The school district shall make one announced initial visit and two subsequent onsite visits annually, one announced and one unannounced, to verify that the residential facility can and will provide the services listed in the student's IEP that the facility has agreed to provide to the student.]

[(F) For each student placed in a residential facility (both initial and continuing placements), the school district shall verify, during the initial residential placement ARD committee meeting and each subsequent annual ARD committee meeting, that:]

~~[(i) the facility meets minimum standards for health and safety;]~~

~~[(ii) residential placement is needed and is documented in the IEP; and]~~

~~[(iii) the educational program provided at the residential facility is appropriate and the placement is the least restrictive environment for the student.]~~

(4) [~~(G)~~] The placement of more than one student in the same [~~residential~~] facility may be considered in the same onsite visit to the [a] facility. However [~~; however~~], the IEP of each student must be individually reviewed and a determination of appropriateness of placement and service must be made for each student.

(5) [~~(H)~~] When a student who is [~~residentially~~] placed by a school district in a nonpublic residential program changes his or her residence to another Texas school district and the student continues in the contracted placement, the school district that negotiated the contract shall be responsible for the residential contract for the remainder of the school year.

(c) [~~(b)~~] Notification. Within 30 calendar days from an ARD committee's decision to place or continue the placement of a student in a nonpublic residential [~~education~~] program, a school district must electronically submit to TEA [~~the Texas Education Agency (TEA)~~] notice of, and information regarding, the placement in accordance with submission procedures specified by TEA.

(1) If the nonpublic residential [~~education~~ ] program provider is on the commissioner's list of approved providers [~~residential education programs~~], TEA will review the student's IEP and placement as required by 34 CFR, §300.120, and, in the case of a placement in or referral to a private school or facility, 34 CFR, §300.146. After review, TEA will notify the school district whether federal or state funds for the [~~residential education~~] program placement are approved. If TEA does not approve the use of funds, it will notify the school district of the basis for the non-approval.

(2) If the nonpublic residential [~~education~~ ] program provider is not on the commissioner's list of approved providers [~~residential education programs~~], TEA will begin the approval procedures described in subsection (d) [~~(d)(1)~~] of this section. School districts must ensure there is no delay in implementing a child's IEP in accordance with 34 CFR, §300.103(c).

(3) If a nonpublic residential [~~education~~] program placement is ordered by a special education hearing officer or court of competent jurisdiction, the school district must notify TEA of the order within 30 calendar days. The [~~residential education~~ ] program provider serving the student is not required to go through the approval procedures described in subsection (d) [~~(d)(1)~~] of this section for the ordered placement. If, however, the school district or other school districts intend to place other students in the [~~residential education~~] program, the [~~residential education~~] program provider will be required to go through the approval procedures to be included on the commissioner's list of approved providers [~~residential programs~~].

(d) Approval of a nonpublic residential program. Nonpublic residential program providers must have their educational programs approved for contracting purposes by the commissioner. Approvals and reapprovals will only be considered for those providers that have a contract already in place with a school district for the placement of one or more students or that have a pending request from a school district. Reapproval can be for one, two, or three years, at the discretion of TEA.

(1) For a program provider to be approved or reapproved, the school district must electronically submit to TEA notice of, and information regarding, the placement in accordance with submission procedures specified by TEA. TEA shall begin approval procedures and conduct an onsite visit to the provider's facility within 30 calendar days after TEA has been notified by the school district and has received the required submissions as outlined by TEA. Initial approval of the provider shall be for one calendar year.

(2) The program provider may be approved or reapproved only after, at minimum, a programmatic evaluation and a review of personnel qualifications, adequacy of physical plant and equipment, and curriculum content.

(3) TEA may place conditions on the provider to ensure the provision of a FAPE for students who have been placed in a nonpublic residential program during the provider's approval period or during a reapproval process.

(4) If TEA does not approve, does not reapprove, or withdraws an approval from a program provider, a school district must take steps to remove any students currently placed at the provider's facility, or cancel a student's planned placement, as expeditiously as possible.

(5) TEA may conduct announced or unannounced onsite visits at a program provider's facility that is serving one or more Texas public school students in accordance with this section and will monitor the program provider's compliance with the requirements of this section.

