PART 2. TEXAS EDUCATION AGENCY
CHAPTER 97. PLANNING AND ACCOUNTABILITY
SUBCHAPTER EE. ACCREDITATION STATUS, STANDARDS, AND SANCTIONS
DIVISION 1. STATUS, STANDARDS, AND SANCTIONS
The Texas Education Agency (TEA) adopts an amendment to §97.1071, concerning special program performance and monitoring, review, and supports. The amendment is adopted with changes to the proposed text as published in the May 24, 2024 issue of the Texas Register (49 TexReg 3692) and will be republished. The adopted amendment clarifies current practice and aligns with federal guidance related to state supervision requirements.
REASONED JUSTIFICATION: Section 97.1071 defines criteria for special program monitoring, review, and support that a school district or open-enrollment charter school must engage in with TEA.
New subsection (a) defines school districts to include open-enrollment charter schools.
Subsection (b) is amended to include 34 Code of Federal Regulations, §§300.600-300.609, as part of the compliance requirements that school districts are subject to for general supervision and monitoring. Based on public comment, the wording in subsection (b) was further revised at adoption to clarify that the federal regulations that are referenced are the responsibility of TEA. Subsection (b)(2) is amended to update a cross reference to include Texas Education Code (TEC), §39.003 and §39.004, as part of the activities for intensive or special investigative remote or on-site reviews.
New subsection (d) is added to provide compliance requirements for program effectiveness to include emergent bilingual students in TEC, §29.062. This TEC citation is also added to subsection (j).
The adopted changes to subsections (e), (f), and (j) update a cross reference to 19 TAC §97.1001, where provisions for Results Driven Accountability are addressed.
Subsection (h) is amended to change the cyclical monitoring process from discretionary to mandatory as required by federal guidance.
Subsection (k) is amended to include reference to 19 TAC §89.1076, which describes the system of interventions and sanctions established to ensure program effectiveness and compliance with federal and state requirements for special education and related services. Guidelines that were duplicative of those established in §89.1076 were removed.
To comply with current federal requirements as to how a state will address what is termed an "area of concern," new subsection (l) is added to establish a process that provides for the investigation and issuance of findings regarding alleged violations of Individuals with Disabilities Education (IDEA), Part B, or a state statute or administrative rule created to implement IDEA. Adopted new subsection (l) defines "area of concern"; provides guidelines that apply to the process of investigating and issuing findings for alleged violations of IDEA, Part B; and describes the actions TEA may take when receiving, investigating, substantiating, and acting on a substantiated area of concern. Based on public comment, additional revisions made at adoption clarify the process by defining "credible allegation" and providing more information concerning how an area of concern becomes a credible allegation and the processes involved with each investigation.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began May 24, 2024, and ended June 24, 2024, and included public hearings on May 30 and 31, 2024. Following is a summary of public comments received and agency responses.
Comment: The Texas Society of Interpreters for the Deaf, Policy and Advocacy Committee, commented that a new subsection should be added stating that TEA monitoring activities will include compliance for students who are deaf or hard of hearing under TEC, Chapter 29, Subchapter I. Disability Rights Texas submitted a similar comment with the suggestion to also add the relevant provisions of TEC, Chapter 30, regarding Regional Day School Programs for the Deaf.
Response: The agency disagrees to add this statement at this time, instead relying on TEA's broad supervisory and monitoring authority under federal regulations. However, in the coming months, the agency intends to engage a group of stakeholders in the issues raised in the comment submission, as the agency begins work on revising the Deaf and Hard of Hearing State Plan during the upcoming school year.
Comment: The Texas Classroom Teachers Association commented that a provision should be added to the rule that the identities of employees who report allegations of noncompliance with IDEA should be kept confidential with the exception of a law enforcement officer for the purposes of a criminal investigation.
Response: The agency disagrees. An area of concern and credible allegation, as described by this rule, is a very nuanced instance of how the agency becomes aware of a possible noncompliance issue. Typically, allegations of noncompliance are handled through the established dispute resolution processes. As the agency can become aware of an area of concern through various ways, there is no inherent right to confidentiality in this case.
Comment: The Texas Council of Administrators of Special Education (TCASE) commented that subsection (b) should be reworded to clarify that the federal regulations mentioned pertain to the agency's authority rather than school districts.
Response: The agency agrees and has updated the language in subsection (b) at adoption to clarify that the agency is implementing the requirements of subsection (b).
Comment: TCASE commented on new subsection (l) that the terms "area of concern" and "credible allegation," and the process and investigations surrounding these, are misused or misapplied.
Response: The agency agrees that clarification is needed. The agency has made the following changes to subsection (l) at adoption: adding a definition of "credible allegation" so that it accompanies the definition of "area of concern"; clarifying that the process will first begin with determining if an area of concern results in a credible allegation; and adding detail about what occurs when an area of concern is determined to be a credible allegation.