(e) [~~(c)~~] Criteria for approval [~~Application approval process~~]. Requests for approval of state and federal funding for nonpublic residential program placements [~~residentially placed students~~] shall be negotiated on an individual student basis through a residential application submitted by the school district to TEA.

(1) A residential application may be submitted for educational purposes only. The residential application shall not be approved if the application indicates that the:

(A) placement is due primarily to the student's medical problems;

(B) placement is due primarily to problems in the student's home;

(C) district does not have a plan, including criteria and a projected date [~~timelines and criteria~~], for the student's return to the local school program;

(D) district did not attempt to implement lesser restrictive placements prior to residential placement (except in emergency situations as documented by the student's ARD committee);

(E) placement is not cost effective when compared with other alternative placements; or

(F) residential facility provides unfundable or unapprovable services.

(2) The [~~residential~~] placement, if approved by TEA, shall be funded as follows:

(A) the education cost of nonpublic residential program contracts shall be funded with state funds on the same basis as nonpublic day program [~~school~~] contract costs according to TEC, §48.102 [~~Texas Education Code, §42.151~~];

(B) related services and residential costs for nonpublic residential program contracts [~~contract students~~] shall be funded from a combination of fund sources. After expending any other available funds, the district must expend its local tax share per average daily attendance and 25% of its Individuals with Disabilities Education Act, Part B[,] (IDEA-B), formula base planning amount [~~tentative entitlement~~] (or an equivalent amount of state and/or local funds) for related services and residential costs. If this is not sufficient to cover all costs of the [~~residential~~] placement, the district through the residential application process may receive [~~additional~~] IDEA-B discretionary residential funds to pay the balance of the nonpublic residential contract placement(s) costs; and

(C) funds generated by the formula for residential costs described in subparagraph (B) of this paragraph shall not exceed the daily rate recommended by the Texas Department of Family and Protective Services for the general residential operation intense service [~~specific~~] level of care [~~in which the student is placed~~].

(3) Contracts between school districts and approved nonpublic residential program providers shall not begin prior to August 1 of the contracted program year and must not extend past July 31.

(4) Amendments to a contract must be electronically submitted to TEA in accordance with submission procedures specified by TEA no later than 30 calendar days from the change in placement or services.

[(d) Approval of the education program for facilities that provide educational services. Residential facilities that provide educational services must have their educational programs approved for contracting purposes by the commissioner.]

[(1) If the education program of a residential facility that is not approved by the commissioner is being considered for a residential placement by a local school district, the school district should notify TEA in writing of its intent to place a student at the facility. TEA shall begin approval procedures and conduct an onsite visit to the facility within 30 calendar days after TEA has been notified by the local school district. Approval of the education program of a residential facility may be for one, two, or three years.]

[(2) The commissioner shall renew approvals and issue new approvals only for those facilities that have contract students already placed or that have a pending request for residential placement from a school district. This approval does not apply to residential facilities that only provide related services or residential facilities in which the local accredited school district where the facility is located provides the educational program.]

(f) [~~(3)~~] Contract for out-of-state nonpublic residential programs. School districts that contract for out-of-state nonpublic residential programs [~~placement~~] shall do so in accordance with the rules [~~for in-state residential placement~~] in this section, except that the program provider [~~facility~~] must be approved by the appropriate agency in the state in which the facility is located rather than by TEA.

§89.1094.Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of a Free Appropriate Public Education (FAPE) [~~Students Receiving Special Education and Related Services in an Off-Campus Program~~].

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Nonpublic or non-district operated day program--A nonpublic or non-district operated day program includes the provision of special education and related services to one or more Texas public school students during school hours by someone other than school district personnel in a facility not operated by a school district. A student placed in this program has been determined by his or her admission, review, and dismissal (ARD) committee to require a day placement in order to facilitate the student's attainment of reasonable educational progress and to provide the student a free appropriate public education (FAPE).

(2) Nonpublic or non-district operated day program provider--A nonpublic or non-district operated day program provider is an entity with one or more facilities that contracts with a school district for the provision of some or all of a student's special education and related services when the school district is unable to provide these services. These providers include:

(A) a county system operating under application of former law as provided in Texas Education Code (TEC), §11.301;

(B) a regional education service center established under TEC, Chapter 8;

(D) any other public or private entity with which a school district enters into a contract under TEC, §11.157(a), for the provision of special education services in a facility not operated by a school district.