Comment: TCASE commented that the area of concern will come from internal processes, rather than external sources, since external sources would use the typical dispute resolution processes if they have an allegation of IDEA noncompliance.
Response: The agency disagrees. Individuals cannot be forced to use dispute resolution methods, and the federal guidance is clear that if the agency is made aware of a credible allegation, the agency must do due diligence to determine if noncompliance occurred.
Comment: TCASE commented that the wording in this rule should clearly differentiate and delineate between general supervision responsibilities and dispute resolution methods.
Response: The agency disagrees that changes are necessary. While the area of concern process is part of the agency's supervision responsibilities, it cannot be completely severed from the dispute resolution processes.
Comment: TCASE commented that districts should always be contacted if the agency has determined that a credible allegation exists.
Response: The agency agrees and has updated the rule text to include subsection (l)(8) at adoption.
Comment: TCASE commented that allegations should align with the statute of limitations for complaints.
Response: The agency disagrees, as federal guidance does not require it. In the future, the agency intends to explore whether adding a time limit after which it will not engage in the investigative process would be beneficial.
Comment: TCASE commented that gathering evidence would be a more appropriate term to use in the agency's investigative process.
Response: The agency agrees and has updated this language in subsection (l)(7)(D) and (G) at adoption.
Comment: TCASE commented that the interventions and sanctions applied when noncompliance is found should only be cross referenced to subsection (h) of this rule and to 19 TAC §89.1076.
Response: The agency disagrees. As states continue to receive more guidance from the federal department of education, it is more appropriate to denote those actions that are within TEA's supervisory authority to implement.
Comment: TCASE commented that details around any findings and a written report should be included in this rule, along with a district's right to correct misinformation.
Response: The agency disagrees with adding this type of detail. Once noncompliance is found, the agency will follow the same processes as other instances of noncompliance that are discovered outside the area of concern process.
STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §7.028, which establishes limitations on compliance monitoring; TEC, §28.006, which establishes requirements for reading diagnostic instruments; TEC, §29.062, which establishes compliance requirements for programs designed for emergent bilingual students; TEC, §38.003, which establishes criteria for screening and treatment for dyslexia and related disorders; TEC, §39.003, which establishes the authority for special investigations; TEC, §39.004, which establishes the conduct of special investigations; TEC, §39.056, which establishes criteria for monitoring reviews; 34 Code of Federal Regulations (CFR), §300.149, which lists the state's responsibility for general supervision of the Individuals with Disabilities Education Act (IDEA), Part B; and 34 CFR, §§300.600-300.609, which describe the requirements for state monitoring and enforcement of IDEA, Part B.
CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §§7.028, 28.006, 29.062, 38.003, 39.003, 39.004, and 39.056; and 34 Code of Federal Regulations, §§300.149 and 300.600-300.609.
§97.1071.Special Program Performance; Monitoring, Review, and Supports.
(a) For purposes of this section, school districts include open-enrollment charter schools.
(b) School districts are subject to general supervision and monitoring activities for compliance with state law and federal regulation, implemented by the Texas Education Agency (TEA) under 34 Code of Federal Regulations (CFR), §§300.600-300.609, and review of program implementation and effectiveness within certain special populations of students. Activities may include:
(1) random, targeted, or cyclical reviews authorized under Texas Education Code (TEC), §39.056, conducted remotely or on-site to identify problems implementing state and federal requirements and to provide support for development of reasonable and appropriate strategies to address identified problems; and/or
(2) intensive or special investigative remote or on-site reviews authorized under TEC, §39.003 and §39.004.
(c) Activities described in subsection (b) of this section are applicable for compliance with requirements for reading diagnosis in TEC, §28.006, and dyslexia and related disorders in TEC, §38.003, and §74.28 of this title (relating to Students with Dyslexia and Related Disorders).
(d) Activities described in subsection (b) of this section are applicable for compliance with requirements for program effectiveness for emergent bilingual students in TEC, §29.062.
(e) The commissioner of education shall assign school districts an annual determination level based on performance levels of certain special populations student groups under §97.1001 of this title (relating to Accountability Rating System) according to the following general criteria:
(1) the degree to which the district's performance reflects a need for targeted or intensive supports, as indicated by the seriousness, number, extent, and duration of the student performance, program effectiveness, and/or program compliance deficiencies identified by the Texas Education Agency (TEA);
(2) a comparison of the district's performance relative to aggregated state performance and state performance standards;
(3) a statistical distribution of districts exhibiting a comparable need for targeted support; and
(4) the length of time the performance standard has been in place and the length of time the district has exhibited deficiencies under the standard.
(f) In addition to performance levels determined under §97.1001 of this title, the commissioner may consider any other applicable information, such as:
(1) complaints investigation results;
(2) special education due process hearing decisions;
(3) data validation activities;
(4) integrity of assessment or financial data;
(5) longitudinal intervention history; and
(6) other federally required elements.