(3) [~~(1)~~] School district--The definition of a school district includes independent school districts established under TEC [~~Texas Education Code (TEC)~~], Chapter 11, Subchapters A-F, and open-enrollment charter schools established under TEC, Chapter 12, Subchapter D.

[(2) Off-campus program--An off-campus program includes special education and related services provided during school hours by someone other than school district personnel in a facility other than a school district campus.]

~~[(3) Off-campus program provider--An off-campus program provider is an entity that provides the services identified in subsection (a)(2) of this section and includes:]~~

~~[(A) a county system operating under application of former law as provided in TEC, §11.301;]~~

~~[(B) a regional education service center established under TEC, Chapter 8;]~~

~~[(C) a nonpublic day school; or]~~

[(D) any other public or private entity with which a school district enters into a contract under TEC, §11.157(a), for the provision of special education services in a facility other than a school district campus operated by a school district.]

(b) Nonpublic or non-district operated day program requirements [~~Off-campus program placement~~] . A school district may contract with a nonpublic or non-district operated day [~~an off-campus~~] program provider [~~to provide some or all of the special education and related services to a student~~] in accordance with the requirements in this section.

[(1) Before the school district places a student with a disability in, or refers a student to, an off-campus program, the district shall initiate and conduct an onsite review to ensure that the off-campus program is appropriate for meeting the student's educational needs.]

(1) [~~(2)~~] Before a student's ARD committee [~~the school district~~] places a student with a disability in, or refers a student to, a nonpublic or non-district operated day [~~an off-campus~~] program, the ARD committee [~~district~~] shall initiate and conduct a meeting [~~of the student's admission, review, and dismissal (ARD) committee~~] to develop an individualized education program (IEP) for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner of education rules in this chapter [~~Chapter 89 of this title (relating to Commissioner's Rules Concerning Special Education Services)~~].

(2) Before a student's ARD committee places a student with a disability in, or refers a student to, a nonpublic or non-district operated day program, the district shall initiate and conduct an onsite, in- person review of the program provider's facility to ensure that the program is appropriate for meeting the student's educational needs.

(3) The appropriateness of the placement and the facility [~~off-campus program for each student placed~~] shall be documented in the IEP annually. The student's ARD committee may only recommend a nonpublic or non-district operated day [~~an off-campus~~] program [~~placement for a student~~] if the committee determines that the nature and severity of the student's disability and special education needs are such that the student cannot be satisfactorily educated in the school district.

(A) The student's IEP must list which services the school district is unable to provide and which services the program [~~facility~~] will provide.

(B) At the time the ARD committee determines placement, the ARD committee shall establish, in writing, criteria and a projected date [~~estimated timelines~~] for the student's return to the school district and document this information in the IEP.

(C) The school district shall make a minimum of two onsite, in-person [~~on-site~~] visits annually, one announced and one unannounced , and more often if directed by TEA, to:

(i) verify that the program provider [~~off-campus program~~] can, and will, provide the services listed in the student's IEP that the provider [~~off-campus program~~] has agreed to provide to the student;

(ii) obtain written verification that the facility meets minimum standards for health and safety and holds all applicable local and state accreditation and permit requirements; [~~and~~]

(v) [~~(iii)~~] verify that the educational program provided at the [~~off-campus program~~] facility is the least restrictive environment for the student.

(4) The placement of more than one student in the same [~~off-campus program~~] facility may be considered in the same onsite [~~on-site~~] visit to the [a] facility. However, the IEP of each student must be individually reviewed, and a determination of appropriateness of placement and services must be made for each student.

(c) Notification. Within 30 calendar days from an ARD committee's decision to place or continue the placement of a student in a nonpublic or non-district operated day [~~an off-campus~~ ] program, a school district must electronically submit to the Texas Education Agency (TEA) notice of, and information regarding, the placement in accordance with submission procedures specified by [~~the~~] TEA.

(1) If the nonpublic or non-district operated day [~~off-campus~~] program provider is on the commissioner's list of approved providers, [~~off-campus programs, the~~] TEA will review the student's IEP and placement as required by 34 CFR, §300.120, and, in the case of a placement in or referral to a private school or facility, 34 CFR, §300.146. After review, [~~the~~] TEA will notify the school district whether federal or state funds for the [~~off-campus~~] program placement are approved. If [~~the~~] TEA does not approve the use of funds, it will notify the school district of the basis for the non-approval.