(g) The standards used to assign districts to specific determination levels under this section are established annually by the commissioner and communicated to all school districts. Determination level categories for assignment include:
(1) meets requirements;
(2) needs assistance;
(3) needs intervention; and
(4) needs substantial intervention.
(h) In addition to determination levels described in subsections (e) and (g) of this section, the commissioner shall develop a system of cyclical monitoring to ensure every district participates in general supervision activities. Based on a district's assigned determination level, as part of its cyclical monitoring process, or as part of compliance monitoring activities, a district may be required to implement and/or participate in:
(1) focused self-analysis of district data and program effectiveness;
(2) focused remote and/or on-site review;
(3) required stakeholder engagement;
(4) focused compliance reviews;
(5) strategic support and continuous improvement planning; and/or
(6) corrective action plan development.
(i) The commissioner shall notify in writing each district identified for review under this section as a result of assigned determination level or cyclical selection prior to requiring a district to implement or participate in any activities included in subsection (h)(1)-(6) of this section.
(j) Actions taken under this section are intended to assist the district in raising its performance and/or achieving compliance under §97.1001 of this title, statutory requirements in TEC, § §28.006, 29.062, and 38.003, and §74.28 of this title and do not preclude or substitute for a sanction under another provision of this subchapter.
(k) Actions taken under this section do not preclude or substitute for other responses to or consequences of program ineffectiveness or noncompliance identified by TEA, such as those described in §89.1076 of this title (relating to Interventions and Sanctions) and expanded oversight, including, but not limited to, frequent follow-up contacts with the district, submission of documentation verifying implementation of intervention activities and/or an improvement plan, and submission of district/program data.
(l) In exercising its general supervision authority under 34 CFR, §300.149 and §300.600, TEA has established a process that provides for the investigation and issuance of findings regarding credible allegations of violations of the Individuals with Disabilities Education Act (IDEA), Part B, or a state statute or administrative rule created to implement IDEA, that arise from an area of concern. The following guidelines shall apply to this process.
(1) "Area of concern" means that TEA has been made aware of an allegation regarding a violation of, or noncompliance with, a requirement of IDEA, Part B, or a state special education law or administrative rule.
(2) "Credible allegation" means that TEA has determined that an allegation arising from an area of concern is credible enough to investigate further to determine if a violation or noncompliance has occurred.
(3) Information and awareness of an area of concern may arise directly from TEA or from external sources.
(4) TEA will engage in a process to determine if an area of concern is determined to be a credible allegation, and, if determined credible, TEA will initiate an investigation to determine if findings of noncompliance will be issued.
(5) TEA will generally not engage in the process described in paragraph (7) of this subsection to determine if an area of concern is a credible allegation if it is a media report, social media post, or an anonymous report, unless TEA receives corroborating information and facts that a specific violation of state or federal law or rule has occurred if the allegation were to be confirmed true.
(6) When an individual or organization reports a special education area of concern, TEA may direct the individual or organization to the established dispute resolution processes. Depending on the frequency or specificity of the type of allegation made, TEA may engage in the activities described in paragraph (4) of this subsection.
(7) The process to determine if an area of concern is a credible allegation, as described in paragraph (4) of this subsection, may include one or more of the following actions:
(A) reviewing existing citations of noncompliance or any noncompliance identified within the last two school years on the same or similar alleged violation;
(B) reviewing filed state complaints that are in process of being investigated or that have been substantiated within the last two school years on the same or similar alleged violation;
(C) reviewing due process hearing decisions issued within the last two years in which the hearing officer's final written decision contains a finding of noncompliance on the same or similar alleged violation;
(D) gathering evidence from groups that represent or advocate for families and communities served by the district;
(E) reviewing and analyzing available student- or district-level data that relate to the alleged violation;
(F) reviewing and analyzing fiscal and program information, such as grant applications, contracts, self-assessments, and other special education documents submitted to TEA by the district; and
(G) any other activity or measure used to gather evidence within TEA's general supervision and monitoring authority.
(8) The investigation to determine if a credible allegation will result in the issuance of findings as described under paragraph (4) of this subsection will include contacting the school district that is the subject of the allegation and requesting a response from the school district. Additional investigative actions may include one or more of the following:
(A) conducting interviews with the district, staff, parents, or students;
(B) a referral for review or investigation by any other appropriate unit or division within TEA;
(C) utilizing the review and analysis of the activities conducted during the review under paragraph (7) of this subsection to determine if noncompliance is found; and
(D) any other activity or measure within TEA's general supervision and monitoring authority.
(9) TEA may apply any intervention or sanction within its authority if noncompliance or a violation is substantiated, including those described in subsection (h) of this section and §89.1076 of this title.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 29, 2024.
TRD-202404048
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: September 18, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 457-1497