(2) If the nonpublic or non-district day [~~off-campus~~] program provider is not on the commissioner's list of approved providers, [~~off-campus programs, the~~] TEA will begin the approval procedures described in subsection (d) of this section. School districts must ensure there is no delay in implementing a child's IEP in accordance with 34 CFR, §300.103(c).

(3) If a nonpublic or non-district operated day [~~an off-campus~~] program placement is ordered by a special education hearing officer or court of competent jurisdiction, the school district must notify [~~the~~] TEA of the order within 30 calendar days. The [~~off-campus~~] program provider serving the student is not required to go through the approval procedures described in subsection (d) of this section for the ordered placement. If, however, the school district or other school districts intend to place other students in the [~~off-campus~~] program, the [~~off-campus~~] program provider will be required to go through the approval procedures to be included on the commissioner's list of approved providers [~~off-campus programs~~].

(d) Approval of the nonpublic or non-district operated day [~~off-campus~~] program. Nonpublic or non-district operated day program providers [~~Off-campus programs~~] must have their educational programs approved for contracting purposes by the commissioner. Approvals and reapprovals will only be considered for those providers that have a contract already in place with a school district for the placement of one or more students or that have a pending request from a school district. Reapproval can be for one, two, or three years, at the discretion of TEA.

(1) For a program provider to be approved or reapproved, the school district must electronically submit to [~~the~~] TEA notice of, and information regarding, the placement in accordance with submission procedures specified by [~~the~~ ] TEA. [~~The~~] TEA shall begin approval procedures and conduct an onsite [~~on-site~~] visit to the provider's facility within 30 calendar days after [~~the~~] TEA has been notified by the school district and has received the required submissions as outlined by TEA. Initial approval of the provider [~~off-campus program~~] shall be for one calendar year.

(2) The [~~off-campus~~] program provider may be approved or reapproved only after, at minimum, a programmatic evaluation and a review of personnel qualifications, adequacy of physical plant and equipment, and curriculum content.

(3) TEA may place conditions on the provider to ensure the provision of a FAPE for students who have been placed in a nonpublic or non-district operated day program during the provider's approval period or during a reapproval process.

[(3) The commissioner shall renew approvals and issue new approvals only for those facilities that have a contract already in place with a school district for the placement of one or more students or that have a pending request from a school district. This approval does not apply to facilities that only provide related services. Nor does it apply to facilities when the school district, within which the facility is located, provides the educational program. Re-approval of the off-campus program may be for one, two, or three years at the TEA's discretion.]

(e) Funding procedures and other requirements. The cost of nonpublic or non-district operated day [~~off-campus~~ ] program placements will be funded according to TEC, §48.102 (Special Education); [~~, and~~] §89.1005(e) of this title (relating to Instructional Arrangements and Settings) ; and §129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook).

(1) Contracts between school districts and approved nonpublic or non-district operated day program providers shall not begin prior to August 1 of the contracted program year and must not extend past July 31 [~~off-campus programs must not exceed a school district's fiscal year and shall not begin prior to July 1 of the contracted fiscal year~~].

(2) Amendments to a contract must be electronically submitted to [~~the~~] TEA in accordance with submission procedures specified by [~~the~~] TEA no later than 30 calendar days from the change in placement or services [~~within the school district's fiscal year~~].

(3) If a student who is placed in a nonpublic or non-district operated day [~~an off-campus~~] program by a school district changes his or her residence to another Texas school district during the school year, the school district must notify [~~the~~] TEA within 10 calendar days of the date on which the school district ceased contracting with the [~~off-campus~~] program provider for the student's placement. The student's new school district must meet the requirements of 34 CFR, §300.323(e), by providing comparable services to those described in the student's IEP from the previous school district until the new school district either adopts the student's IEP from the previous school district or develops, adopts, and implements a new IEP. The new school district must comply with all procedures described in this section for continued or new [~~off-campus~~] program placement.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2024.

TRD-202401686

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Earliest possible date of adoption: June 2, 2024

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